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High Court Justices Ponder the Meaning and Scope of 'Indecency'

High Court Justices Ponder the Meaning and Scope of 'Indecency'

WASHINGTON, D.C.—As adult industry members and fans are quite aware by now, "obscenity" is illegal to sell although legal to possess, at least according to the U.S. Supreme Court, and as AVN readers are certainly aware, no one, including Supreme Court justices, has any concrete idea what the word even means, beyond Justice Potter Stewart's claim that, "I know it when I see it."

But while porn industry attorneys, producers and pundits spend plenty of time parsing that conundrum, the argument that took place before the Supreme Court last Tuesday in Federal Communications Commission (FCC) v. Fox Broadcasting and FCC v. ABC, Inc., featured the mainstream equivalent of that argument: What does "indecent" mean, and what should be done when whatever-it-is shows up on TV and radio?

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Of course, one major difference between the two situations is that if an adult producer or retailer is found guilty of having sold or displayed "obscenity," the punishment may be five or ten years (or more) in federal prison and hundreds of thousands of dollars in fines, whereas if a TV or radio station is determined (usually by FCC commissioners) to have broadcast something "indecent," the punishment can be millions of dollars in fines, at $325,000 per "incident," but no jail time for anyone—although such a finding can leave a black mark on the station's or network's permanent record, a record that will follow it through every license renewal proceeding for the rest of its "life."

But the Fox and ABC cases did wind up in court, and for Fox, the Supreme Court argument was the second time The Nine had heard the case. Originally, the Second Circuit Court of Appeals had ruled in Fox's favor on the basis that according to the federal Administrative Procedures Act, the FCC had not given Fox enough notice that the "fleeting expletives" uttered during two successive Billboard Music Awards shows—Cher dismissing critics in 2002 by saying, "Fuck 'em. I still have a job and they don't," and the following year, The Simple Life star Nicole Richie griping, "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."—were actionable, since the agency had never previously fined a network for a similar occurrence. But the Supreme Court overturned the Second Circuit's decision and remanded the case, at which point the Second Circuit delved into the meat of the issue and ruled that even by the Commission's own criteria, the Cher and Richie outbursts weren't "indecent."

ABC, on the other hand, had also fared well in the Second Circuit, which ruled that a seven-second shot of actress Charlotte Ross's ass crack as she was about to take a shower during a 2003 episode of NYPD Blue, as well as a momentary side view of her tit and ass and a "full frontal" shot where viewers only saw Ross's hands over her breasts and her pubic region hidden behind the head of the child actor playing her boyfriend's son, also did not fit the FCC's (non-)definition. Moreover, since the show was telecast after 10 p.m. on both coasts, putting it squarely within the FCC's "safe harbor" for such material, but at 9 p.m. in the midwest, the FCC's complaint dealt only with (generally conservative) midwestern viewers.

The FCC's position was argued by Solicitor General Donald Verrilli, who began by claiming that such momentary mentions of "indecent" words had been banned since at least the Radio Act of 1927—a claim which former Solicitor General Seth Waxman, representing ABC, later disputed, pointing out that until the 1978 case of FCC v. Pacifica Foundation—the George Carlin "Seven Filthy Words" case—the FCC had not brought one single "indecency" case to court.

Nonetheless, Verrilli waxed eloquent—and promptly shot himself in the foot by claiming that, "I want to make sure, given the kind of vile material that the record demonstrates has been transmitted over time on radio, that the Court focuses on the breadth of the argument that the Respondents are making here."

But if there's been lots of "vile material" transmitted over the radio and the FCC hadn't previously acted upon it, why all of a sudden did they decide to do it in these two cases—and a third not under consideration here: The Janet Jackson 7/16ths' second tit exposure during the 2004 Super Bowl halftime show? (Hint: The new rules were announced during the George W. Bush administration by Bush's hand-picked FCC head, Kevin J. Martin.)

Fortunately, Justice Ruth Bader Ginsburg, a former ACLU General Counsel, cut right to the heart of the matter.

