The U.S. Supreme Court is considering a constitutional case dealing with what is broadcast on television when children are likely to be watching.

In a filing at the high court, we’re defending a ban on television indecency. Our amicus brief defends the ability of government authorities to outlaw public indecency, whether in person or on broadcast TV.

It may be that TV stations would prefer to cross the lines of decency in a misguided effort to boost ratings and bolster their profits. But to do so in prime time means sacrificing the protection of children – and adults – from gratuitous assaults on their sensibilities. The First Amendment right to free speech does not include indecent exposure in public settings like this.

“Just as a state could prohibit someone from strutting around naked in public,” our friend-of-the-court brief contends, “a state may forbid companies from broadcasting into people’s homes programs depicting someone strutting around naked.” The ability of the Federal Communications Commission (FCC) to prohibit broadcast indecency on TV is at stake in the case of FCC v. Fox TV (No. 10-1293).

The FCC case involves a constitutional challenge by the Fox, ABC, CBS, and NBC television networks to the FCC’s enforcement of a rule forbidding obscene language – so-called “fleeting expletives” — during hours when children are normally part of the audience. A federal appeals court in New York City ruled in July of 2010 that the FCC’s policy on foul language was unconstitutionally vague and would risk chilling protected speech. The FCC then asked the Supreme Court to hear the case. The Court granted the petition at the end of June and the parties are now submitting written arguments to the Court.

Our amicus brief, posted here, is focused on calling the Court’s attention to the problem of indecent nudity in broadcast programs. “An indecent television broadcast is essentially an indecent public display,” the brief argues. Restricting the public exposure of a person’s private parts is a proper way of protecting children, an interest the Court has recognized as “compelling,” the brief notes. Moreover, our brief continues, this concern applies in full force to broadcast media like TV, given its pervasiveness and accessibility to children, “who need navigate no passcodes or lockboxes to turn on a TV set.” As Justice Kennedy wrote in a 1996 decision about cable TV, “The householder should not have to risk that offensive material come into the hands of his children before it can be stopped.”

The fact is that the Supreme Court will be focusing on obscene language, not nudity, in this case. The purpose of our brief is to remind the Court that there is another whole area of indecency – indecent exposure – that the Court needs to keep in mind. It would be a terrible thing if the Court, while thinking about an occasional expletive dropping from the lips of a celebrity, inadvertently rendered a decision that undermined the important existing protections of children against public indecency, whether on the streets or on TV.

While our brief supports neither party in this case, it’s request to the high court is clear: “This Court should decide this case in a way that reaffirms, rather than inadvertently undercuts, either directly or by logical implication, the constitutionality of the laws of all fifty states and the District of Columbia (set forth in the Appendix) forbidding indecent exposure.”

The Supreme Court will likely hear oral argument in the case in the winter and issue a decision sometime in the spring of 2012.

Get the latest information on all of the issues we’re engaging by visiting the Jay Sekulow page on our website.

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