Much has changed in the media landscape since the U.S. Supreme Court ruled in 1978 that the Federal Communications Commission could put a radio station on official notice for airing George Carlin's monologue about the seven words no one can say on television.
The advent of cable and satellite television and the Internet has exposed children to the kinds of indecent content the FCC has sought to protect them from while watching broadcast television or listening to the radio.
Fox, NBC and other networks say the existing media world undercuts the Supreme Court's rationale for letting the FCC's regulate broadcasting, which had much less competition for the nation's eyes and ears.
Today, broadcasting is neither uniquely pervasive nor uniquely accessible to children like in the 1970s, networks wrote in an expletive-laden court filing, yet broadcasters are still denied the same basic First Amendment freedoms as other media.
The Obama administration countered that the FCC's policy is needed now more than ever to provide children with a place safe from the vulgarity cable and the Internet offers.
Tuesday morning, both sides will make their argument before the U.S. Supreme Court in a case that could change the FCC's authority to safeguard children from indecency on broadcast programming, perhaps altering what Americans will see and hear on television.
Tightening of Indecency Rules
When the Supreme Court's issued its ruling over the Filthy Words monologue, the FCC was more concerned with a continuous use of curse words, rather than a one-time slip of the tongue.
But in the decades since broadcasts' heyday, the FCC has tightened its indecency policy after U2 singer Bono told a televised award show audience in 2003 just how brilliant it is to win a Golden Globe. That led the FCC under the Bush administration to start going after the so-called fleeting expletives.
The Obama administration defended the Bush-era change in policy as a Constitutional way to protect children from hearing the same kind of content the Supreme Court three decades ago authorized the commission to regulate.
Broadcast programming, the Obama administration noted, is still a dominant presence in the living rooms of Americans and is much easier to access than cable television or the Internet.
Generations of parents have relied on indecency regulation to safeguard broadcast television as a relatively safe medium for their children, Obama's solicitor general, Donald Verrilli, wrote in a squeaky clean court brief. The rise of alternative communications media has strengthened, not undermined, that reliance interest.
Four-Letter Words and Televised Backsides
The Supreme Court in 2009 upheld the FCC's fleeting expletive policy, but never addressed networks' the constitutional arguments that it is too vague. After the high court kicked the case down to the New York-based Second Circuit Court of Appeals, a three-judge panel sided with the networks.
The Second Circuit said that the FCC's guidance policy hardly gives broadcasters notice of how the commission will rule on indecency matters. For instance, the policy deemed indecent the utterance of an agriculturally-tinged term casting doubt, but a gentile version of a schmuck or a putz got an OK.
The case now before the Supreme Court deals with two incidents from Fox's 2002 and 2003 Billboard Music Awards shows, in which Cher told off her critics with a choice four-letter word and reality star Nicole Richie complained about cow dung in her Prada purse. Another incident before the high court involves a 2003 episode of ABC's NYPD Blue that showed actress Charlotte Ross' backside as she prepared for a shower that gets interrupted by a young boy. The scene aimed to portray a slice of domestic life.
The networks challenging the FCC's policy say the commission became more aggressive in the three decades since the Filthy Words decision, erecting a purely subjective regime that permits commissioners to pursue their personal predilections.
The indecency regime has had a chilling effect on broadcasters that fear the stiff fines that come with FCC actions, Fox and others said. Networks and their affiliates could run up fines reaching millions of dollars.
Broadcasters, the networks argued, have no fair notice of what these commissioners may deem indecent.