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Decency on the Docket

The Supreme Court heard arguments this week for and against restrictions on indecency on the broadcast airwaves. In FCC v. Fox, Solicitor General Donald Verrilli defended government rules against broadcast indecency during hours children were likely to be watching. Lawyers for the Fox and ABC networks, however, contended that such rules and the FCC’s enforcement of those rules in the last decade are out of step with the First Amendment.

The Justices did not rule yet on the case; however, concern was heard in their exchange with the network lawyers.  Justice Antonin Scalia stated, “And if… these are public airwaves, the government is entitled to insist upon a certain modicum of decency.  I'm not sure it even has to relate to juveniles, to tell you the truth.”  Justice Elena Kagan stated, “Look, you've been given a privilege…. We've had this for decades and decades that… the broadcaster is treated differently…. it seems to be a good thing that there is some safe haven.”  And Chief Justice Roberts noted, “All we are asking for… is a few channels where… they are not going to hear the S word, the F word. They are not going to see nudity.”

After the Supreme Court hearing of this case, NRB President and CEO Frank Wright declared, “NRB has been a staunch defender of the First Amendment…. At the same time, we recognize that great responsibilities come with such a valuable freedom…. We don’t believe that the values of both free speech and fundamental decency are inconsistent.” Indeed, in a brief filed by NRB last autumn in favor of the FCC restrictions on indecency, NRB commented, “The broadcasting of indecent content during children’s viewing hours fits squarely within… well-established First Amendment exceptions, and the Commission’s policy gives ample, sufficiently clear notice to broadcasters of what is prohibited.”

By Aaron Mercer, Vice President of Government Relations