"General Verrilli, I took it from the briefs and what the FCC has been doing that the major objection is that one cannot tell what's indecent and what isn't; that it's FCC, the censor, that's saying [Saving] Private Ryan is okay, Schindler's List is okay, but NYPD Blue is not," she stated, citing two movies that feature copious vulgarities and at least some nudity. "And I do think that that is the major objection, that we have a—a government agency that is going to make decisions about when nudity is okay and when it isn't. You can't do it in terms of time because the NYPD was 7 seconds and another broadcast, Catch-22, was 40 seconds. So it's—it's the appearance of arbitrariness about how the FCC is defining indecency in concrete situations."

Of course, Verrilli had no real answer for the justice's inquiry, and so back-pedaled by claiming that Ginsburg's "lens" was "focused too narrowly"; that one had to remember that the FCC indecency charges represented only a "miniscule fraction" of all broadcasts, implying that the mere fact of the FCC's choice of what to prosecute should be given credence because they don't do it that often.

And then he stuck his foot in his mouth again.

"And yes, we would concede that there is not perfect clarity in this rule," Verrilli admitted. "It's a context-based rule. As we read Pacifica, the Court suggested in Pacifica that the context-based rule may well be what the Constitution requires here, and that's going to result in some—something less than absolute precision. But the—of course, the alternative, I would assume from my friend's perspective, would be worse. The commission could have a list that said: Never say the following however many words, never show broadcasting between the hours of 6:00 a.m.—nudity between the hours of 6:00 a.m. and 10:00 p.m. That would be clearer, but it would—but in a way the commission here, I think by following the context-based approach that I think Pacifica suggested was required, is being—'punished' is too strong a word, but it's being held against it that it's trying to make reasonable accommodations for First Amendment values."

Right! Much better to make broadcasters guess at what's decent and indecent in FCC commissioners' minds than to set out a list of what they can't say or show! Yeah, that's a "reasonable accommodation for First Amendment values"! One would think that a solicitor general would understand that the law—and particularly First Amendment law—requires precision, so that ordinary citizens know what's legal and what isn't, especially since the text of the First Amendment makes no such distinction. But of course, the equally vague obscenity laws are still on the books, so it's understandable that he might be confused.

The argument transcript reveals that at least some of the justices were unclear whether they were hearing arguments mainly directed at the Fox "fleeting expletives" case or the ABC "fleeting nudity" case or both—at least partly because, as Justice Stephen Breyer observed, most of the briefs in the case dealt more with the ABC case than Fox.

Nonetheless, Breyer honed in on an important aspect of both cases: What constitutes "indecent speech" according to the FCC's own guidelines? Breyer specifically referred to the phrase "material dwells on or repeats," which is contained in the following FCC guideline: "In our assessment of whether material is patently offensive, context is critical. The FCC looks at three primary factors when analyzing broadcast material: (1) whether the description or depiction is explicit or graphic; (2) whether the material dwells on or repeats at length descriptions or depictions of sexual or excretory organs; and (3) whether the material appears to pander or is used to titillate or shock."

Clearly, neither the Cher/Richie outbursts nor the NYPD Blue ass revelation "dwell on or repeat" the language/image, and while that apparently once mattered, according to the FCC, it no longer is a deciding factor.

"No single factor is determinative," the FCC guideline states. "The FCC weighs and balances these factors because each case presents its own mix of these, and possibly other, factors."

So in other words, the FCC can consider repetition, explicitness, pandering, shock, titillation or "possibly" any other factors in making its decision—and yet Verrilli had the temerity to argue that the guidelines aren't vague!

