The legal bottom line was not easy to discern, though there seemed to be little sentiment for a sweeping overhaul of the current system, which subjects broadcasters to fines for showing vulgar programming that is constitutionally protected when presented on cable television or the Internet.
Justice Samuel A. Alito Jr. suggested that the court should not rush to resolve a question concerning a technology on its last legs.
“Broadcast TV is living on borrowed time,” he said. “It is not going to be long before it goes the way of vinyl records and eight-track tapes.”
In the meantime, though, a majority of the justices seemed content to leave in place the broad outlines of a regulatory structure built on rationales that have been undermined.
In 1978, in Federal Communications Commission v. Pacifica Foundation, the court said the government could restrict George Carlin’s famous “seven dirty words” monologue, which had been broadcast on the radio in the afternoon. The court relied on what it called the uniquely pervasive nature of broadcast media and its unique accessibility to children.
Neither point still holds, lawyers for two networks told the justices. The case, Federal Communications Commission v. Fox Television Stations, No. 10-1293, arose from the broadcast of fleeting expletives by celebrities on awards shows on Fox and partial nudity on the police drama “NYPD Blue” on ABC.
Justice Antonin Scalia, who in other settings has been hostile to government regulation of speech, said there was value in holding the line here.
“This has a symbolic value,” he said, “just as we require a certain modicum of dress for the people that attend this court.”
“These are public airwaves,” Justice Scalia went on, adding: “I’m not sure it even has to relate to juveniles, to tell you the truth.”
Chief Justice John G. Roberts Jr., the only justice with small children, seemed to stumble in describing what was at stake.
“All we are asking for —— , ” he said, and then he corrected himself. “What the government is asking for is a few channels where you can say they are not going to hear the S-word, the F-word. They are not going to see nudity.”
“So the proliferation of other media, it seems to me, cuts against you,” the chief justice told Carter G. Phillips, a lawyer for Fox.
A majority of the court may thus be open to continued government regulation of indecent programming on broadcast television. But there was significant dissatisfaction with how the Federal Communications Commission has been using its authority.
“One cannot tell what’s indecent and what isn’t,” Justice Ruth Bader Ginsburg said, referring to the agency as “the censor.”
The commission has, for instance, said that swearing in “Saving Private Ryan,” the Steven Spielberg war movie, was not indecent, while swearing by blues masters in a music documentary produced by Martin Scorsese was indecent. Nudity in “Schindler’s List,” another Spielberg movie, was allowed, but a few seconds of partial nudity in “NYPD Blue” was not.
Justice Elena Kagan offered a summary of the state of federal regulation in this area. “The way that this policy seems to work,” she said, “it’s like nobody can use dirty words or nudity except for Steven Spielberg.”
Donald B. Verrilli Jr., the United States solicitor general, said “we would concede that there is not perfect clarity” in the commission’s approach. But he said the agency heeded context and used its powers sparingly.
Mr. Verrilli also said that broadcasters undertook “enforceable public obligations” in exchange for their licenses, among them an agreement to comply with restrictions on indecent programming.
Justice Kagan responded that “this contract notion of yours can only go so far” because the government could not impose unlimited conditions in exchange for a benefit.
Justice Ginsburg wondered whether restricting swearing made sense in a society in which “expletives are in common parlance.”
Mr. Verrilli said yes. “It’s one thing when your 13-year-old brother is saying it to you, or some bully in the schoolyard’s saying it to you,” he said. “It’s another when it’s presented to you in this medium as an appropriate means of communication.”
Justice Anthony Kennedy suggested and then rejected the idea that parents could use technology like a V-chip instead of relying on the government for protection. “There’s the chip that’s available,” he said. “And of course, you ask your 15-year-old, or your 10-year-old, how to turn off the chip. They’re the only ones that know how to do it.”
Justice Alito asked Mr. Phillips what viewers would see on Fox in the absence of regulation. “Are they going to be seeing a lot of people parading around in the nude and a stream of expletives?”
Mr. Phillips said broadcasters were free to show what they like after 10 p.m. and nonetheless voluntarily followed fairly restrictive internal standards.
A lawyer for ABC, Seth P. Waxman, said the vagueness of the commission’s standards continued to cause problems, mentioning a pending complaint about coverage of the opening ceremonies of the Olympics, “which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks.”
“There’s a bare buttock there, and there’s a bare buttock here,” Mr. Waxman said, gesturing around the courtroom and perhaps supplying the justices with another argument against television coverage of the Supreme Court.