A breakdown of society?

Excerpt from "Many options on TV rules," SCOTUSblog, by Lyle Denniston. January 20, 2012--With one Justice testing the ultimate constitutionality of government controls on broadcast TV, another trolling for an exceedingly narrow approach, two others suggesting that technology may be overtaking the constitutional dispute, one signing himself up for rigorous morality policing and one whose vote may really be crucial staying entirely silent, the Supreme Court on Tuesday wandered widely in its new exploration of the state of profanity and nudity on television and radio. The lively argument in the latest round of that controversy even had a lawyer pointing out portrayals of nudity in the courtroom decorations above the Justices’ heads.

At the end of the hour of argument in Federal Communications Commission v. Fox Television Stations, et al. (docket 10-1293), nothing seemed predictable and, thus, Justice Clarence Thomas’s customary silence may have been the most eloquent expression. The last time the Court heard this case, in an earlier version, Justice Thomas had written a separate opinion essentially dismissing as out of date the constitutional norm of giving broadcasting fewer First Amendment rights than other media enjoy. With only eight Justices taking part this time (Justice Sonia Sotomayor is recused), it may not be possible for a majority to come together without Thomas on its side and, this time, the ultimate constitutional question he raised before is directly at issue.

Quite early in Tuesday’s argument, it was Justice Anthony M. Kennedy who brought up that question. With U.S. Solicitor General Donald B. Verrilli, Jr., at the lectern defending the FCC’s current policy against fleeting use of four-letter words and scripted nudity on TV, Justice Kennedy asked him to spell out “the public value in having different segments of the media governed by different standards” under the First Amendment. The Justice said that, surfing channels, it is not clear what is broadcast TV and what is not, and yet the government was saying “there was still a need for a standard for broadcast television” alone. To finish reading this story please click here.

CMDA Senior Vice President Gene Rudd, MD: "Important social principles are at stake in this case. Fox Broadcasting’s dispute with the Federal Communication Commission (FCC) stems from a fine leveled against Fox for allowing profanity to air during an awards show. (Fox could have used delay technology to prevent this.) Fox claimed the FCC was being inconsistent in its enforcement of profanity and nudity rules.

"On the surface this may seem like an odd case to attract the attention of CMDA. However, the case became more than a question of consistent enforcement of decency rules. During hearings in lower courts, the constitutional question surfaced. Are First Amendment rights breeched when government limits profane speech or explicit visuals? Knowing the harm that such exposure has on the mental health development of minors (not to mention the negative influence it can also have on adults), CMDA voiced its concerns. Along with others, we supported the government’s right to establish and enforce decency rules. Our brief filed with the Supreme Court outlined the deleterious psychological impact exposure to certain content can have on minors.

"While reliable conclusions cannot be drawn from the comments and questions from the Justices, it seemed clear that our concerns were shared by some of them. The ruling is weeks away. The decision might be limited to broadcast TV, but a decision to affirm decency rules would be a positive step in a culture plagued by social decay."

Supreme Court Brief: FCC vs. Fox and ABC
Freedom2Care: Protect our children: Censorship is not a bad word