"I would like to spend a minute on that question of whether there is vagueness as applied to the ABC broadcast," he stated. "Now, the commission's standards in the 2001 ["Golden Globe rule"] guidance say that this is essentially a two-part test. First is a subject matter question: Is there a description or depiction of sexual or excretory activities or organs? And then there is the question of whether the depiction or description is patently offensive under community standards for broadcast, informed by three factors: Whether the expression is explicit; whether the broadcast dwells on it; and whether it's shocking or pandering or titillating. Now, ABC makes an argument with respect to this broadcast that the nudity in the NYPD Blue episode is outside of the first subject matter criteria because it didn't have fair notice that buttocks would be considered sexual organs for purposes of application of this—of this standard. The commission said... that it's impossible to believe that they didn't think that the naked display of buttocks would bring them within—that they didn't have fair notice that the naked display of buttocks would bring them within this rule."

(Of course, Verrilli missed the boat by referring to Ross's ass as a "sexual organ," where it might more properly be termed an "excretory organ" under the FCC guideline, even though the actual excreting part—the asshole itself—was not visible.) (Then on the other hand, maybe Verrilli does consider the ass a "sexual organ"...)

But Justice Elena Kagan saw the flaw in Verrilli's claim.

"Well, the broader point, General Verrilli, isn't it, is that no matter—even if you are right that there are many non-vague applications of this commission policy, that there is some amount of uncertainty and ABC finds itself in that area of uncertainty," she assessed, "because it turns out that nudity—that there really—sometimes it's allowed as to some body parts and sometimes it's not allowed, and the commission hadn't really said anything about it for 50 years, and the length of time doesn't seem to be what's indicative of anything, the kind of body part doesn't seem to be, with some limits, what is indicative of anything, so that ABC just didn't really know."

In other words, the FCC's "rule" is the very definition of vagueness!

Verrilli tried to sidestep the question by noting that it's "exceedingly rare" to see nudity on TV during the non-safe-harbor period of 6 a.m. to 10 p.m.—but Ginsburg wasn't about to let him get away with that.

"Well, I'm not so sure," she responded, "because the examples were given of I guess excerpts from Private Ryan and from Schindler's List, have been on television."

"Yes, that's true, Justice Ginsburg," Verrilli answered. "But again I think that's another issue about where the lens is focused. There have been thousands and thousands and thousands of broadcasts, and the Respondents have identified four in which—over 25 years, in which any nudity has been present."

Again, it's the bogus argument that because the FCC hasn't targeted many broadcasts, there must therefore be some validity to the charges against the ones they have targeted.

But Ginsburg wasn't fooled. She asked Verrilli whether, for instance, if excerpts from the off-Broadway play Hair or the opera Metropolis, both of which are critically-acclaimed works and both of which contain nudity, were played on TV, the FCC would crack down on them as it did on ABC, or whether they would get a pass as the Spielberg movies did? And of course, Verrilli had no real answer.

"I think, Justice Ginsburg, that in a context-based approach, there's not going to be perfect clarity," he again admitted. "We recognize that. But I do think with respect to this broadcast, and that's the question before the Court, whether Fox—excuse me, whether ABC was on fair notice of whether this broadcast would bring them within the rule."

But Justice Anthony Kennedy was confused by the answer.

"But you're saying that there's still a value, an importance, in having a higher standard or different standard for broadcast media on the television," he commented. "Why is that, when there are so many other options, and—and when it's not apparent to many viewers which of the two they're watching?"

Indeed; viewers with cable TV use their channel guides to select which programs they want to view, and often don't pay attention to which network—broadcast or cable—that program is on. That point was driven home later by, of all people, conservative Justice Samuel Alito, who opined, "Well, broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8-track tapes." (It would be nice to think that the comment signifies that Alito thinks this entire case isn't worth considering, but it's more likely that as a conservative, he's just nervous about dealing with sexual subjects and will vote with the conservatives anyway.)

A short discussion followed regarding the efficacy of the V-chip censorship device that's installed in all modern TVs... which somehow sparked Justice Antonin Scalia to put his cards on the table—as if there were any doubt which way he'd vote!

"Sign—sign me up as supporting Justice Kennedy's notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts," Scalia pontificated. "It's a symbolic matter. And if this is—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."

