(WASHINGTON) — When the entertainer Cher launched an expletive on live broadcast television in 2002, she probably had little idea she was triggering a major test of the government’s ability to regulate content over the public airwaves.
On Tuesday, the Supreme Court will hear arguments in a case stemming from celebrities’ use of isolated expletives as well as images of partial nudity during primetime broadcast programming. The case involves Cher’s use of the F word on a Fox broadcast of the Billboard Music Awards and a similar outburst the following year on the same awards show by actress Nicole Richie.
The Court will also review an episode of ABC’s NYPD Blue that featured a seven-second shot of an adult woman’s nude buttocks. The Federal Communications Commission (FCC), charged with regulating public airwaves, found that the incidents violated its prohibitions against the broadcast of indecent material before 10 p.m.
At issue before the Court is whether the FCC’s current indecency-enforcement policy violates the Constitution. A lower court struck it down, ruling it was “impermissibly vague.” Fox Television, ABC, Inc. and other broadcasters argue that the current policy is arbitrary and puts a chill on broadcast speech.
“The FCC’s current enforcement policy, which subjects even isolated expletives or brief, scripted images to multi-million-dollar fines, cannot survive First Amendment scrutiny,” argues Carter G. Philipps in court papers on behalf of Fox Television Stations INC.
The broadcasters are urging the Court to overturn a 34-year-old precedent in a case called FCC v. Pacifica Foundation. At issue in that case was a broadcast of comedian George Carlin’s “filthy words” monologue, aired on a radio broadcast in the middle of the afternoon. After complaints from the public, the FCC ruled that the broadcast was indecent and could be subject to sanctions.
The Supreme Court rejected a First Amendment challenge to the FCC’s determination, finding, “of all forms of communication, broadcasting has the most limited First Amendment protection.” The Court ruled narrowly, finding in part that the broadcast medium is unique because, “material presented over the airwaves confronts the citizen, not only in public but in the privacy of the home.” The Court also found that,“broadcasting is uniquely accessible to children.”
But the broadcasters currently argue that much has changed since Pacifica was decided and that they should no longer be regulated more restrictively than other media such as cable and the Internet.
“Pacifica justified reduced First Amendment scrutiny of broadcast indecency regulation on the theory that broadcasting was uniquely pervasive and uniquely accessible to children,” writes Seth P. Waxman, an attorney representing ABC, Inc. “Neither predicate is true today.”
Waxman points out that today the vast majority of households receive television through cable or satellite and are exposed to the Internet.
“Over the past three decades,” Phillips writes, “the media marketplace has changed dramatically, thoroughly undermining Pacifica’s rational for its unequal treatment of broadcast speech under the First Amendment.”
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