Broadcasters are different from other types of media — such as print media, which has more freedom — because of their ability to “intrude on the privacy of the home without prior warning,” especially for the viewer who is “just tuning in or switching channels,” the ACLJ brief said. Further, broadcast media is “uniquely accessible to children.”

The Supreme Court will hear oral arguments Tuesday in its most significant broadcast indecency case since 1978, and conservative groups are warning the justices that if the television networks win, profanity and nudity will flood TV broadcasts.

At issue is whether the Federal Communications Commission (FCC) has the constitutional authority to set rules governing what is permissible on the airwaves and to fine stations that cross the line. One example is the infamous Janet Jackson Super Bowl incident in 2004 and the FCC’s ensuing fine of CBS and CBS stations. Lower courts overruled the fine, and CBS has yet to pay.

Among other examples of TV indecency that led to FCC fines yet to be paid because of lower court rulings, ABC’s “NYPD Blue” showed a nude female character in 2003 and Fox’s Billboard Music Awards in 2002 and 2003 failed to bleep profane words by Cher and Nicole Richie.

The Supreme Court case is an appeal from the U.S. Second Court of Appeals, which in 2010 struck down the FCC’s entire broadcast indecency policy. Fox, ABC, CBS and NBC want the Second Circuit’s decision upheld.

Focus on the Family and the Family Research Council co-sponsored a friend-of-the-court brief in support of the FCC.

“If the court opens the floodgates to so-called ‘adult material’ at all hours on broadcast TV and radio in the name of the First Amendment, then TV and radio will be open only to adults, not children, and, at that, adults who desire only more indecent material,” the brief stated. “Television viewers will be forced to listen to indecent material. Profanity and sex will dominate daytime radio. Nothing in the First Amendment requires this result.”

Conservative groups are concerned about the case because the high court’s four-member conservative bloc — often reliable in taking the conservative stance on such social issue cases — might not hold together. Specifically, Justice Clarence Thomas in 2009 questioned the “viability” of two Supreme Court cases cited by the FCC as constitutionally supporting the current indecency policy: a 1969 case, Red Lion Broadcasting Co. v. FCC, and a 1978 case, FCC v. Pacifica Foundation.

“Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity,” Thomas wrote in a 2009 concurring opinion.

In Red Lion, the Supreme Court upheld the so-called Fairness Doctrine; in FCC v. Pacifica, the high court ruled that the FCC had the authority to regulate indecent language on the airwaves. The latter case involved comedian George Carlin’s “seven dirty words” routine.

[Editor’s note: This article is incomplete. The source for this document was originally published on Baptist Press—however, the link (URL) to the original article is unavailable and has been removed.]