But Ginsburg had a (somewhat garbled) response for that.

"You are saying that the standard can still be symbolic, as Justice Scalia said," she opined. "We want the King's English—for the very children we're talking about when they go on the street, when they—their big brother says something to them, it is—the words that were, the expletives, are in common parlance today. I mean, it is—I think that children—the children are not going to be shocked by them the way they might have been a generation ago."

Right; what kid that isn't home-schooled (and probably quite a few that are) hasn't heard the words "fuck" or "shit" on nearly a daily basis? Verrilli tried to draw a distinction between that reality and whether broadcasting the words (or showing nudity) was "appropriate," but his time was up, and it was on to the Petitioners' attorneys.

First at the rostrum was Carter Phillips, representing Fox Broadcasting, and practically the first thing out of his mouth was, "I'd like to respond initially to some of General Verrilli's general observations. First of all, he talks about indecency as somehow serving as the core of the overall understanding of the regulatory deal that was made here. And it's difficult for me to accept that notion when there was no effort whatsoever to enforce the standard of indecency between 1927 and 1975."

"Well, that's because broadcasts didn't commonly have this sort of—these sorts of words or these sorts of images," responded Chief Justice John Roberts.

"Well, maybe, maybe not. We don't know," Phillips observed. "All we know is that for a period [of] 50 years, nothing happened... The only point I'm trying to make, Chief Justice, is that if you're talking about this as sort of the core understanding between the parties, it simply played a fairly minor role in the process through the bulk of the regulatory period we're talking about."

But when Kagan stated that the FCC's indecency regulatory system "seems to work and it—it seems to be a good thing that there is some safe haven, even if the old technological bases for that safe haven don't exist anymore. So why not just keep it as it is?", Phillips respectfully disagreed, noting that it "worked" in part because the FCC hadn't previously brought indecency complaints of "fleeting expletives" or images against any broadcaster.

"And as we sit here today," Phillips continued, "literally facing thousands and thousands of ginned-up computer-generated complaints that are holding up literally hundreds of TV license renewals, so that the whole system has come to a screeching halt because of the difficulty of trying to resolve these issues. So to say that the system is working well seems to me, at least from the broadcasters' perspective, is to suggest that's just not true."

Phillips was referring to online campaigns by groups like the pro-censorship Parents Television Council, which posted complaint forms on its website and encouraged its members and anyone else it could reach—several other religious right groups picked up the cause and ran with it as well—to fill in their information on the form, and PTC would email it to the FCC. Statistics later showed that the religious groups, though mainly PTC, were responsible for nearly half a million indecency complaints in 2003—and the conservative Family Research Council claims there are still 1.4 million complaints pending! (That's Obama's fault, of course!)

Phillips then stated, in response to a question from Alito, that yes, his client did want to overrule the Supreme Court's decision in Pacifica, which apparently led Alito to try to be helpful by asking whether the high court could invalidate the FCC indecency policy as to TV but not radio? Phillips said they could, "because there are fundamentally different media and there are different protections and the circumstances are different and the Court has recognized that media have to be evaluated individually."

There were several questions by the justices that seemed to make the respondents' case for them, such as when Roberts immediately commented, "But that cuts both ways. People who want to watch broadcasts where these words or expose their children to 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—they are not going to hear the S word, the F word. They are not going to see nudity. So the proliferation of other media it seems to me cuts against you."

"All we are asking for"??? Guess it's clear where Roberts stands on this issue already!

But Phillips was ready with a response.

"Well, it seems to me there are two answers to that," he answered. "First of all the notion that one medium [cable TV] operates in a certain way in the exercise of its First Amendment rights can be used as an explanation for taking away or for restricting the First Amendment rights of another medium [broadcast TV] is flatly inconsistent with what this Court has said across the board in the First Amendment context. You don't balance off one speaker against another and give one favored status and give another unfavored status."

