With one Justice testing the ultimate constitutionality of government controls on broadcast TV, another trolling for an exceedingly narrow approach, two others suggesting that technology may be overtaking the constitutional dispute, one signing himself up for rigorous morality policing, and one whose vote may really be crucial staying entirely silent, the Supreme Court on Tuesday wandered widely in its new exploration of the state of profanity and nudity on television and radio.  The lively argument in the latest round of that controversy even had a lawyer pointing out portrayals of nudity in the courtroom decorations above the Justices’ heads.

At the end of the hour of argument in Federal Communications Commission v. Fox Television Stations, et al. (docket 10-1293), nothing seemed predictable and, thus, Justice Clarence Thomas’s customary silence may have been the most eloquent expression.   The last time the Court heard this case, in an earlier version, Justice Thomas had written a separate opinion essentially dismissing as out of date the constitutional norm of giving broadcasting fewer First Amendment rights than other media enjoy.  With only eight Justices taking part this time (Justice Sonia Sotomayor is recused), it may not be possible for a majority to come together without Thomas on its side and, this time, the ultimate constitutional question he raised before is directly at issue.

Quite early in Tuesday’s argument, it was Justice Anthony M. Kennedy who brought up that question.  With U.S. Solicitor General Donald B. Verrilli, Jr., at the lectern defending the FCC’s current policy against fleeting use of four-letter words and scripted nudity on TV, Justice Kennedy asked him to spell out “the public value in having different segments of the media governed by different standards” under the First Amendment.  The Justice said that, surfing channels, it is not clear what is broadcast TV and what is not, and yet the government was saying “there was still a need for a standard for broadcast television” alone.

“Is that just because it is an important symbol for our society, that there be a small segment of culture that was not vulgar?” Kennedy asked.  Verrilli answered that a decision by the Justices embracing “a safe haven” where parents can allow their children to view television without having to worry what they see “would go a long way” to promote such a segment.

Kennedy then went into the significance of parents having access to “V-chip” technology (which he said only 15 year olds know how to turn off), wondering if it worked better on broadcast TV than on cable TV.  Verrilli said no, but then moved into his preferred argument that broadcast TV can be held to a different standard of broadcast content because it has a government license to use public airwaves, and that entitles the government to demand a safe haven for children’s viewing.  Then, turning to the V-chip, the Solicitor General expressed doubts that its coding would necessarily also blot out spontaneous profanity.  (Later in the argument, Kennedy would express somewhat ruefully the thought that an end to the current FCC policy would lead many who appear on TV to use four-letter words as freely as they liked, and predictably, they would do so.)

In a moment, Justice Antonin Scalia (the author of the Court’s prior ruling in this case, two years ago, finding that federal law gave FCC authority to have its ban on “fleeting expletives”) removed any doubt that he was as strongly on the FCC’s side on the constitutional question, too.  “Sign me up as endorsing” Justice Kennedy’s comment about symbolic value, Scalia said.  There is value, he argued, in “a certain modesty,” in language as in one’s dress, and he went so far as to suggest that “he was not sure it has to relate to juveniles” — a position that would appear to go even further than the FCC itself has ever gone.

Justice Samuel A. Alito, Jr., soon backed up by Justice Elena Kagan, wondered what would happen to government regulatory policy “when you get to only a handful of people getting their television via broadcasting.”  When Verrilli said “we are not there yet,” Kagan interjected: “We’re almost there.”  As the argument would later develop, Alito’s interest in that prospect seemed to reflect a belief that the Court should simply hold off any constitutional assessment of FCC policy, and let TV broadcasting “die a natural death,” while Kagan’s interest appeared to reflect skepticism that FCC can any longer justify the special treatment of broadcasting (although she did take a turn at pressing broadcasting’s lawyers to justify denying FCC the power to maintain a “safe haven” for underage viewers).

A bit later, Justice Alito raised an intriguing question with Fox TV’s lawyer, Carter G. Phillips of Washington, about whether the Court could fashion a constitutional rule that would give TV broadcasting more freedom, but keep radio under the existing restraints.  Phillips said the Court could do that, on a theory that the Court normally deals with each medium as a separate phenomenon.

Alito was not alone in exhibiting some concern that, if the Court found the FCC policy invalid as to TV, that would give radio the same freedom — a concern that appeared to be based on the premise that radio is definitely a raunchier medium.

