WASHINGTON, D.C.— The Supreme Court on Tuesday appeared hesitant to issue a sweeping ruling onthe First Amendment rights of broadcasters as it debated the use of profanityand nudity on television.
The Court heard arguments in the case of FCC v. Fox Television Stations,involving the Federal Communications Commission’s attempts to regulate“indecent” material over the airwaves. It stems from two brief uses ofprofanity during the 2002 and 2003 Billboard Music Awards, and an episode ofABC’s NYPD Blue that showed actressCharlotte Ross’s bare buttocks for seven seconds.
The stations are asking the high court to strike down theFCC’s indecency policy as unconstitutional. Some are even urging the Court tooverturn its landmark “seven dirty words” decision, FCC v. Pacifica Foundation, and grant broadcasters free speechrights identical to other media. At oral arguments Tuesday, however, severaljustices seemed inclined to rule narrowly.
“Does this case in front of us really call for theearthshaking decision that you all have argued for in the briefs?” AssociateJustice Stephen Breyer asked.
Attorneys for the Fox and ABC stations conceded the Courtcould rule in their favor without disturbing Pacifica, simply holding that the FCC’s existing indecency policyis too vague to stand.
Chief Justice John Roberts and Associate Justice AntoninScalia were the government’s most vocal supporters during arguments. AssociateJustice Ruth Bader Ginsburg, by contrast, appeared most sympathetic to thebroadcasters’ concerns.
“We want the King’s English — for the very children we’retalking about, when they go on the street, when their big brother sayssomething to them… the expletives are in common parlance today,” Ginsburg said.“I think that children are not going to be shocked by them the way they mighthave been a generation ago.”
The one-hour arguments were also marked by several exchangesthat caused the courtroom to briefly erupt in laughter. Seth Waxman,representing the ABC stations, mentioned that the FCC is currently addressingcomplaints involving a nude statue from broadcasts of the Olympic games. At onepoint, Waxman began pointing out similar statues on the courtroom walls.
“Right over here, Justice Scalia,” Waxman said. “Well,there’s a bare buttock there, and there’s a bare buttock here. And there may bemore that I hadn’t seen. But frankly, I had never focused on it before. But thepoint—”
“Me neither,” Scalia interjected.
Associate Justices Samuel Alito and Elena Kagan observedthat the number of people receiving over-the-air broadcasts has continued todecline, with Alito claiming it won’t be long before it “goes the way of vinylrecords and 8-track tapes.”
“So why not let this die a natural death? Or why do you wantus to intervene?” Alito asked of Carter Phillips, counsel for the Fox stations.
Those urging the Court to overturn Pacifica have tried to undercut the 1974 case’s two main rationalesfor allowing the government to regulate material in broadcasting that it couldnot punish in other media. The Court held then that the lesser standard isjustified by broadcasting’s uniquely “pervasive” nature and uniqueaccessibility to young people.
The FCC, represented by Solicitor General Donald Verrilli,argued those rationales are still relevant despite the rise of cable televisionand the Internet.
The TV stations argue that even if Pacifica stands, the FCC’s policy in recent years allowing finesfor even brief nudity or profanity is unconstitutional. They claim the FCC’spractices give them no clear warning as to what may be considered indecent andwhat may not.
Verrilli countered that Pacificarequires the FCC to take into account the overall context of the broadcast,which is “going to result in something less than absolute precision.”
The Student Press Law Center filed a “friend-of-the-court”brief in the case, joined by College Broadcasters, Inc.
The justices gave no clear indication how the Court mightrule. Only eight of the justices are participating – Associate Justice SoniaSotomayor recused herself – creating the possibility of 4-4 tie vote. In theevent of a tie, the lower court decisions in favor of the broadcasters willstand.
An opinion in the Foxcase is expected sometime before July.