WASHINGTON, D.C.—It's been two and a half years since the U.S. Supreme Court issued its opinion, authored by conservative Justice Antonin Scalia, in the case of Federal Communications Commission (FCC) v. Fox Broadcasting, and on Tuesday morning, attorney Carter Phillips will press Fox's case once again to absolve the network of the massive fines levied by the FCC for so-called "fleeting expletives" uttered during two different broadcasts of the Billboard Music Awards.
But a lot of water has gone under the bridge since the high court issued its original opinion back in May of 2009. For one thing, the Second Circuit Court of Appeals has reconsidered its prior ruling in light of Scalia's opinion and found that the world of communications has changed drastically since the Supreme Court ruled on FCC v. Pacifica Foundation, the George Carlin "Seven Filthy Words" case, and that the basis for that ruling and a previous one, Red Lion Broadcasting v. FCC—that the public had access to too little bandwidth to justify allowing words like "fuck," "piss" and shit" to be broadcast on radio or TV—was, in the modern world with its cable TV, internet access and communication tools such as YouTube, Facebook and Twitter, no longer a viable reason to restrict such language.
Also in the interim, another long-running FCC case against ABC, Inc. and 44 of its affiliated stations was similarly decided, this time in January of 2011. At issue in that case was an episode of the long-running police drama, NYPD Blue, titled "Nude Awakening." The court described the offending material as, "In the episode, Connie McDowell (played by Charlotte Ross), who has recently moved in with Andy Sipowicz, disrobes as she prepares to shower, and her nude buttocks are visible. As McDowell turns toward the shower, the side of her buttocks and the side of one of her breasts are visible. While she faces the shower, the camera pans down, again revealing her nude buttocks. Sipowicz’s young son, Theo, enters the bathroom and sees McDowell naked from the front. Theo blocks the audience’s view of McDowell’s nudity." The Second Circuit used an analysis of the FCC's own rules to conclude that the brief (and scripted) nudity was plot-driven and not simply used to titillate or shock, that it too was of short duration, and in any case didn't explicitly "descri[be] or depict ... sexual or excretory organs or activities." However, the FCC petitioned the Supreme Court to hear the NYPD Blue case as well, and ABC's position will also be argued on Tuesday by prominent media attorney Seth Waxman.
Finally, in a decision released just two months ago, the Third Circuit Court of Appeals threw out the FCC's case against CBS, Inc. for having aired a 5/16ths-second exposure of Janet Jackson's breast during the 2004 Super Bowl halftime show. Part of the Third Circuit's reasoning in denying the FCC the enormous fines it sought from the network was that the incident occurred even before the FCC revamped its indecency rules in March of that year, but some of the logic used by the Third Circuit panel's majority may be included in Tuesday's arguments by the respondents.
With all those precedents in mind, in the lead-up to the high court battle, at least a dozen interest groups have filed amicus briefs weighing in on one side or the other of this dispute. Such groups as Creative Voices in Media, the Future of Music Coalition, the Cato Institute (to which adult entrepreneur John Stagliano is a contributor), the Electronic Frontier Foundation, PublicKnowledge and TechFreedom have all filed briefs in support of either Fox or ABC or both, while the usual suspects—Parents Television Council, Morality in Media (MiM), Focus on the Family, Family Research Council and Pat Robertson's American Center for Law and Justice (ACLJ)—as well as so-called neutral commentators including the Yale Law School Information Society Project Scholars and the New America Foundation, have filed briefs supporting the FCC's position.
"If the inability to define indecent with 'ultimate, god-like precision' means that the FCC can no longer regulate indecency, then depictions of 'hard-core' sexual conduct can be shown on broadcast TV because not all depictions of 'hard-core' sex are obscene under the Miller test," MiM's Patrick Trueman argued in a rambling brief that seeks to anchor the FCC's policies to the original Radio Act of 1927 and the Communications Act of 1934, Congress's first attempts to regulate the content of America's airwaves. It also argues that a number of later court decisions should have put the networks on notice that even unscripted expletives—like actress/singer Cher's off-the-cuff rebuke of her critics, "Fuck 'em. I still have a job and they don't," and actress Nicole Richie's similarly unexpected complaint about The Simple Life, the reality show she starred in, "Have you ever tried to get cowshit out of a Prada purse? It's not so fucking simple."—would be cause for FCC indecency enforcement.
