Can't John Roberts Afford Cable?

Today the U.S. Supreme Court heard oral arguments in a case involving the Federal Communications Commission's policy regarding shit and fucking on broadcast TV. Last year the U.S. Court of Appeals for the 2nd Circuit said the FCC violated the Administration Procedure Act when, in response to comments by Bono, Cher, and Nicole Ritchie on live award show broadcasts, it abruptly decided to start fining broadcasters for the sort of fleeting profanity it had long tolerated. The FCC is asking the Supreme Court to reverse the appeals court's decision. According to the Los Angeles Times, Chief Justice John Roberts and Justice Antonin Scalia both indicated during questioning that they were inclined to side with the FCC. "Broadcast TV is the one place where Americans can turn on the TV at 8 o'clock and not expect to be bombarded by indecent language," Robert claimed.

It's weird that the father of two young children apparently has never encountered Noggin, Nickelodeon, the Disney Channel, TV Land, or any of the other family-friendly cable channels. The justification for continuing to censor over-the-air channels while leaving their nonbroadcast competitors free to provide what they think their viewers want has never been thinner, given that the two kinds of channels are indistinguishable to the typical TV watcher, who gets all programming by cable, satellite, or phone line. Both kinds of channels are equally "pervasive," equally accessible, and equally blockable by disapproving parents. Furthermore, although the FCC clings to its antiquated notions of family hours and safe harbors, the time when shows are transmitted is increasingly irrelevant in the age of DVRs. According to the Times, Roberts "said that 'all sorts of other media are available' for for those who are not bothered by more open use of profanity, sex or violence." Likewise, all sorts of options are available to those who are. 

If most of the justices agree that the special treatment of over-the-air channels no longer makes sense, it seems likely that they will remedy the disparity by extending the First Amendment's full protection to broadcasters, as opposed to authorizing censorship of cable (though not necessarily in this case, which can be decided on statutory grounds). Broadcasting & Cable notes that "all five of the Justices that overturned a cable-related FCC content regulation [Anthony Kennedy, John Paul Stevens, David Souter, Clarence Thomas, and Ruth Bader Ginsburg] are still on the court." In that case, the Court said "the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests."  

I discussed the fleeting-profanity case earlier this year, when the Supreme Court agreed to hear it.

Addendum: A transcript of the oral arguments is available here (PDF). Contrary to Damon Root's hope, the words at issue make nary an appearance.