Still, the outcome was hard to forecast because several members of the court, including Justices Samuel A. Alito Jr. and Anthony M. Kennedy, said little or nothing during the oral argument.
Representing the Fox TV network, Washington lawyer Carter G. Phillips urged the court to think twice before allowing the FCC policy to go into effect. "At the end of the day, you are regulating the content of the speech," he said.
The FCC has not explained its abrupt shift in the policy, he said, and it has been inconsistent in applying it. He also said broadcasters would be wary of airing live sports programs if an overheard expletive could result in a huge fine.
Despite earlier comments that he would be explicit, Phillips did not use the disputed words in the court on Tuesday.
In contrast to cable companies, traditional over-the-air broadcasters remain subject to regulation because they use the public airways. In their legal briefs, the broadcasters urged the court to rethink this doctrine.
But during Tuesday's argument, only Justice Ruth Bader Ginsburg suggested the court delve into the 1st Amendment issues that underlay this dispute.
It is "the big elephant in the room," she said.
One bright spot for the broadcasters was Justice John Paul Stevens. He wrote a 1978 decision upholding the FCC's indecency restrictions, but he said Tuesday that he was not convinced that every use of the forbidden words was offensive. Cher, for example, said on the award show that she had outlasted her critics. "So, F . . . 'em," she said.
What if a "particular remark was really hilarious, very funny? Would that cause the FCC to think twice about imposing a fine?" he asked Garre.
The solicitor general was unswayed. When "celebrities use particularly graphic, vulgar, explicit, indecent language as part of the comedic routine," he said, there is "potentially greater harmful impact on children."
Later, when Garre said the S-word must be banned because it refers to excretion, Stevens probed further. "Do you think the use of the word 'dung' would be indecent?" he asked. Probably not, Garre replied, because it "wouldn't be patently offensive under community standards for broadcasting."
The court could rule narrowly by focusing only on whether the FCC's change in policy is arbitrary. Or it could delve into the 1st Amendment standard for the broadcasting industry.
Fox TV took the lead in challenging the FCC because the network had broadcast several of the award programs.
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david.savage@latimes.com
