The Supreme Court & Broadcast Decency

This week, the Supreme Court heard arguments in consolidated cases concerning the FCC’s regulation of decency. Chief Justice Roberts (as the only justice with young children) remarked that “All we are asking for, what the government is asking for, is a few channels where … they are not going to hear the S-word, the F-word, they are not going to see nudity.”

Justice Kagen expressed concern that the enforcement is inconsistent, pointing out the FCC opted not to fine ABC-TV for airing the expletive-laden movie “Saving Private Ryan” uncut. “It’s like nobody can use dirty words or nudity except for Steven Spielberg,” she commented.

Justice Stephen Breyer suggested the Court could look at the case narrowly and not strike down all of the FCC’s rules. “Does this case in front of us really call for the earthshaking decision that you all have argued for,” he asked ABC-TV attorney Seth Waxman.
While it’s always a roll of the dice to try to predict what the Supreme Court will do in a case- and we won’t see a decision in this one until likely the end of the term this summer, I believe Justice Breyer’s comment probably points to how the decision will come down. This court won’t be willing to throw out the decency rules wholesale, no matter that broadcasters have correctly argued that there are so many alternatives that decency policing is unnecessary. I predict that it will be a narrow holding, possibly setting up different guidelines for radio and television. We’ll know if I’m correct in July!

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