"All the government is asking for are a few channels where you are not going to hear the F-word and the S-word and have nudity," Chief Justice John G. Roberts Jr. said.
While Fox TV's lawyer, Carter G. Phillips, argued growth in other unregulated media reduces the Federal Communication Commission's need to keep regulating broadcast comment, Roberts said that made a "safe haven" even more essential, SCOTUSBLOG.com reported.
The Supreme Court Tuesday heard oral arguments on the constitutionality of a ban on four-letter words and nudity.
The FCC policy has been declared unconstitutionally vague by the 2nd U.S. Circuit Court of Appeals in New York.
The case before the high court stems from FCC findings its policy had been violated by use of expletives in 2002 and 2003 on the Fox broadcast of the Billboard Music Awards and ABC's showing a woman's nude buttocks on "NYPD Blue" in 2003.
The FCC can now prohibit the broadcasting of "indecent programming" during daytime, and has adopted regulations that prohibit broadcast licensees from airing "any material which is obscene" at any time or "on any day between 6 a.m. and 10 p.m. any material which is indecent."
U.S. Solicitor General Donald B. Verrilli Jr. defended the current FCC policy.
But as he testified, Justice Anthony M. Kennedy asked him to describe "the public value in having different segments of the media governed by different standards" under the First Amendment.
Kennedy said with viewers flipping channels, it's unclear what's broadcast TV nowadays while the government continues to say "there was still a need for a standard for broadcast television" alone.
The broadcast industry wants the court to strike down or greatly reduce the government's authorities to police the airwaves.
Seth P. Waxman, a lawyer arguing for ABC-TV and its affiliated stations, attacked the anti-nudity policy, saying its enforcement has been so arbitrary no broadcaster knows what is or isn't allowed.
Justice Elena Kagan appeared to agree the standards on indecency seem arbitrary.
"It seems no one can use dirty words, except Steven Spielberg," she said, the Los Angeles Times reported.
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