"Broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and eight-track tapes," he told government and broadcast lawyers during oral arguments on whether broadcasters should still be fined for showing vulgar programming that is constitutionally protected when presented on cable TV or the Internet.
Lawyers for American Broadcasting Cos. Inc. and Fox Television Stations Inc. said the First Amendment should fully protect them too, arguing so-called indecency rules are vague, arbitrary, "hopelessly out of date and fundamentally unfair."
The regulatory Federal Communications Commission has, for instance, said swearing in "Saving Private Ryan," a Steven Spielberg movie that includes scenes of soldiers in World War II, shouting and cursing as they fight on the beaches of Normandy, France, was OK. But it said swearing by blues masters in a music documentary produced by Martin Scorsese was not OK, the lawyers argued.
Nudity in "Schindler's List," another Spielberg movie, was allowed, they said, but a few seconds of partial nudity in the ABC-TV police drama "NYPD Blue" was not.
Justice Elena Kagan commented wryly on federal regulation in this area.
"The way that this policy seems to work -- it's like nobody can use dirty words or nudity except for Steven Spielberg," she said.
Chief Justice John Roberts Jr., the only justice with small children, defended the policy.
"People understand that context counts" -- that a soldier's cursing in a battle scene might be permitted but a frivolous expletive during an awards broadcast might not, he said.
Under FCC rules against so-called fleeting expletives, Fox TV faced potential fines when celebrities, including U2 singer Bono, Cher and Nicole Richie, used the F-word on awards programs broadcast live -- language Justice Stephen Breyer said seemed "to be naturally part of their vocabulary."
"All we are asking for -- what the government is asking for -- is a few channels where you can say they are not going to hear the S-word, the F-word [and children] are not going to see nudity," Roberts said. "There are 800 channels where they can go for that."
The case is a continuation of a 2009 Supreme Court case in which the court upheld FCC fines associated with the fleeting expletives ban. The current case addresses the constitutionality of the ban itself.
At one point in the arguments, ABC attorney Seth Waxman said TV coverage of the Olympic Games' opening ceremonies faced questions because it "included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks."
"There's a bare buttock there, and there's a bare buttock here," Waxman said, pointing to sculpted scenes along the ceiling.
"Frankly, I had never focused on it before." Waxman said.
Justice Antonin Scalia, who has nine grown children, glanced up and said, "Me neither!"