Parents Television Council, on the other hand, based its objections to the Fox/ABC "indecencies" by arguing that according to a PTC study, radio and television have become increasingly coarse in the language it allows on television, noting in an amicus urging the Supreme Court to accept the FCC's cert petition, that, "Use of the word 'fuck,' whether bleeped or muted, increased from 11 instances in 2005 to 276 instances in 2010—including a ten-fold increase in the use of that word during Family Hour. Use of the word 'shit' was used in bleeped or muted form 11 times in 2005; by 2010 it was used 95 times. That count does not included the coy use of 'shit' in the title of the CBS show, $#*! My Dad Says, or NBC’s scripted, unbleeped use of the word in a recent broadcast of 30 Rock." (See; not only is what they say bad, so is what they don't say!) Later, in its post-cert amicus, PTC argues that broadcast television is "still a uniquely pervasive influence in America," that "The National Association of Broadcasters (NAB) announced just a few months ago that the number of those who rely solely on broadcast television has tripled (to 46 million, amounting to 15% of the television-watching public)," and that therefore, despite the other means of communication available, the spectrum scarcity argument used in Red Lion should still prevail.
In yet another example of how old censors never die, the joint amicus of Family Research Council and Focus on the Family was authored by J. Robert Flores, formerly Senior Counsel for the National Law Center for Children and Families until hired by Bush's Justice Department in 2002. (Flores' boss at the National Law Center was Bruce Taylor, late of Alberto Gonzales' Obscenity Prosecution Task Force.) In it, Flores and his associates argue that "society has a strong and abiding interest, firmly grounded in the First Amendment, in maintaining standards of decency. This interest extends especially to the preservation of standards of decency with respect to the materials broadcast into the sanctuary of our homes... Over the past fifty years, some courts, in the name of expanding free speech rights, have ignored the interest in societal decency, the government’s interest in the protection of children from indecent content, and the right to be left alone, free from the constant barrage of indecent communications. This, coupled with lax enforcement on the part of the FCC of indecency law until the beginning of the previous decade, has enabled the purveyors of indecency to overrun the rights of decent Americans, who are now bombarded by degrading, indecent, coarse, and sexually charged content on an almost around-the- clock basis." (Apparently Flores and his clients, unlike the vast majority of Americans, don't travel in circles where "shit" and "fuck" are commonly heard in everyday conversation.)
In the shortest amicus filed by any party to this dispute, the ACLJ weighs in just on the ABC case, arguing that, "An indecent television broadcast is essentially an indecent public display. Just as a state could prohibit someone from strutting around naked in public, the state could forbid someone from strutting around carrying a display—still or video—of someone naked. Likewise, a state may forbid companies from broadcasting into people’s homes programs depicting someone strutting around naked. Thus, an indecent broadcast is properly subject to government prohibition." (The trouble with that argument, of course, is that as human beings, the vast majority of Americans have seen their own asses at one point or other, so seeing Charlotte Ross's on TV can hardly have been a shock to any of them—or even their kids.)
Of course, it's hardly clear which of these arguments U.S. Solicitor General Donald B. Verrilli, Jr., representing the FCC, will adopt in his presentation to the high court, but it's likely to contain strands of all of them, with the "threat" to "public decency" undoubtedly taking center stage. And while it's clear that most of the conservative justices—Scalia, Chief Justice John Roberts and Justice Samuel Alito—will relish the appeals to "decency," it's less than clear how Justice Clarence Thomas will respond to those arguments.
"Indeed," wrote Thomas in his partial dissent in the original Fox decision, "the logical weakness of Red Lion and Pacifica has been apparent for some time: 'It is certainly true that broadcast frequencies are scarce but it is unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media'," that last sentence a 1986 quote from (ultraconservative) D.C. Circuit Appeals Court Judge Robert Bork.
Also unclear is the position of Justice Anthony Kennedy, who raised major free speech concerns in both Ashcroft v. Free Speech Coalition (the Child Pornography Prevention Act case) and City of Los Angeles v. Alameda Books. He often sides with the court's conservative members, though he too filed a mixed opinion in the original Fox case.
"If agencies were permitted unbridled discretion, their actions might violate important constitutional principles of separation of powers and checks and balances," Kennedy wrote. "To that end the Constitution requires that Congress' delegation of lawmaking power to an agency must be 'specific and detailed.' Congress must 'clearly delineat[e] the general policy' an agency is to achieve and must specify the 'boundaries of [the] delegated authority.' Congress must '"lay down by legislative act an intelligible principle,"' and the agency must follow it." Certainly, Congress has done anything but "clearly delineat[e] the general policy" when it comes to allegedly "indecent" material.
Finally, it's worth noting that staunch free speech advocates Justices John Paul Stevens and David Souter are no longer on the high court bench, and one justice who is currently on the court, Sonia Sotomayor, has recused herself from the argument, perhaps due to the fact that she used to be a Second Circuit judge, though it's unclear whether she played any part in either the Fox or ABC cases.
One thing's for sure, though: The arguments presented and the questions asked regarding these matters on Tuesday morning will be a treasure-trove of information and the basis for plenty of punditry in the months until the Supremes deliver their (hopefully) final verdict on this incredibly important free speech issue.