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From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.
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And I'm Melissa Block. Fleeting expletives are back in the news. The Supreme Court heard arguments today testing the constitutionality of an FCC regulation. Currently, the FCC can punish broadcasters with stiff fines for the fleeting use of vulgar language or nude images. The rule applies only to radio and over-the-air TV networks like Fox and ABC, not to cable TV.
Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: In 1978, the Supreme Court ruled that the FCC could punish broadcasters for vulgar language or images aired during prime time when children are more likely to be watching. But that was when a handful of TV networks were the sole purveyors of TV fare, and even then the agency regulated with a relatively light hand.
During the Bush administration, however, the FCC changed its rule to allow stiff fines for even fleeting and isolated use of dirty words or nudity. The agency immediately and retroactively cited the Fox Network for a live broadcast of the Billboard Awards when Cher and Nicole Richie used the F word and the agency fined ABC for a brief showing of a woman's nude buttocks during its drama "NYPD Blue."
The networks then went to court, contending that the new rule was so vague and arbitrary that it violated the free speech rights of the broadcasters. Today in the Supreme Court, Solicitor General Donald Verrilli representing the Obama administration said that with a broadcast license comes an obligation to meet certain decency standards and that Congress intended over-the-air broadcasters to provide a safe haven for family viewing.
Justice Ginsburg: But one cannot tell what's indecent and what isn't. The FCC, the censor, says "Saving Private Ryan," which is full of expletives, is OK. "Schindler's List," which has nudity, is OK. But "NYPD Blue" is not. Answer: We would concede that there's not perfect clarity in this rule, but this is a context-based rule and the alternative would be to ban all use of certain words and all nudity.
Justice Kennedy: What you're saying is that there's a public value in having a different standard for broadcast TV, even though when you channel surf, it's not readily apparent which channels are covered by the FCC rule and which are not. Justice Scalia: Just as we require a certain modicum of dress for the people that attend this court, the government is entitled to insist on a modicum of decency for those who get licenses to broadcast on the public airways.
Justice Kagan: I think what the networks are really saying is that even if some regulation is permissible, the FCC has not set any standards, and under its policy nobody can use dirty words and nudity except Steven Spielberg.
The lawyers representing the networks picked up that theme during their argument time. Carter Phillips, representing Fox: As we sit here today, the networks are facing literally thousands and thousands of ginned up computer-generated complaints that are holding up literally hundreds of TV license renewals so that the whole system has come to a screeching halt.
Chief Justice Roberts: Is there not a legitimate objective to have a safe harbor? Answer: There are many channels devoted to programming without bad language and others devoted only to children's programming. Justice Alito: But if we rule in your favor, will people who watch Fox be seeing a lot of people parading around in the nude and screaming expletives?
Phillips said that Fox and all the other networks have guidelines barring that and that advertisers wouldn't tolerate it either. Justice Alito: What would you put on that you are not able to put on now? Phillips responded with a list of events that have not been carried live for fear of the isolated events of remark: the Pat Tillman memorial service, football and basketball games, local news events. Justice Breyer, dryly: But what Fox was penalized for was two women on television who basically used a fleeting expletive, which seems to be naturally a part of their vocabulary.
Lawyer Seth Waxman representing ABC echoed the charge that government censorship with no rhyme or reason is unconstitutional. The situation is so unpredictable and arbitrary, said Waxman, that right now, the FCC has pending before it - and has for years - complaints about the opening of the last Olympics, which included a statue very much like some of the statues in this courtroom with bare breasts or buttocks.
At that, Justice Scalia craned his neck to look at the phrases on the wall and Waxman helpfully gestured: Right over here, Justice Scalia. At that point, the whole court, including Scalia, dissolved into laughter.
Nina Totenberg, NPR News, Washington.