Some justices appear reluctant to issue broad ruling

WASHINGTON, D.C. The Supreme Court on Tuesday weighed whether the government’s current policy of sanctioning broadcasters for foul language and brief nudity was too vague to pass constitutional muster, but some justices appeared reluctant to issue a sweeping decision that would strip the FCC of almost all of its authority to police indecent content.

It was not clear which way the justices would rule, after hearing an hour of oral arguments in sometimes colorful exchanges, in which justices remarked on the penchant for today’s celebrities to drop f-bombs and some were apparently intrigued that the high court’s chambers contained relief artwork with its own portrayals of nudity.

The court is expected to make its ruling sometime before June, and there are serious stakes at play: After a long slog challenging the FCC’s Bush-era crackdown on indecent content, the networks are asking the justices to overturn the court’s landmark 1978 decision in FCC vs. Pacifica. That year the court ruled that the government could sanction stations for airing indecent material, in that case a radio broadcast of George Carlin’s famous “seven dirty words” monologue during the middle of the day.

Broadcasters argue that one of the rationales for the decision — that networks should be subject to scrutiny because they are “uniquely pervasive” in American homes — no longer holds true with the growth of cable, satellite and the Internet.

“The time has come to treat broadcast television on the same level playing field as other media,” said attorney Carter Phillips, who represented Fox.

Yet some justices wondered whether such a ruling was necessary.

“That cuts both ways,” said Chief Justice John Roberts. “People who want to watch broadcasts … where these words are used, where there is nudity, there are 800 channels where they can go for that. All we are asking for, what the government is asking for, is a few channels where you can say, ‘I’m not going to … hear the s-word, the f-word.”

Justice Stephen Breyer said, “Does this case in front of us really call for the earthshaking decision that you all have argued for in the briefs? And that’s what I’m trying to figure out, and that’s why I am particularly worried about whether or not this whole big argument here was presented to the FCC about whether we have to reach that far.”

At one point, Justice Samuel Alito suggested that the problem may even solve itself if broadcast TV disappears.

“Broadcast TV is living on borrowed time,” he said. “It is not going to be long before it goes the way of vinyl records and 8-track tapes,” he said.

“I’m sure my client is not thrilled to hear you say that,” Phillips said, to laughs in the courtroom.

Justice Antonin Scalia suggested that there was still “symbolic” value in regulating indecent content, and said that because 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.”

Short of issuing a decision overturning the Pacifica ruling, Phillips and attorney Seth Waxman, representing ABC, said that the court also could issue a more narrow decision that the current FCC indecency policy implemented in 2004 is so vague as to violate the First Amendment.

The case stems from the FCC’s ruling against Fox when Cher uttered an f-bomb on the Billboard Music Awards in 2002 and Nicole Richie swore on the same kudocast the following year. Although the case originally dealt with such “fleeting expletives,” its ramifications were great enough that it was combined with another challenge to the FCC’s policy: ABC’s suit against the government after its stations were sanctioned for showing an episode of “NYPD Blue” featuring a seven-second clip of a woman’s behind.

Solicitor General Donald Verrilli, representing the FCC, said that while there is not “perfect clarity” in the rules, only a “miniscule fraction” of cases have raised questions whether the policy is too arbitrary. He said the FCC’s “context-based” approach of deciding what is indecent is more favorable to the First Amendment than one that is more specific.

“I do think that the commission’s position is quite reasonable and sensible,” he said.

But Justice Ruth Bader Ginsburg wondered whether more artistic endeavors, like a broadcast of the musical “Hair,” or certain operas, would be able to be shown by stations without facing substantial fines. And Justice Elena Kagan referred to instances in which certain shows were found indecent, like a broadcast of Ken Burns’ PBS docu “Jazz” in which blues singers utter expletives, and others were not, like a broadcast of “Saving Private Ryan” in which soldiers used foul language.

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

“There’s a lot of room here for FCC enforcement on the basis of what speech they think is nice and proper and good. And so that’s a serious First Amendment issue.”

The high court ruled 5-4 in favor of the FCC in 2009, but it was on procedural grounds, and constitutional questions were left to a lower court. To little surprise, the 2nd Circuit Court of Appeals ruled in favor of Fox, and the FCC appealed back to the Supreme Court.

This time around, there’s a chance that the court may find itself in a tie vote. Justice Sonia Sotomayor recused herself, leaving the decision to the remaining eight justices. As always, Justice Clarence Thomas said nothing during the oral arguments, but in the high court’s previous decision, he wrote that with changes in viewing habits and technology, it could be time to take another look at the Pacifica decision.

The most humorous moment of the day came when Waxman suggested that the FCC’s current policy has opened up the floodgates to complaints, including one over the opening ceremonies of the Olympics that featured a nude statue. That artwork, he told the justices, was “very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks.”

Noticing that some of the justices were looking toward the ceiling, Waxman began pointing them out, as those in the room chuckled at the spectacle.

“Frankly, I had never focused on it before,” he admitted.

“Me neither,” Scalia shot back, to even more laughter.

Just after the proceedings, as Phillips and Waxman faced the media for an impromptu news conference, they did their best to speak over a protester, one who undoubtedly would pose a challenge for radio and TV reporters as they culled footage for air. As the two attorneys talked, the protester shouted nothing but expletives.

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