Administration defends its powers to police 'indecent' TV content

By Brendan Sasso - 01/10/12 05:24 PM ET

A lawyer for the Obama administration defended the federal government's power to fine television stations for broadcasting "indecent" content, such as profanity or nudity, in oral arguments before the Supreme Court on Tuesday.

Lawyers for Fox and ABC urged the Supreme Court to rule that the Federal Communications Commission's (FCC) policy banning indecent content on over-the-air television violates the First Amendment's free-speech protections.

During the George W. Bush administration, the FCC adopted a tough anti-indecency policy, banning even unscripted "fleeting expletives" after singers Cher and Nicole Richie swore on live television during the Billboard Music Awards in 2002 and 2003. The FCC later fined ABC for an episode of "NYPD Blue" that showed a woman's naked rear.

The Supreme Court already ruled in the case, FCC v. Fox, upholding the FCC's indecency policy. But the court only addressed an administrative challenge, and sent the case back to a lower court to determine its constitutionality. That lower court struck down the policy as violating the First Amendment, and the Supreme Court agreed to re-hear the case.

Lawyers for the television stations argued that parents can prevent their children from seeing offensive content by using parental control features such as the V-chip.

They said fear of accidentally airing a curse word prevents television stations from covering important live events, such as the memorial service for Pat Tillman, a service member killed in Afghanistan.

They also argued the FCC's policy is unconstitutionally vague and arbitrary.

"A regime in which government officials decide years after the fact that seven seconds of rear nudity in this particular episode of 'NYPD Blue' is indecent, but 40 seconds of nudity, including full frontal nudity in 'Catch-22' is not; that expletives in a documentary about blues musicians is indecent, but even more of those expletives in a fictional movie about World War II is not, is constitutionally intolerable," Seth Waxman, a lawyer for ABC, said.

But Donald Verrilli, the solicitor general of the United States, said the government should have wide latitude to regulate content broadcast over public airwaves.

"In its previous decision in this case, the court observed that when a broadcast licensee takes a license for the free and exclusive use of a valuable part of the public domain, it also accepts enforceable public obligations," Verrilli said. "One of those enforceable obligations is the indecency restriction which Congress has instructed the Federal Communications Commission to enforce between the hours of 6 a.m. and 10 p.m."

Many of the justices seemed to lean toward agreeing with the government.

"All we are asking for, what the government is asking for, is a few channels where you can say I'm not going to — they are not going to hear the 'S'-word, the 'F'-word. They are not going to see nudity," Chief Justice John Roberts said.

Justice Antonin Scalia suggested the government should be able to require certain standards on the public airwaves.

"Sign me up as supporting Justice Kennedy's notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this court and the people that attend other federal courts," Scalia said. "It's a symbolic matter."

Justice Samuel Alito worried that if the court rules in favor of the stations, broadcast television could become "a lot of people parading around in the nude and a stream of expletives."

The lawyers for Fox and ABC argued that broadcast stations follow their own guidelines to avoid offending viewers.

A decision in the case is expected sometime in the coming months.