Occupy Wall Street moved to the Supreme Court on Tuesday, with a tiny but very vocal group of protestors reeling off Carlin's famous “Seven Words You Can Never Say on Television."
The Court on Tuesday morning heard oral arguments for and against the Federal Communications Commission's tougher enforcement protocol announced in 2004 in reaction to separate instances of foul language and nudity on both Fox and ABC television networks.
About half a dozen protestors were in front of the court, yelling slogans like: "You can kill people half a world away, but you can't say 'fuck.'"
Police were watching but not attempting to stop them.
Meanwhile, inside the building, the justices wrestled with whether the FCC has the constitutional right to enforce rules prohibiting obscene language and nudity on broadcast television and radio.
Justice Antonin Scalia and Chief Justice John Roberts argued that it was reasonable in this universe of cable and satellite television, where anything goes, that there should be some sort of safe haven. And since broadcasters are granted a license by the government, it's not too much to ask them to adhere to certain rules, they said.
On behalf of ABC, attorney Seth Waxman said the rules are applied too arbitrarily, and that's where issues of free speech come in.
Justice Samuel Alito said the FCC's rules apply to such a dwindling part of the media landscape, "why not let this die a natural death"?
The court will render its decision before its recess in June.
The case arrives nearly a decade after Cher first dropped an “F-bomb” at the Fox-televised Billboard Awards in 2002, followed by Nicole Richie reciting a selection of naughty words on air a year later.
Also in the picture are actress Charlotte Ross’ buttocks, which appeared in a 2003 “NYPD Blue” episode. The FCC fined dozens of ABC affiliates $27,500 each -- totaling more than $1 million -- for broadcasting the bare backside to the public.
In that decade, different aspects of both the Fox and ABC matters have traveled up and down the court-system food chain.
The Supreme Court court upheld the FCC's right to impose fines two years ago but did not address whether the fines violate free speech protections. The U.S. Court of Appeals for the Second Circuit reversed that decision, saying it was unconstitutionally vague. Both Fox Television and ABC maintain that the FCC rules are so vaguely written they constitute a violation of the First Amendment.
The Supreme Court agreed last summer to combine the issues in both the Fox and ABC cases in order to render a final judgment on the question of constitutionality as it applies to free speech.
That is the issue it is hearing now.
On Tuesday both sides referred repeatedly to the 1974 FCC vs. Pacifica Supreme Court case, which established the FCC’s indecency rules. That case stemmed from a radio station broadcast of Carlin’s “Seven Words” bit.
Fox and ABC said that the Pacifica ruling had no bearing on the current argument, while the FCC argued that it was a central tenet of the FCC’s authority when it came to indecency.
Historically, the FCC has given a wide berth to “fleeting expletives” — inappropriate language said in passing and not deliberately repeated. But after the Cher and Richie incidents, and another four-letter remark courtesy of Bono at the Golden Globes in 2003, the commission in 2004 announced its intention to crack down on lewd expression — even “single uses of vulgar words.”
Fox challenged what it deemed to be FCC’s zealous new approach, arguing among other things that the commission did not articulate why it altered its enforcement protocol, and also that the prohibitive nature of the rules was outdated and counter to the First Amendment.
Justice Sonia Sotomayor recused Tuesday because she previously had sat on the Second Circuit bench.
That said, the issue does not lend itself to ideological predetermination, as conservative justices like Scalia and Clarence Thomas have previously agreed government regulation is necessary in this instance, while Reagan appointee Anthony Kennedy has expressed his adamant objection to any trampling of First Amendment rights. Related Articles: Supreme Court to Decide if FCC Can Fine Networks for Language, Nudity Fox 'Pleased' by Indecency Ruling: 'Must Allow for Isolated Instances'