It's true: The FCC can only control what's broadcast, not what's shown or spoken on shows that are cable-only—although many cable shows (like, sadly, The Daily Show and The Colbert Report) self-censor anyway.

But it's unclear whether Roberts simply misunderstood Phillips' statement or was being willfully disingenuous.

"Well, that's your argument there, is that it's not a legitimate objective to have a safe harbor?" Roberts asked.

"Well, you can get a safe harbor, and indeed there are a number of safe harbors that are out there," Phillips noted. "First of all, there are a ton of cable networks that are aimed exclusively at children. There are five, six, eight stations that I guarantee you where you will see none of that language..."

And of course, one can always count on Scalia to push the anti-free expression position.

"I mean, if you want us to be really clear you should ask the FCC to simply outlaw any fleeting use of the F word or the S word, any shots of any nudity in any movie, buttocks included," Scalia stated, echoing a concept that even the government's attorney thought was a bad idea. "[T]hat would give you all of the notice that you need. Why don't you propose that? Boy, that's certain as can be."

"Well, our basic argument would then ... you would be taking away the vagueness argument," Phillips responded, "but that would just bring you back then, Justice Scalia, to the core Pacifica argument and the question of how far can the—how is it permissible to allow the FCC to regulate the broadcast networks on standards that are fundamentally different than cable, the internet and every other medium that exists? I would be perfectly happy if they want to try to adopt those kinds of standards and subject them to the strict scrutiny requirements that this Court applies to every other medium because the truth is those requirements will not withstand scrutiny under those particular standards." [Emphasis added]

Phillips' position seemed to be based on two factors: One was that the whole basis of the Pacifica decision was that the radio (and TV) broadcast spectra were limited, and that therefore, with so few stations for citizens to access, the government had an interest in keeping indecent speech off the air. But in the United States in 2012, there are indeed hundreds of channels to which the 60-plus percent of TV viewers who have cable TV can turn, many of which like ABC Family or Nickelodeon have never shown (and likely never will show) the images or language that forms the basis of this lawsuit. The second factor is simple fairness: How can the government discriminate against broadcast TV (or radio) while allowing cable TV and satellite radio to use nearly any language or image they want? (This is the point at which Alito made his "broadcast TV is living on borrowed time" statement.)

Kennedy chimed in with the query that, "isn't it inevitable that this [fleeting expletives or nudity] will happen?"

"[W]ell, I think it's inevitable regardless that people are going to continue to use language that they would naturally use," Phillips replied. "So yes, I do think you can expect on cable and any other forum in which you have humans speaking that this kind of language will expand. I don't know that it—and it will probably be the case that in some context, particularly live television, which is really what is placed in jeopardy by this, that you will have less live television because your concern is people will continue to use this language."

Phillips was clearly subtly reminding Kennedy of his own dictum in the Alameda Books case, that "a city may not regulate the secondary effects of speech by suppressing the speech itself" and "Though the inference may be inexorable that a city could reduce secondary effects by reducing speech, this is not a permissible strategy. The purpose and effect of a zoning ordinance must be to reduce secondary effects and not to reduce speech."

Phillips then argued essentially that as long as TV and radio have advertisers, they will self-regulate in an effort to please (or at least not offend) those advertisers and their potential customers, but Scalia called him out on that argument.

"What you acknowledge to be the vulgarity of cable suggests otherwise, doesn't it?" he asked.

Phillips backpedaled a bit, opining that, "in general most people who—who rely upon advertising and have to play to a particular audience in order to make their money, it's going to—it's going to obviously be restrained... [T]he burden rests on the Federal Communications Commission and Congress to show that there is a real problem that needs to be solved and that this is narrowly tailored to achieve that."

But Phillips' time was up, and former Solicitor General Seth Waxman, representing ABC, next took the podium—and launched a frontal attack on the FCC's indecency standard.

"When the issue is the content-based regulation of speech, it is the government, not the speaker, that must steer, quote, 'far wide of the prohibited zone'," Waxman began. "That foundational principle is nowhere in evidence in the FCC's current enforcement regime, which not only intrudes into the prohibited zone but also enforces the indecency ban in a starkly inconsistent manner.

