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By Tom P. Taylor
The government's indecency rules governing broadcast media came under fire at the U.S. Supreme Court Jan. 10, as the parties and the justices explored their First Amendment implications and the need for greater clarity from the Federal Communications Commission (FCC v. Fox Television Stations Inc., U.S., No. 10-1293, argued 1/10/12).
Thanks to Fox Television's live broadcast of “fleeting expletives”used by entertainers Cher and Nicole Richie—language that “seems to be naturally part of their vocabulary,” Justice Stephen G. Breyer pointed out—and seven seconds of nudity showcasing a woman's buttocks on an episode of ABC's “NYPD Blue” titled “Nude Awakening,” the court got to revisit a debate that began with the broadcast of George Carlin's infamous “Filthy Words” monologue.
It did so without a single profane word being uttered. Nudity, however, was another story.
Arguing that the FCC's indecency standard was far too “vague and capacious,” Seth P. Waxman, WilmerHale, Washington, D.C., pointed out the carvings above the justice's heads, noting that they depicted bare buttocks and might be actionable if broadcast to the public.
Seeing the interest his observation provoked in several of the justices, he then pointed to an area of the frieze to his right and said, “Right over here, Justice Scalia.”
“Well, there's a bare buttock there, and there's a bare buttock here. And there may be more that I haven't seen, but frankly, I had never focused on it before,” Waxman said.
“Me, neither,” the somewhat befuddled justice replied, leading to the most startling moment of the entire argument—Justice Antonin Scalia appeared to blush.
Despite Waxman's close-to-home example, Scalia went on the record with his skepticism that there was no longer any need for a broadcast “safe haven,” where viewers can count on programming that steers clear of vulgarity and low-brow content.
“Sign me up as supporting [the] notion that this has symbolic value,” he said of the indecency standard. Just as this court requires attendees to dress a certain way, “the government is entitled to rely on a certain modicum of decency,” Scalia said
But other justices, particularly Justice Ruth Bader Ginsburg, questioned the FCC's ability to articulate clearly what it considers “indecent.”
There is an “appearance of arbitrariness in how the FCC is defining indecency,” she said.
“We would concede that there is not perfect clarity,” Donald B. Verrilli Jr. said, arguing for the government. But the alternative, a set list of words or images considered barred at all costs, would allow for zero flexibility and ultimately prohibit valuable speech without considering the context, he explained.
Following separate broadcasts of the 2002 and 2003 Billboard Music Awards on Fox, the FCC received complaints from viewers about two exchanges involving celebrities Cher and Nicole Richie.
Specifically, responding to perceived criticism about her longevity in the music career, Cher retorted “f*** ‘em.”
Nicole Richie, on the other hand, weighed in with some unorthodox fashion advice for audience members and viewers alike: “Have you ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple.”
“Nude Awakening” aired in 2003. It depicted an awkward encounter between a boy and his father's girlfriend, when the boy walks in on the woman preparing to take a shower.
Among other things, the scene included an unobstructed view of the actress's buttocks and the side of one of her breasts.
Applying guidance first issued in 2001, the FCC concluded [39 CR 1065] that both expletives and the nude scene were indecent in violation of 18 U.S.C. §1464. The 2001 guidance explained that offending material must “describe or depict sexual or excretory organs or activities,” and “be patently offensive as measured by contemporary community standards for the broadcast medium.”
Offensiveness, the agency said, is measured by way of three “principal factors”:
(1) The explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; [and] (3) whether the material appears to pander or is used to titillate, [and] whether the material appears to have been presented for its shock value.
On appeal [41 CR 791], the U.S. Court of Appeals for the Second Circuit overturned the findings, concluding that the FCC had arbitrarily changed its enforcement policy, which had previously focused exclusively on the words used in Carlin's “Filthy Words” monologue.
The Supreme Court overturned that decision in FCC v. Fox Television Stations Inc., 47 CR 933 (U.S. 2009), and on remand the Second Circuit again struck down the indecency policy, this time as unconstitutionally vague [50 CR 1365].
But Verrilli said that the Second Circuit overstepped when it struck down the FCC's policy as vague because it never asked the most important question: Did Fox and ABC know that the broadcasts would be considered indecent?
Because Fox was not fined for the expletives uttered by Cher and Richie, “there is no problem of arbitrary punishment,” Verrilli pointed out.
