- Associated Press - Tuesday, January 10, 2012

WASHINGTON (AP) - The Supreme Court debated whether policing curse words and nudity on broadcast television makes sense in the cable era, with one justice suggesting it’s a moot point at a time when broadcast TV seems headed the way of “vinyl records and 8-track tapes.”

The justices engaged in colorful give-and-take Tuesday with lawyers for the government and television networks over government regulation of the airwaves during hours when children are likely to be watching.

Some justices said they were troubled by inconsistent standards that allowed certain words and displays in some contexts, but not in others.

One example frequently cited by the networks was the Federal Communications Commission’s decision not to punish ABC’s airing of “Saving Private Ryan,” with its strong language, while objecting to the same words when uttered by celebrities in live awards show programming.

Justice Elena Kagan said the FCC policy was, “Nobody can use dirty words or nudity except Steven Spielberg,” director of the World War II movie. Other justices seemed more open to maintaining the current rules because they allow parents to put their children in front of the television without having to worry they will be bombarded by vulgarity.

Chief Justice John Roberts, the only member of the court with young children, hammered away at that point, saying he wondered why broadcasters would oppose regulation of a few channels so that parents can know that children “are not going to hear the S-word, the F-word” or see nudity.

But at least one justice, Samuel Alito, talked about how rapidly technological change has effectively consigned vinyl records and 8-tracks to the scrap heap, suggesting that in a rapidly changing universe, time will take care of the dispute.

The First Amendment case pits the Obama administration against the nation’s television networks. The material at issue includes the isolated use of expletives as well as fines against broadcasters who showed a woman’s nude buttocks on a 2003 episode of ABC’s “NYPD Blue.”

The broadcasters want the court to overturn a 1978 decision that upheld the Federal Communications Commission’s authority to regulate both radio and television content, at least during the hours when children are likely to be watching or listening. That period includes the prime-time hours before 10 p.m.

At the very least, the networks say the FCC’s current policy is too hard to figure out, penalizing the use of particular curse words in some instances, but not in others.

The administration said that even with the explosion of entertainment options, broadcast programming remains dominant. It also needs to be kept as a dependable “safe haven” of milder programming, the administration said.

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.

Nearly nine out of 10 households subscribe to cable or satellite television and viewers can switch between broadcast and other channels by pushing a button on their remote controls. “People have really lost track of which stations are broadcast stations,” said Paul Smith, a partner with the Jenner and Block law firm who has argued First Amendment cases at the Supreme Court.

But supporters of regulation said the media companies that own television networks also have movie studios, cable channels and other outlets where they are free to run whatever they wish.

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