A divided Supreme Court spent an hour on Tuesday talking about dirty words on television without once using any.
There was no apparent consensus on the court about what to do in the dispute between the broadcast networks and the Federal Communications Commission over celebrities' one-time uses of profanity on live television during hours when children are likely to be watching.
The court's first major broadcast indecency case in 30 years deals with whether the government can ban these "fleeting expletives." The court could avoid deciding whether the FCC policy violates the Constitution and instead determine that the FCC did not adequately explain why it changed its mind in 2004 and instituted the ban.
The words in question begin with the letters "F" and "S." The Associated Press typically does not use them.
"The reason these words shock is because of their association with a literal meaning," Chief Justice John Roberts said, suggesting his support for the policy. Roberts is the only justice with young children at home.
Justice Antonin Scalia, who has more than 20 grandchildren, also said he sees nothing wrong with clamping down on the use of bad words on television and blamed the networks for coarsening the language.
On the other side, Justice John Paul Stevens indicated that he believes Americans are more tolerant of vulgarities than they were when the court ruled 30 years ago that the FCC could keep profanities off the airwaves between 6 a.m. and 10 p.m.
Over the airwaves
It was hard to tell where the court is heading because three justices — Samuel Alito, Anthony Kennedy and Clarence Thomas — said little or nothing.
For many years, the FCC did not ordinarily enforce prohibitions against indecency unless there were repeated occurrences. But in 2004, the commission changed the rules after Bono, Cher and Nicole Richie used familiar but profane words during awards programs in 2002 and 2003.
A federal appeals court in New York threw out the ban, saying the FCC didn't provide enough explanation, and the government appealed to the Supreme Court. The appeals court also said, but did not rule, that the new policy probably is unconstitutional.
The FCC has authority to regulate speech on broadcast radio and television stations, but not the Internet, cable and satellite TV.
C-SPAN asked the court to release a recording of the arguments for airing shortly after their conclusion. The court grants such requests from time to time, but turned down C-SPAN with no explanation.
The case is FCC v. Fox Television Stations, 07-582. Fox Television Stations is owned by Rupert Murdoch's News Corp.