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Justices Are Split on Broadcast "Indecency"

(January 11, 2012) - Yesterday's long-awaited Supreme Court argument on the constitutionality of the Federal Communications Commission's rule against "indecency" on the airwaves was rocky and inconclusive. Despite high hopes of many observers that the Court will finally strike down this anomalous policy of government censorship, only two justices - Ruth Bader Ginsburg and Elena Kagan - expressed First Amendment concerns, and the two lawyers representing the broadcast industry mainly focused their arguments on ways that the Court could rule for their clients while leaving the indecency regime intact.

The combined cases argued yesterday involved the FCC's 2004 "fleeting expletives" rule - a dramatic shift in policy holding that even one vulgar word uttered during a broadcast is presumptively indecent (the FCC v. Fox Television case); and the Commission's decision to punish ABC-TV for a shot of a nude female posterior on NYPD Blue (the FCC v. ABC case).

The U.S. Court of Appeals for the Second Circuit ruled in 2010 that the fleeting expletives rule - indeed, the entire indecency regime - is unconstitutionally vague, since broadcasters cannot know when the FCC will find a vulgar word or sexual or excretory reference to be indecent. The FCC's "contextual" decision- making has led to such inconsistences as approval for the curse word-laden film Saving Private Ryan, but punishment for PBS stations airing a Martin Scorsese documentary on the blues.

In the ABC case, the Second Circuit followed its ruling in Fox and found that the broadcaster could not have known that the nude image in the frequently edgy NYPD Blue would be found indecent. Vague censorship regimes inevitably force writers, artists, producers, and directors to self-censor valuable speech in order to steer clear of possible sanctions, a phenomenon copiously documented in briefs to the Court.

Several briefs urged the Court finally to overrule its 1978 decision in FCC v. Pacifica Foundation, or at least, to limit it narrowly to its particular facts. Pacifica iinvolved a radio broadcast of comedian George Carlin's comic "Filthy Words" monologue. The Court allowed FCC censorship on the theory that the airwaves are "uniquely pervasive" and "uniquely accessible to children." Neither proposition holds true, of course, in the current mass media. The FCC's defines indecency as material that is "patently offensive as measured by contemporary community standards for the broadcast medium."

Chief Justice John Roberts and Justice Samuel Alito set the tone for yesterday's argument with expressions of support for the indecency regime. Responding to the claim that broadcasting should not be treated differently from other media, which have full First Amendment protection, because it is no longer the "uniquely pervasive" medium it was at the time of Pacifica, Roberts told Carter Phillips, the lawyer for Fox Broadcasting:

That cuts both ways. 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.

Roberts then betrayed his leanings by saying, "all we are asking for" - then corrected himself and saying "what the government is asking for" - "is a few channels where [children] are not going to hear the S word, the F word. They are not going to see nudity. So the proliferation of other media it seems to me cuts against you."

Justice Alito likewise defended the FCC's admittedly vague, "context"-based approach to deciding what is indecent by warning Seth Waxman, the lawyer for ABC, of the alternative - a more rigid policy "that says there are certain body parts you can never show." He did not mention a third alternative - that the government should not (short of constitutionally unprotected obscenity) be in the business of deciding what broadcasters can show in the first place. "If we rule in your favor on First Amendment grounds," Alito asked Phillips, "what will people who watch Fox be seeing between 6:00 a.m. and 10:00 p.m.? Are they going to be seeing a lot of people parading around in the nude and a stream of expletives?"

Phillips's answer - that broadcasters, responsive to advertisers and to popular opinion - have their own self-censorship systems in place - did not seem to satisfy Alito and Roberts.

An even more striking pro-censorship argument came from Justice Antonin Scalia, who six months ago wrote a strong First Amendment opinion for the Court invalidating a California law that restricted minors' access to violent video games. Scalia expressed his support for continuing government censorship of the airwaves not based on any constitutional rationale or showing of harm to minors, but on "symbolism." After Justice Anthony Kennedy rephrased Solicitor General Donald Verrilli's argument "that there is a public value in having a particular segment of the media with different standards than other segments," Scalia said:

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 and the people that attend other federal courts. … These are public airwaves, the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth.

