WASHINGTON Liberal Supreme Court justices on Tuesday questioned if the government inconsistently restricted profanity and nudity on broadcast television, opposing some shows but allowing it on famous movies like "Saving Private Ryan" and "Schindler's List."
Conservative justices, meanwhile, voiced support for the Federal Communications Commission's policy and said it may have symbolic value in preserving decency at a time when nudity and dirty words have proliferated on unregulated cable channels.
The court seemed closely divided along ideological lines, but gave no clear indication during arguments on how it would rule in the free-speech challenge of the government's policy by major television networks.
The case involved a 2002 awards show when singer Cher blurted out an expletive, a 2003 show when actress Nicole Ritchie used two expletives and a seven-second shot of a woman's nude buttocks on a 2003 "NYPD Blue" episode on Walt Disney Co's ABC that led to $1.21 million in fines.
The court heard the dispute with only eight of its nine members. Liberal Justice Sonia Sotomayor did not take part because she considered the dispute previously as a U.S. appeals court judge in New York.
All three lawyers who argued and the justices never used the expletives at the heart of the dispute, but instead referred to the "f-word" or the "s-word."
Solicitor General Donald Verrilli, the Obama administration's chief advocate before the Supreme Court, defended the policy as an appropriate restriction when children were likely to be in the viewing audience.
Liberal Justice Ruth Bader Ginsburg questioned him about why the FCC allowed profanity in the World War Two movie "Saving Private Ryan" or nudity in the acclaimed 1994 movie "Schindler's List" but not on "NYPD Blue."
"It's the appearance of arbitrariness," she said.
Liberal Justice Elena Kagan also asked about too much government discretion in enforcing the policy, with uncertainty over what would be allowed and what would be objectionable.
ONLY SPIELBERG CAN USE NUDITY, JUSTICE SAYS
"Nobody can use dirty words or nudity but Steven Spielberg," Kagan said, adding that it raised serious free-speech issues under the Constitution's First Amendment. Speilberg directed both "Saving Private Ryan" and "Schindler's List."
Verrilli said the policy was enforced only in a few rare instances where a clear line had been crossed.
Striking down the policy would allow so-called shock-jocks to use profanity freely on the radio or make it acceptable for pop star Janet Jackson to briefly expose her bare breast during a broadcast, as she did in 2004 during the halftime show for the Super Bowl football game, he said.
Justice Anthony Kennedy, a moderate conservative, appeared swayed by Verrilli's argument. He asked if the regulation could be seen as a symbol against vulgarity in society when so many options are available on unregulated cable television.
Conservative Justice Antonin Scalia quickly agreed. "If there are public airwaves, the government is entitled to insisting on a certain modicum of decency," he said.
Carter Phillips, the attorney for the Fox television network, which broadcast the two awards shows, argued that without the policy broadcasters would use self-restraint, just like newspapers do in not printing the expletives.
Phillips said the media landscape had changed dramatically over the past 30 years since the court upheld the FCC's powers in a case about comedian George Carlin's "Filthy Words" monologue.
But Chief Justice John Roberts, a conservative, appeared skeptical, saying he thought the proliferation of other media cut against Phillips and that only a few channels were left without profanities or nudity.
Seth Waxman, arguing for ABC, said the policy was so vague that the FCC had received complaints about the opening episode of the last Olympics for showing statues with bare breasts and buttocks.
He said similar statues were on display in the Supreme Court. "But frankly, I had never focused on it before," Waxman said, and Scalia quickly interjected, "Me neither," prompting laughter throughout the courtroom.
The Supreme Court case is FCC v. Fox Television Stations and FCC v. ABC Inc, No. 10-1293.
(Reporting By James Vicini; Editing by Paul Simao)