Can you say that on TV? The Supreme Court debates

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Solicitor General Donald Verrilli Jr. said that if the court were to overrule its 33-year-old decision, “the risk of a race to the bottom is real.”

But Carter Phillips, representing the networks in connection with the awards shows, said that little would change because broadcasters would remain sensitive to advertisers and viewers who don’t want the airwaves filled with dirty words and nudity.

Phillips and former Solicitor General Seth Waxman, arguing on behalf of ABC, noted that broadcasters could face fines from thousands of pending complaints, including some relating to the broadcast of the 2008 Summer Olympics in Beijing. The opening ceremonies “included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks,” Waxman said.

As some justices turned their gaze toward the sculpted marble panels at the top of the courtroom, Waxman pointed to the one above the bench and said, “Right over here, Justice Scalia.”

No one mentioned that those sculptures don’t appear on television, because the high court does not allow cameras.

The FCC policy under attack flowed from the court’s 1978 Pacifica decision, which upheld the FCC’s reprimand of a New York radio station for its mid-afternoon airing of a George Carlin monologue containing a 12-minute string of expletives.

For many years, the FCC did not take action against broadcasters for one-time uses of curse words. But, following several awards shows with cursing celebrities in 2002 and 2003, the FCC toughened its policy. It concluded that a one-free-expletive rule did not make sense as a way of keeping the airwaves free of indecency when children are likely to be watching television.

The 2nd U.S. Circuit Court of Appeals in New York declared the FCC policy unconstitutionally vague.

The Billboard Music Awards aired on Fox in both 2002 and 2003. Cher used the F-word the first year, and reality TV personality Nicole Richie uttered the F-word and S-word a year later. The FCC did not issue a fine in either case but said the broadcasts violated its policy.

The “NYPD Blue” episode led to fines only for stations in the Central and Mountain time zones, where the show aired at 9 p.m., a more child-friendly hour than the show’s 10 p.m. time slot in the East.

Justice Sonia Sotomayor is not taking part in the case because she served on the appeals court during its consideration of some of the issues involved.

A decision is expected by late June.

The case is FCC v. Fox Television Stations, 10-1293.

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