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An Uncensored Look at What the Supreme Court Said Today About Indecency on TV

Carter G. Phillips represented the broadcast network respondents in the case. He began by noting that there was no effort to enforce decency from 1927 to 1975, which caused Justice John Roberts to cough out that no broadcast had rough language during this time.

Phillips responded, "Well, maybe, maybe not."

Frankly, my dear, he couldn't give a damn.

Kagan then decided to play devil's advocate:

"It seems to be a good thing that there is some safe haven, even if the old technological bases for that safe haven don't exist anymore. So why not just keep it as it is?"

Phillips answered by saying that broadcasters haven't given up their rights under the First Amendment, and that the FCC has become dysfunctional since 2004 as TV license renewals are being held up by "thousands and thousands of ginned-up computer-generated complaints."

Then, Justice Samuel Alito asked the most direct question possible: "Well, you want us to overrule a decision of this Court, Pacifica?"

"Yes, Justice," said Phillips with no stare decisis modesty whatsoever.

The two then debated what ramifications that would hold, from what's heard on radio to what's seen on television. Alito asked:

"If we rule in your favor on First Amendment grounds, what will people who watch Fox be seeing between 6:00 a.m. and 10:00 p.m.? Are they going to be seeing a lot of people parading around in the nude and a stream of expletives?"

Phillips held strong. He said that one medium can't be held to have more First Amendment rights than another and that the FCC isn't the only thing holding Fox executives back from parading nude women, screaming, "Fuck, Fuck, Fuck." After all, networks also have to respond to pressures from advertisers and audiences.

Kennedy wasn't convinced, believing that an "inevitable consequence" of overturning Pacifica will lead to cursing celebrities.

Phillips said that networks will continue an attempt to bleep it out, but he said that thanks to the proliferation of cable and other mediums, "this kind of language will expand."

Seth Waxman also got a chance to speak up on behalf of respondents, targeting the government powers to make "content-based regulation of speech." He said government often fails when it gets into the business of trying to understand context, as it purportedly did when it fined ABC for showing fleeting nudity on NYPD Blue.

"Right now, the commission has pending before it... complaints about the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks," he told the Supreme Court.

Waxman then pointed around the room. "There's a bare buttock there and there's a bare buttock here."

As the crowd snickered, Scalia admitted that he hadn't noticed it before now.

E-mail: eriqgardner@yahoo.com

Twitter: @eriqgardner