The Supreme Court is considering whether government regulators may still police the airwaves for curse words and other coarse content at a time when so many Americans have unregulated cable television and the Internet is awash in easily accessible adult material.
The justices are hearing arguments Tuesday in a First Amendment case that 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 that 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 primetime 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 on awards programming but not in the airing of the movie "Saving Private Ryan," for example.
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.
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 a supporter 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.
Even on television, the rules only apply between 6 a.m. and 10 p.m., noted Tim Winter, president of the pro-regulation Parents Television Council.
"Radio and television broadcasters already have the ability to be as indecent as they want after 10 p.m.," Winter said.
The FCC policy under attack flowed from the 1978 Pacifica decision, which upheld the FCC's reprimand of a New York radio station for airing a George Carlin monologue containing a 12-minute string of expletives in the middle of the afternoon.
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 longstanding policy after it concluded that a one-free-expletive rule did not make sense in the context 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.
The case is FCC v. Fox Television Stations, 10-1293.