Updated, Tuesday 4:16 p.m.
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 was hearing 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.'"
The protest provided a bizarre sideshow, while inside the justices wrestled with whether the FCC has the constitutional right to enforce rules prohibiting obscene language and nudity on broadcast television and radio.
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.
And that is the issue it is hearing now.
U.S. Solicitor General Donald B. Verrilli, Jr. argued that it was not “futile” to maintain the FCC’s indecency rules because a “safe haven is important, especially in the new environment.”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.
Seth Waxman, representing ABC, pointed to the “starkly inconsistent manner” in which the FCC enforced the indecency rules. Ross’s buttocks are off limits, while much more nudity in the film “Catch-22” is allowed, Waxman said, calling the inconsistency “constitutionally intolerable.”
Roberts said it seemed reasonable that the FCC could take context into account when differentiating between a lewd remark from Paris Hilton and those used in the film “Private Ryan.”
