March 22, 2023

Supreme Court Weighs Relevance of Decades-Old Broadcast Decency Rules

WASHINGTON — In a rollicking Supreme Court argument that was equal parts cultural criticism and First Amendment doctrine, the justices on Tuesday considered whether the government still has good reason to regulate cursing and nudity on broadcast television.

The legal bottom line was not easy to discern, though there seemed to be little sentiment for a sweeping overhaul of the current system, which subjects TV broadcasters to fines for showing vulgar programming that is constitutionally protected when presented on cable television or the Internet.

Justice Samuel A. Alito Jr. suggested that the court should not rush to resolve a question concerning a technology on its last legs.

“Broadcast TV is living on borrowed time,” he said. “It is not going to be long before it goes the way of vinyl records and eight-track tapes.”

In the meantime, though, a majority of the justices seemed content to leave in place the broad outlines of a regulatory structure built on rationales that have been undermined.

In 1978, the court said the Federal Communications Commission could restrict George Carlin’s famous “seven dirty words” monologue, which had been broadcast on the radio in the afternoon. The court relied on what it called the uniquely pervasive nature of broadcast media and its unique accessibility to children.

Neither point still holds, lawyers for Fox and ABC told the justices.

But Justice Antonin Scalia, who in other settings has been hostile to government regulation of speech, said there was value in holding the line here.

“This has a symbolic value,” he said, “just as we require a certain modicum of dress for the people that attend this court.”

“These are public airwaves,” Justice Scalia went on, adding: “I’m not sure it even has to relate to juveniles, to tell you the truth.”

Still, there was significant dissatisfaction among the justices with how the Federal Communications Commission has been using its authority.

“One cannot tell what’s indecent and what isn’t,” Justice Ruth Bader Ginsburg said, referring to the agency as “the censor.”

The commission has, for instance, said that the swearing in “Saving Private Ryan,” the Steven Spielberg war movie, was not indecent, while swearing by blues masters in a music documentary produced by Martin Scorsese was indecent.

Nudity in “Schindler’s List,” another Spielberg film, was allowed, but a few seconds of partial nudity in the television police drama “NYPD Blue” was not.

Justice Elena Kagan offered a summary. “The way that this policy seems to work,” she said, “it’s like nobody can use dirty words or nudity except for Steven Spielberg.”

Article source: