“The world that the networks are asking you to adopt here today, where the networks are free to use expletives,” said Gregory G. Garre, the solicitor general, may include “the extreme example of Big Bird dropping the F-bomb on ‘Sesame Street.’ ”
In a lively argument heavy on euphemism and concern for the state of the culture, the Supreme Court considered the role of the Federal Communications Commission in regulating “fleeting expletives” on broadcast television — essentially, whether the government can penalize a network for letting a dirty word slip onto the air.
The narrow question before the court was whether the commission had given a sound reason for changing its approach to the treatment of isolated, as opposed to repeated, swearing.
For many years, the commission had looked the other way in cases involving the broadcast of a single, generally live and impromptu four-letter word. But in orders in 2004 and 2006 concerning unscripted swearing by Bono, Cher and Nicole Richie on awards shows, the commission said fleeting expletives might be punished after all.
At Tuesday’s argument, Chief Justice John G. Roberts Jr. appeared to agree with the commission’s contention that all uses of certain four-letter words run afoul of a regulation prohibiting material that “depicts or describes sexual or excretory activities or organs.”
“Why do you think the F-word has shocking value or emphasis or force?” Chief Justice Roberts asked Carter G. Phillips, a lawyer for Fox Television Stations, which had broadcast some of the offending language.
The chief justice answered his own question: “Because it is associated with sexual or excretory activity. That’s what gives it its force.”
Justice Antonin Scalia added that this was the reason people “don’t use ‘gollywaddles’ instead of the F-word.”
It was not clear Tuesday whether the justices would limit themselves to assessing the reasonableness of the commission’s actions or reach the larger question of whether government regulation of indecent speech on the airwaves can be justified under the First Amendment in the Internet era.
A divided three-judge panel of the federal appeals court in New York ruled against the commission on the narrower ground last year, though the judges in the majority also suggested that the commission’s position was constitutionally suspect.
What was clear on Tuesday was that the justices had a variety of ideas about the government’s role in policing indecency.
Justice Stephen G. Breyer expressed concern for networks and local stations that cover live events, including sports and awards shows.
“You deal with a cross section of humanity,” Justice Breyer said. “And my experience is, some parts of that cross section swear.”
Justice Scalia agreed that swear words were commonplace at, say, baseball games.
“But you don’t have them presented as something that is normal in polite company, which is what happens when it comes out in television shows,” he said. “This is a coarsening of matters that is produced by the shows.”
Justice Ruth Bader Ginsburg said she saw “no rhyme or reason for some of the decisions that the commission has made.” It has said, for instance, that the swearing in one televised movie, “Saving Private Ryan,” was not indecent but that swearing by blues musicians in another, a documentary produced by Martin Scorsese, was.
Mr. Garre said context mattered. An exchange between Paris Hilton and Ms. Richie at the Billboard Music Awards, he said, amounted to pandering that “was shocking and gratuitous and explicit and graphic.” Ms. Richie had described the difficulty of extracting cow manure from a Prada purse.
Justice John Paul Stevens suggested a novel standard for judging indecency. Is it ever appropriate to consider, he asked, “whether the particular remark was really hilarious — very, very funny?”
Mr. Garre said funniness could play a part in the commission’s analysis of whether a remark was shocking, titillating or pandering. Justice Scalia jokingly summarized the new standard: “Bawdy jokes are O.K. if they are really good.”
Chief Justice Roberts and Justice Scalia both noted that the networks were free to broadcast any language they liked between 10 at night and 6 in the morning but generally avoided the words in question. “Because they find it offensive, I gather,” Justice Scalia said.
In 1978, in F.C.C. v. Pacifica Foundation, the case that considered George Carlin’s “seven dirty words” monologue, the Supreme Court allowed the commission to regulate as indecent at least repeated and deliberate swearing.
At the argument Tuesday, in F.C.C. v. Fox Television Stations, No. 07-582, the justices differed on the significance of the changed media landscape since the Pacifica decision. Mr. Garre said the advent of media not subject to indecency regulation was a reason to continue to regulate broadcasters. “Americans who want to get indecent programming can go to cable TV,” he said. “They can go to the Internet.”
The argument concluded with a discussion of manure. “Do you think the word ‘dung,’ D-U-N-G, would be indecent?” Justice Stevens asked. Mr. Garre said the word “probably wouldn’t be patently offensive.”
Justice Ginsburg pursued the inquiry, noting that even the dissenting judge on the appeals court had said another four-letter word for excrement could not be indecent. The judge, Pierre N. Leval, has reasoned that “there is surely no thought that children are harmed by hearing references to excrement,” because “excrement is a main preoccupation of their early years.”
Mr. Garre, the solicitor general, may have given up on “dung,” but he would go no further. “We think that the S-word is patently offensive,” he said.