With Phillips at the lectern, Chief Justice John G. Roberts, Jr., left the impression that the FCC was regulating TV only to a very modest, and entirely justified, extent.  “All we’re asking…” he started, and then began again: “All the government is asking for are a few channels where you are not going to hear the F-word and the S-word and have nudity.”  The limits of such a policy, Roberts said, “cuts against” Phillips’ argument that the proliferation of other unregulated media undermines the FCC’s need to continue regulating broadcast content, intimating that a “safe haven” was even more necessary in that environment.

Phillips, while suggesting that the broadcasters were not seeking a sweeping new constitutional ruling from the Court (since he said they were willing to leave intact a 1978 decision upholding an earlier, far less sweeping FCC policy on profanity), did contend that the broadcasters themselves pay attention to their advertisers and their viewers and thus are entirely capable of policing the content of their broadcasts.  “We don’t need the FCC any longer [in this field],” the Fox lawyer contended flatly.

The Chief Justice reacted negatively to Phillips on that point, saying it was an odd way to argue a First Amendment issue by claiming that “you’re going to be as good as you can be.”

While the Court is reviewing the Fox TV case over the issue of four-letter words during the hours of 6 a.m. and 10 p.m., when the FCC ban applies, the companion dispute it heard on Tuesday involved — for the first time — a test of the FCC’s similar ban on nudity on broadcast TV, when it is deliberately written into the script.  Washington lawyer Seth P. Waxman, arguing for ABC-TV and its affiliated stations, unleashed a sharply critical assault on the anti-nudity policy, and said it was so arbitrarily enforced that no broadcaster could know what was or was not allowed.

He gave a vigorous defense of the nude woman scene in a 2003 ABC-TV broadcast of the popular police drama, NYPD Blue, as having positive social value, in that it discussed how daily life unfolded in “blended families.”   Waxman complained that the FCC went after “seven seconds of nudity” on that program while it had found no problem with 40 seconds of it, including frontal nudity, in a broadcast of the movie “Catch 22.”  He went on to protest that the FCC allowed a display of nudity in a World War II movie (“Saving Private Ryan”), but had barred it in a documentary about the Olympics.

Waxman’s attack, the Chief Justice responded, meant that broadcasters were against FCC taking a program’s context into account, but Waxman retorted that that was not so, that broadcasters felt that context was “all important.”  But, he said, the way the Commission looks at context varies far too widely to put broadcasters on notice of what is or is not allowed.

It was during Waxman’s time at the lectern that Justice Stephen G. Breyer floated the notion that the Court should not write a broad ruling in this case, but focus solely upon the specific instances of improper exhibitions in the particular broadcasts, and determine whether the FCC could justify its action.  “Does this case call for the earth-shaking decision you all are asking for?” he asked Waxman.  The ABC-TV lawyer said the broadcasters were not asking that the 1978 decision in favor of some “indecency” controls be overruled, but argued that the industry cannot function without knowing what kinds of nudity the Commission will choose to target.   Before the agency went after the scene in NYPD Blue, the lawyer said, there had not been a single decision from the FCC dealing with nudity.

Waxman also resisted a suggestion by Justice Kennedy that the broadcasters were asking for a ruling that would mean that “if is not obscene, you can publish: period.”   The lawyer responded that the FCC could, indeed, have a policy aimed not at obscenity but at “indecency,” so long as it was applied in a constitutional way that broadcasters understood.   At the end of his argument, at Justice Breyer’s invitation, Waxman ticked off four ways that he suggested the agency could change its policy, and still have a valid approach to nudity on TV.

In Solicitor General Verrilli’s brief rebuttal time, Justice Kagan put forth her views more clearly, lambasting the FCC for an approach to regulation that she said “gives it complete discretion,” a policy in which it has “not tied itself in any way to any kind of standards,” so that “nobody can use dirty words except Steven Spielberg” (the director of the movie, “Saving Private Ryan“).

(It was Waxman who invited the Justices, at one point in his argument, to look up to their right, to view sculptured images of nudity in the north frieze.  When some of the Justices could not immediately pick out the images, Waxman helpfully suggested “Right over here.”  Justice Scalia said he had not seen them before.)

 

 

 

 

 

Posted in FCC v. Fox, Analysis, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Many options on TV rules, SCOTUSblog (Jan. 10, 2012, 2:22 PM), http://www.scotusblog.com/2012/01/many-options-on-tv-rules/