Does indecency rest in the eye --- or ear --- of the beholder?
Or, America will get to see a continuing game of cat and mouse between the Federal Communications Commission and the broadcast networks to see where the line should be drawn and how thickly.
The most clear answer is if the Supreme Court rules that the FCC does not have the authority to enforce a safe harbor free of indecent material --- 6 a.m. to 10 p.m., when children are most likely to be watching TV.
The high court heard oral arguments Jan. 10 on the FCC's challenge to federal appellate court decisions that declared no such authority existed.
The programs at issue? A few awards shows that were aired live while celebrities uttered profanities, an episode of a long-since-canceled cop show that bared an actress' behind, and the infamous "wardrobe malfunction" at the 2004 Super Bowl.
Because Justice Sonia Sotomayor was serving on one of the appellate courts whose decision was argued Jan. 10, she recused herself. For the FCC, it needs five votes to overturn the lower courts' decisions. But the broadcasters can win with a stalemated 4-4 court since a tie is not good enough to change the law.
If the government loses, "then one of what I think is the key functions of the FCC is gone," said Frank Morock, communications director for the Diocese of Raleigh and head of the Catholic Academy of Communication Arts Professionals. Without the FCC, Morock asked, "then who will serve as the gatekeeper for these issues?"
"I think we'll win," said Patrick Trueman, the head of Morality in Media, now based in Washington after decades of being headquartered in New York.
"I was there (at the court), and I thought that it certainly appeared to me that, from the oral arguments, the justices were not going to give the broadcast networks this newfound right to broadcast indecency into our homes," Trueman said, citing the 1976 Supreme Court's "seven dirty words" ruling, which cemented an FCC policy against indecency, although that case dealt with words spoken on the radio.
"I did get a kick out of the broadcasters' attorney's suggesting that networks did not know whether nudity on broadcast television would be (regarded as) indecency. It made me want to say, 'Then what the heck do you think indecency is?'" Trueman told Catholic News Service in a Jan. 18 telephone interview. "It's not that they don't understand what indecency is, it's that they don't care."
Michael Copps might have had a chance to act on indecency complaints had this case not taken so long to slog its way through the judicial system, but he retired from the FCC Jan. 1, a week before the hearing.
"That's going to be very, very interesting," Copps said of the court's ruling, expected before the justices take their customary summer-long recess. "I hesitate to predict the outcome of decision based on the questions that were asked. But there seemed to be some palpable measure (by the justices of) the FCC's responsibilities in this regard. I hope that is reflected in the decision that is finally made."
"There's the question of how parents will protect themselves and their kids from amorality as they perceive it," said Frank Frost, who owns his own TV and film production company in the Washington suburbs and organizes the jury each spring for the film awards bestowed by Signis, the international Catholic film and television association.
"My belief is you don't protect kids, you talk to kids. When they do get exposed, you talk with them. You're close enough when they watch as well. Guidance has to come from the parents. I think this is consistent with what I learned" reviewing films for the U.S. bishops' old Office for Film & Broadcasting decades ago.
"You want to warn parents and people, but you can't protect people totally," Frost said. "You have to have well-formed consciences, and you have to be in communication to talk about these things."
"Right now, the early comedies ... are walking an extremely fine line," Morock said, referring to shows airing in prime time. He pointed to a recent episode of the ABC sitcom "Modern Family" in which a young character says "fudge" but the word is bleeped.
"How many families allow their 2-year-old to say the F-word?" Morock said. "But people are going to watch and they're going to laugh at that scene."
Morality in Media's Trueman said Americans deserve to be protected against indecent use of the public airwaves. He took note of one argument during the hearing that, with over-the-air and cable stations abutting each other on cable and satellite channel lineups, the difference is growing indistinguishable.
"There is an expectation that the networks behave in our living rooms," he said. "They don't have a greater right than we have in our own homes."
"I've lost interest in that debate," Frost admitted, "mostly because it seems to be a matter of politics and not of any real concern for parents and kids."