Lawyer makes startling argument in Supreme Court hearing on FCC
A lawyer arguing that the FCC has gone overboard in its regulation of broadcast nudity and language directed the justices' attention to the bare buttocks of statues in the Supreme Court. The justices are considering whether FCC rules are inconsistent.
Washington
Not often can one watch a former solicitor general of the United States directing venerable Supreme Court justices to observe naked posteriors of the marble statues that stand sentinel at the highest court in the land.
鈥淭here鈥檚 a bare buttocks there,鈥� Washington lawyer Seth Waxman advised the startled justices during his oral argument on Tuesday.
鈥淎nd there鈥檚 a bare buttocks here,鈥� he said, pivoting and pointing across the ornate courtroom.
The black-robed justices obliged the lawyer by following his extended finger to a sculptor鈥檚 rendition of gluteus maximus.
This was no voyeuristic dalliance.聽Mr. Waxman was hoping to convince the high court that the Federal Communications Commission had gone haywire in threatening to sanction broadcast television stations for the fleeting appearance of a naked body part or of a blurted expletive during prime-time television.
He told the justices that the FCC鈥檚 new beefed-up effort to stamp out televised indecency was so vague and ill-defined that it was difficult to know what was legal and what wasn鈥檛.
Waxman, solicitor general under President Bill Clinton, said the FCC had even received complaints about television coverage of the opening ceremony of the Olympics. The cameras had apparently panned past statues revealing breasts and buttocks.
That鈥檚 when Waxman turned his gaze upward to point out similar outrages right there in the courtroom.
Earlier, the current solicitor general, Donald Verrilli, argued on behalf of the Obama administration that the court should uphold the FCC鈥檚 tougher enforcement effort.
He conceded that the FCC鈥檚 new rule lacked 鈥減erfect clarity.鈥� But short of banning certain words in all contexts, some amount of leeway was necessary to achieve a balanced approach acknowledging free speech requirements, he said.
The FCC "is trying to make reasonable accommodations for First Amendment values,鈥� Mr. Verrilli said.
FCC gets tough
Broadcasting has been regulated in the US since the 1920s. In 1978, the Supreme Court upheld the power of the FCC to ban broadcasts that it deemed 鈥渋ndecent.鈥� But over the next 25 years, the agency only rarely attempted to enforce those provisions.
Broadcasters were on notice that the government was watching, but the FCC鈥檚 approach was more permissive and forgiving than punitive.
That changed in 2004, when the FCC began to counter what it viewed as an increasingly permissive and toxic media environment with the growth of cable and satellite television services and free-ranging content on the Internet.
In a direct assault on the FCC effort, broadcast companies are now asking the Supreme Court to overrule its 1978 decision and, in effect, deregulate broadcast television and radio.
They argue that the FCC standards are obsolete given the rise of alternative media with more permissive content.
The Obama administration disagrees.
Blame it on Bono
Verrilli said FCC enforcement is essential to monitor radio programming. In addition, he said the FCC rules could help maintain broadcast television as a haven where parents would not have to worry about their children being bombarded with sexually explicit images and foul language.
The tough new standards at the FCC came after complaints about a series of broadcasts involving celebrities using foul language during televised award shows. Cher used the 鈥渇-word" at the 2002 Billboard Music Awards. Bono used the "f-word" at the 2003 Golden Globe Awards. And Nicole Richie used both the 鈥渇-word" and the 鈥渟-word" during an appearance at the 2003 Billboard Music Awards.
The FCC also objected to a 2003 episode of Fox Television's "NYPD Blue" that featured a seven-second view of a woman鈥檚 exposed buttocks and a side view of her breast as she prepared to take a shower.
Under the FCC鈥檚 policy, broadcasters are expected to provide programming suitable for family viewing from 6 a.m. to 10 p.m., when children may be watching.
The music award shows all aired during prime time. The "NYPD Blue" program aired at 10 p.m. on the East and West Coasts, but aired in prime time at 9 p.m. in the Midwest. That鈥檚 the basis of the FCC鈥檚 complaint, that it should have aired that episode one hour later.
This is not the first time the Supreme Court has considered the FCC鈥檚 indecency policy. In 2009, the Supreme Court reversed a New York appeals court鈥檚 decision invalidating the rule based on the way the policy was adopted. On remand, the appeals court again struck down the policy, this time on grounds that it was unconstitutionally vague.
Only eight justices will decide the case. Justice Sonia Sotomayor stepped aside because she was on the appeals court panel that considered the case at an earlier stage.
Double standard?
One frequent complaint about the FCC policy is how the agency can justify banning the 7-second bare buttocks on "NYPD Blue" and the use of expletives in awards shows, yet allow the prime-time broadcast of "Schindler鈥檚 List" (with naked women in a detention camp) and "Saving Private Ryan" (with frequent use of foul language).
鈥淚t鈥檚 like nobody can use dirty words or nudity except Steven Spielberg,鈥� Justice Elena Kagan observed. 鈥淭hat鈥檚 a serious First Amendment issue,鈥� she said.
鈥淚 disagree,鈥� said Verrilli, who replaced Kagan as the Obama administration鈥檚 solicitor general. 鈥淲e are talking about a tiny, tiny number of the broadcasts that occur.鈥�
Verrilli said it was 鈥渃lear which side of the line something fell on,鈥� when examining FCC indecency decisions. He conceded that there would be some 鈥渉ard cases,鈥� but that their number would be trivial.
Justice Anthony Kennedy wondered if the FCC policy were struck down whether it might send a message to foul-mouthed celebrities that television was suddenly a safe medium for swearing. 鈥淚sn鈥檛 it inevitable that this will happen?鈥� he asked.
Washington lawyer Carter Phillips, representing Fox Television, said foul language could be bleeped from live programs. In addition, he said advertisers and viewers insist on a certain level of restraint. 鈥淵ou don鈥檛 need the Federal Communications Commission any longer under these circumstances,鈥� he said.
Justice Antonin Scalia disagreed. 鈥淲hat you acknowledge to be the vulgarity of cable suggests otherwise, doesn鈥檛 it?鈥� he asked.
Mr. Phillips said the FCC鈥檚 tough policy had thrown the broadcast industry into turmoil, raising threats of fines and license revocation, and chilling creativity in programming.
鈥淎s we sit here today, [we are] literally facing thousands and thousands of ginned-up computer-generated complaints that are holding up literally hundreds of TV license renewals, so that the whole system has come to a screeching halt,鈥� he said.
The case is FCC v. Fox Television (10-1293). A decision is expected by late June.