But as for ABC, who paid the fines levied by the agency, “it's impossible to believe that they didn't think that the naked display of buttocks would bring them within” the rule, Verrilli said.
Justice Elena Kagan disagreed with that assertion. “There is some amount of uncertainty,” she said, “and ABC finds itself in that area of uncertainty.”
Waxman added some concrete examples to that observation, noting that the FCC had allowed nudity to appear on broadcast television in programs ranging from “Monty Python's Flying Circus,” to “Catch-22,” which contained “10 seconds of full frontal female nudity,” and even in the very first episode of “NYPD Blue” that “included a nude scene of love making.”
The application of the policy to the “Nude Awakening”episode was a “shot out of the blue,” he said.
However, Chief Justice John G. Roberts Jr. seemed skeptical, dismissing Waxman's handful of examples with, “That's what you've got over 85 years?”
Kagan again came to the rescue of the networks' vagueness argument during Verrilli's rebuttal.
Noting that airings of both “Saving Private Ryan” and “Schindler's List” had escaped indecency findings despite containing strong language and nudity, Kagan said, “The way this policy seems to work, it's like nobody can use dirty words or nudity except for Steven Spielberg.”
Aside from vagueness, the major question before the court was whether it should rethink its First Amendment jurisprudence related to broadcast media in light of technological advances, such as the proliferation of cable and satellite television and devices like the V-chip that can help shield children from inappropriate content.
In FCC v. Pacifica Foundation, 438 U.S. 726 (1978)—the case that addressed Carlin's take on “the words you couldn't say on the public … airwaves … the ones you definitely wouldn't say, ever”—the court rejected a First Amendment challenge to the federal government's regulation of indecency over the airwaves.
That conclusion was based in part on broadcast media's “uniquely pervasive presence in the lives of all American's” and the need for what Verrilli called a “safe haven” where parents of impressionable children could turn for programming guaranteed to be free of questionable content.
But things have fundamentally changed over the past 30 years, Carter G. Phillips, Sidley Austin LLP, Washington, D.C., argued for the broadcasters.
“Cable is now equally pervasive. Cable is now equally accessible to TV, satellite equally accessible to TV,” Phillips said. Children can find the same content at issue in these broadcasts on a myriad of TV stations and over the internet.
“But that cuts both ways,” Roberts responded. “People who want to watch broadcasts with these words or expose their children to broadcasts where these words are used, where there is nudity, there are 800 channels where they can go for that,” he said.
“All we are asking for … is a few channels where you can say, ‘I'm not going to, they are not going to hear the S-word, the F-word. They are not going to see nudity,' ”Roberts explained. “So the proliferation of other media, it seems to me cuts against you.”
And although she seemed swayed by the broadcasters' vagueness arguments, Kagan was not as sympathetic to their First Amendment take.
“Here we've had something that's very historically grounded. We've had this for decades and decades that … the broadcaster is treated differently,” Kagan said.
“It seems to work and … it seems to be a good thing that there is some safe haven, even if the old technological bases for that safe haven don't exist anymore,” she added. “So why not just keep it as it is?”
Justice Anthony Kennedy also saw practical problems with limiting the FCC's authority over broadcast speech.
“But isn't the inevitable consequence, or the precise consequence that you're arguing for on this fleeting expletive portion of this case, that every celebrity or wannabe celebrity that is interviewed can feel free to use one of these words?” he asked Phillips.
Ginsburg flipped that argument around however, noting that under the current regime, broadcasters have to censor themselves, and more precisely, who they interview, for fear of being fined.
“You'd better be careful about calling certain people, certain artists to be interviewed, because we know it's unscripted. They are going to risk that they are going to say something they shouldn't say,” she pointed out.
Taking a completely different tack than his colleagues, or even the parties, Justice Samuel A. Alito Jr. seemed ready to offer a eulogy for broadcast media altogether.
“Broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and eight-track tapes,” Alito said.
“I'm sure my client is not thrilled to have you say that,” Phillips quipped.
“I'm sure your clients will continue to make billions of dollars on their programs, which are transmitted by cable and by satellite and by internet,” Alito shot back. “But to the extent they are making money from people who are using rabbit ears, that is disappearing,” he said.
“So why not let this die a natural death?” Alito wondered.
Justice Sonia Sotomayor did not participate in the argument.
A transcript of the oral argument is online at the Supreme Court's web site.
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