Washington

Supremes Get Earful On Indecency

Justices express concern over removing indecency safe harbor, but there is also some head-scratching over how FCC applied its standards on swearing and nudity 1/10/2012 03:13:20 PM Eastern

Beneath carved friezes of figures displaying naked buttocks and breasts, the Supreme court hosted the latest round in the battle between broadcasters and the government over the FCC's indecency regs, and the Justices indicated they may not be comfortable with granting broadcasters totally free speech, but several seemed as perplexed as broadcasters at the FCC's application of its indecency standards.

That came in oral argument in the government's challenge to a Second Circuit court ruling that the FCC's indecency findings against swearing on a Fox awards show and ABC's NYPD Blue, and that enforcement policy in general, were unconstitutionally vague. The argument was before eight Justices, with Justice Sonia Sotomayor recusing herself as a former member of the Second Circuit appeals court whose ruling is at issue.

Justice Antonin Scalia suggested that a "modicum of decency" was not an unreasonable quid pro quo for a broadcast license, and Justice Anthony Kennedy suggested there was a "symbolic" value in different standards for different media. "Sign me up," said Justicer Scalia, who added that he was not sure that it even needed to be related to children. The FCC currently has a 8 a.m.-10 p.m. "safe harbor," in which indecent broadcasts are prohibited.

Justice Elena Kagan, though raising issues about how the FCC made its content calls, suggested that FCC spectrum license broadcasters held gave the government some leeway and asked whether the safe harbor might be a good thing.

Carter Phillips arguing for Fox and Seth Waxman arguing for ABC countered that the way the FCC was enforcing that harbor had led to inexplicable decisions that chilled speech and held up hundreds of license renewals. Phillips said that the license quid pro quo did not include trading away First Amendment protections.

But Both Kagan and Ruth Bader Ginsburg brought up the issue of the vagueness of the standard. Ginsburg pointed out that while Saving Private Ryan was OK with the FCC, as was 40-plus seconds of nudity in Catch 22 -- including full frontal nudity -- seven seconds of nudity in NYPD Blue was not. "That has the appearance of arbitrariness," she said. Verilli countered that any contextual standard was not going to be perfect and that the alternative was a bright-line standard that would tell broadcasters what they could "never" air.

Kagan pointed out that in the FCC enforcement policy, some nudity is OK, some not, some body parts are OK, and some not. And when it came to swearing, she said, it appeared that only Steven Spielberg was free to do so.

Andrew Schwartzman, who submitted briefs from TV producers, writers and directors in support of ABC and Fox, said it was clear that the Justices had concerns about

Solicitor General Donald Verilli's opening argument had been that broadcasters are sitting on billions of dollars in valuable spectrum, have must-carry rights and preferred channel positioning on cable system and that the historic price for that free spectrum was enforceable public interest obligations, including indecency regs.

Waxman and Phillips suggested a compromised First Amendment should not be part of that deal.

While Phillips argued strongly for giving broadcasters the same First Amendment freedoms as the cable channels they were next to on cable lineups, he said he would be OK with keeping indecency regs for radio but not for TV.

Verilli's initial argument had also included saying that if the Supreme Court upheld the Second Circuit, it would sweep away indecency regs that had helped put shock jocks in check, even though neither Fox nor ABC had argued that radio was less uniquely accessible or that there was a v-chip parental control device.

Asked by Justice Samuel Alito whether the court could free up TV while leaving indecency regs on radio, Phillips said "absolutely," arguing that the rise of cable and the Internet was a changed circumstance specific to TV and the 800 cable channels that don't have indecency regs.

Chief Justice John Roberts said that argument cut both ways, however, and that 800 channels meant that there were alternatives for those who wanted racier content than the FCC permitted on broadcast.

Phillips countered that speech could not be balanced by handicapping one speaker over another.

Justice Kennedy appeared to favor a narrow decision, asking whether the court could simply decide that, as applied, the FCC's rulings in these particular instances had been out of bounds, without going to the "earth-shattering" extremes suggested by overturning the enforcement regime -- dating back to the 1978 Pacifica case.

In a press conference after the argument, Waxman and Phillips conceded it might be a narrow decision. In his argument, Waxman had even offered up suggestions for how the FCC could better apply a contextual standard, including consistent application of a standard that it explained better.

The court is expected to rule by the end of June, after which the FCC will likely either be enforcing its challenged fleeting indecency and nudity policy, or trying to come up with a new one that passes muster.

At times it was hard to hear Waxman and Phillips at the press conference, which was held on the steps outside the court. That is because there was a man shouting the seven "filthy words" from Carlin's monologue over and over in some form of protest.

Justice Alito suggested during his questioning that broadcasters were living on borrowed time and were about to go the way of the eight-track tape and vinyl. He asked why not just let the issue die "a natural death." Phillips said that his clients obviously didn't agree with that assessment of their future.

At one point, Waxman fired  back at the suggestion that the NYPD Blue episode was about sexual awakening when Justice Kennedy referred to it in that context and suggested the FCC had a case for calling the scene titillating. Waxman said it was instead about sexual awkwardness. He also said it was "untrue" that the scene was a shock comparable to the "Filthy Words" monologue at issue in Pacifica and that ABC should have had fair warning the scene could run afoul of the FCC, as Verilli argued. He pointed out that the show had featured numerous scenes, including the premiere episodes lovemaking scene, that had not drawn FCC action.

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