It was a remarkable statement, especially from a justice who only six months before had writtten that “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content”; but it also reflected a political truth: FCC censorship does nothing to protect or educate children, but it does send an essentially symbolic message of government disapproval. The fact that only 10% of the population still accesses broadcast TV over the airwaves rather than through a cable only undermines the shrinking impact of FCC censorship on the overall media landscape.

In this respect, Justice Alito contributed another moment of political candor. Broadcast TV "is living on borrowed time," he told Phillips. "It is not going to be long before it goes the way of vinyl records and eight-track tapes." Why issue a groundbreaking First Amendment decision, he asked, rather than "let this die a natural death? Why do you want us to intervene?"

Justices Kagan and Ginsburg were left to make the constitutional arguments against the FCC's shifting and subjective indecency regime. Kagan pointed out that the way the FCC seems to work,

it's like nobody can use dirty words or nudity except for Steven Spielberg and that there's a lot of room here for FCC enforcement on the basis of what speech they think is kind of nice and proper and good. And so that's a serious First Amendment issue.

Ginsburg likewise summarized "the major objection" to the indecency regime: "one cannot tell what's indecent and what isn't; ... it's the FCC, the censor, that's saying Private Ryan is okay, Schindler's List is okay, but NYPD Blue is not. And I do think that that is the major objection, that we have a government agency that is going to make decisions about when nudity is okay and when it isn't."

"If they did an excerpt from Hair," Ginsburg asked Verrilli, "could they televise that?"

Verrilli acknowledged that "nudity is going to raise very serious questions."

Ginsburg persisted: "In the opera The Makropulos Case, there's a scene where a woman is seen nude entering a bathtub. Suppose that were shown, that scene from the opera."

Verrilli again conceded that "in a context-based approach, there's not going to be perfect clarity. We recognize that." But he said that "the number of broadcasts that have been identified as even raising a question of arbitrariness or inconsistency is really quite a miniscule fraction."

The lawyers for the broadcasters both sought ways to win the case without undoing FCC censorship. Seth Waxman did make a forceful attack on "the FCC's current enforcement regime," which he said, "not only intrudes into the prohibited zone [of constitutionally protected speech], but also enforces the indecency ban in a starkly inconsistent manner," allowing "40 seconds of nudity including full frontal nudity in Catch-22," but not "seven seconds of of rear nudity" in NYPD Blue.

But Waxman did not press for invalidation of indecency censorship or a retreat from Pacifica, which, he said, approved only an "emphatically narrow enforcement regime." He argued instead for a return to "the prior enforcement regime that existed before 2004, which deferred to reasonable judgments, [and] was restricted to material that is not momentary exposure but is dwelled upon." Forgotten here were the many problems of vagueness, arbitrary enforcement, and draconian penalties that existed before the Janet Jackson Super Bowl "wardrobe malfunction" in 2003 and the resulting "fleeting expletives" rule signaled a harsher FCC approach.

Judging from the argument, the likely swing votes in this case are Justices Anthony Kennedy and Stephen Breyer. (Justice Sonia Sotomayor did not participate; Justice Clarence Thomas, as usual, said nothing at argument, but has frequently asserted that there is no basis for treating broadcasting differently from other media.) Justice Breyer's questions solely concerned how the Court might avoid deciding the constitutional issues.

Update: On June 21, 2012, the Supreme Court vacated the indecency findings against Fox and ABC on "due process" grounds; that is, the FCC failed to give the broadcasters fair notice that their programs could be found indecent. The Court declined to decide the First Amendment issues. See "The FCC and Indecency: The Supreme Court Decides Not to Decide."

See FEPP's previous analyses and background articles:

Supreme Court Clears the Way for Ending FCC Censorship of the Airwaves

Back to the Past: the Government’s Brief in the “Fleeting Expletives” Case

Second Circuit Rules FCC Censorship of Indecency is Unconstitutional

On Justice Scalia's decision in the violent video games case, see Requiem For California's Video Game Law.

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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