Several justices seem to support FCC decency rules

Wednesday, January 11, 2012

WASHINGTON — Neither the f-word nor the s-word was uttered in the Supreme Court yesterday as justices heard debate over the Federal Communications Commission’s rules against profanity and nudity on broadcast television.

There were, however, six references to buttocks — including some marble posteriors visible in the courtroom itself on the sculpted friezes high on the courtroom walls.

But overall, given the subject matter, the tenor of the argument was fairly dignified — which seemed to help the government make its case that in a coarsened world of anything-goes discourse on the street as well as on cable television and the Internet, there’s still a need for a haven devoid of profanity and exposed bodies.

Solicitor General Donald Verrilli Jr. made that almost sentimental pitch to the justices, several of whom seemed fearful that if the FCC’s rules were struck down, then “every celebrity or wannabe celebrity that is interviewed will feel free to use one of these words,” as Justice Anthony Kennedy put it at one point.

Still, at the end of the hourlong arguments, it was not certain whether the nostalgic appeal of a “haven” would carry the day and rescue the FCC rules. Verrilli did, however, seem to ward off a full-scale review of precedents that have been used to justify regulating broadcasters differently from other media.

The case FCC v. Fox Television Stations is the latest round in a long First Amendment dispute between on-air broadcasters and the FCC over what the media view as vague and unconstitutional policies against indecent language and nudity that have left them uncertain about what can and cannot be aired. The last time the dispute was argued before the Court, in 2008, the clerk’s office advised lawyers beforehand not to use the offending words during their arguments – advice that apparently was still in effect yesterday.

“It does make a difference to preserve a safe haven where if parents want to put their kids down in front of the television at 8 p.m., they know that there’s a segment of what’s available where they’re not going to have to worry about whether the kids are going to get bombarded with curse words or nudity,” Verrilli told the justices.

Verrilli also said such restrictions were part of the longstanding bargain broadcasters make with the government in exchange for enormously profitable free access to public airwaves.

Chief Justice John Roberts, father of two young children, signaled his endorsement of the “safe haven” argument with a revealing slip in the use of pronouns: “All we are asking for — what the government is asking for — is a few channels where … they are not going to hear the s-word, the f-word. They are not going to see nudity.”

Kennedy also responded positively, stating that “having a higher standard or different standard for broadcast media” stands as “an important symbol for our society that we aspire to a culture that’s not vulgar in a very small segment.”

Justice Antonin Scalia chimed in too. “Sign me up as supporting Justice Kennedy’s notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court.”

Justice Samuel Alito Jr. also seemed to favor upholding the FCC rules, but he expressed his view in a provocative way. He suggested to the lawyers for the broadcasters that they should allow the FCC rules to “die a natural death.” Broadcast television, he said, is “living on borrowed time. It is not long before it goes the way of vinyl records and 8-track tapes.”

A stunned Carter Phillips, who represented Fox, said, “I’m sure my client is not thrilled to have you say that.”

Coming from four conservative justices, these comments seemed to bode well for the government — except for two factors. First, conservative Justice Clarence Thomas, who was silent as usual during the arguments, is not a definite fifth vote in favor of the FCC rules; he has said regulating broadcasting more severely than other media has “questionable validity.”

Second, Justice Sonia Sotomayor took herself out of the case, probably because she was a judge on the 2nd U.S. Circuit Court of Appeals when that court considered the Fox case. With only eight justices voting, a 4-4 tie would mean that the 2nd Circuit decision striking down the regulations would stand. The government needs five of eight votes to overturn the 2nd Circuit and uphold the FCC rules.

At least three justices seemed critical of the Bush-era crackdown on nudity and offensive language. The specific instances at issue involved “fleeting expletives” used by Cher and Nicole Richie during live broadcasts of music-award shows, as well as an “NYPD Blue” episode that contained a brief partial shot of a nude woman from behind.

Justice Ruth Bader Ginsburg appeared most sympathetic to the networks, asserting that the words that Fox was fined for are “in common parlance today” among children. “The children are not going to be shocked by them the way they might have been a generation ago.”

Justice Elena Kagan also seemed perturbed by the vagueness of the standards, under which the networks were fined for nudity and profanity — but there was no punishment for airing movies with the same attributes, such as “Saving Private Ryan” and “Schindler’s List.”

“The way that this policy seems to work, it’s like nobody can use dirty words or nudity except for Steven Spielberg,” Kagan said.

Justice Stephen Breyer’s sympathies were less clear, but he seemed to suggest at one point that the episodes before the Court should not have been cause for punishment of the networks.

Both Phillips and Seth Waxman, who represented ABC, emphasized that the indecency rules had been enforced unevenly in recent years. Phillips said the renewal of television licenses has come to a “screeching halt” because of a flood of frivolous, “ginned-up, computer-generated” complaints from the public about profanity and nudity.

Even the opening ceremony of the most recent Olympics was the target of complaints, Waxman said, because it “included a statue very much like some of the statutes that are here in this courtroom, that had bare breasts and buttocks.”

As he spoke, Waxman pointed to the marble friezes high above his head, which display sculpted images of historical and allegorical legal figures. Several justices followed his lead to look toward the ceiling.

“Over here, Justice Scalia,” Waxman said. “There’s a bare buttock there, and there’s a bare buttock here. And there may be more that I hadn’t seen. But frankly I had never focused on it before.”

“Me neither,” Scalia replied.

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