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Fox lawyer says radio, TV should have different indecency rules

January 11, 2012 |  5:05 pm

Supreme Court Justice Samuel Alito questioned whether radio and TV should have separate content regulation rules

So much for one for all and all for one.

The broadcasting industry usually tries to stick to together when it comes to fights with the government. That seemed to change during the U.S. Supreme Court hearing Tuesday on the constitutionality of the government's rules regarding indecent programming when a lawyer for Fox suggested broadcast television should be free of content regulation -- but not over-the-air radio.

While being questioned by Supreme Court Justice Samuel A. Alito Jr., Fox's outside counsel, Carter Phillips, suggested radio didn't deserve the same 1st Amendment protections as broadcast television.

"Absolutely, they are fundamentally different media,” Phillips said after Alito asked whether radio should have to play by the current rules but not television. "The court has recognized that media has to be evaluated individually."

 Fox does not own radio stations.

A few minutes after throwing radio under the bus, Phillips contradicted himself when he suggested that it was wrong for cable television -- which does not have to comply with the FCC's rules regarding indecent content because it does not use the public airwaves -- to get one playbook and broadcasters another.

"First of all, the notion that one medium operates in a certain way in the exercise of its 1st Amendment rights can be used as an explanation for taking away or for restricting the 1st Amendment rights of another medium is flatly inconsistent with what this court has said across the board in the 1st Amendment context," Phillips said. "You don't balance off one speaker against another and give one favored status and give another unfavored status."

Unless, apparently, it's radio.


Broadcasters fight to gut FCC indecency rules

 Broadcasters to take on FCC in high court showdown

Court tosses out indecency case against ABC's 'NYPD Blue'

-- Joe Flint

Photo: Supreme Court Justice Samuel A. Alito Jr. Credit: Charles Dharapak / Associated Press.