"A regime in which government officials decide years after the fact that 7 seconds of rear nudity in this particular episode of NYPD Blue is indecent, but 40 seconds of nudity including full frontal nudity in Catch-22 is not; that expletives in a documentary about blues musicians is indecent, but even more of those expletives in a fictional movie about World War II is not, is constitutionally intolerable," he added.

But count on Roberts to champion the religio-conservative motive behind the FCC's policy.

"[W]hat you have demonstrated I think is that the context matters," Roberts claimed. "People understand that, including children. When they hear a bad word when someone hits their thumb with a hammer, they understand that's different than having an adult stand in normal conversations and use the words. And it seems to me that your position is saying that the government cannot regulate with an understanding of what takes place in the real world. The government's effort is to try to understand the context. That's why you get a different rule in Saving Private Ryan than you get with Paris Hilton and Nicole Richie. And what your argument seems to be is they can't take context into account."

Ri-i-i-ght; to some people, "fuck" and "shit" are "bad words"—except of course when they're uttered in the middle of a war drama because that's the way people speak "in the real world"—which in this case apparently is Steven Spielberg's fictionally recreated WWII battlefield and fictionally recreated factories in Nazi Germany.

But Waxman had a response.

"[Q]uite the contrary. This Court made clear, in particularly Justice Powell's concurrence in Pacifica, that context is all-important. And just look at this case. Despite... decades of denying complaints about televised nudity, the commission chose this case for the first time to sanction nudity on television in a serious drama that had been on for 10 years..."

But Breyer interrupted him to note that "for some unknown reason," ABC ran the show in the 9 o'clock hour in the Midwest.

"[T]his is not some sort of obscure, unknown reason," Waxman replied. "This show was run across the country in the last hour of prime time which happens to be from 9:00 to 10:00 p.m. in the Midwest and Mountain Time zones."

Indeed; that's how broadcast television works: Shows air three hours later on the west coast than the east because of the time difference, but the networks use a different satellite feed so that the shows appear to run at the same advertised time. The only reason the midwest and mountain zones are different is because both of those zones are handled by the same satellite that delivers the east coast feed.

But Breyer seemed blissfully unaware of that fact.

"Because you wanted to make more money from it, I understand that," Breyer concluded. "And maybe people would have been a little bit inconvenienced, but the inconvenience—they made a judgment that looking at this show is not like Private Ryan, it's about sexual awakening; they are showing a part of a nude woman, the viewer is supposed to put himself in the position of the boy who is seeing her, and the whole thing was titillating. Now they might be wrong; there are two sides to that argument; and so I guess what you are arguing is, if I were to say is that a reasonable view—I guess I would have to say it. But you have to say much—you are telling me I have to say much more than that."

"It was not sexual awakening; this was a portrayal in the context of a story line about the difficulties and embarrassments of blended families," Waxman disagreed. "This was an exploration of one of the things that happens, which is a little boy stumbles in and watches a woman in the quotidian activity of preparing her morning shower. In any event, the commission for years had been adjudicating complaints about nudity, and ... It is simply untrue—it is simply untrue that this had never occurred before. NYPD Blue itself was in its tenth season. The very first episode, which caused a lot of media attention, included a nude scene of love making. It was the subject of any number of complaints..."

Breyer tried to palm off the fact that one instance of (TV-style) nudity was busted while another was given a pass as an argument for allowing the FCC discretion in such cases, but as had already been noted, the FCC spent over 50 years ignoring such instances... until the ultra-conservative George W. Bush administration took office. Also, in keeping with the high court's general objectives, if Fox Broadcasting and ABC could be adjudicated without invalidating the underlying FCC rules, that would be the best outcome, in the court's view.

But Waxman was having none of it.

"This broadcast—and particularly in light of the ubiquitous V-Chip, this broadcast is not actionably indecent under Pacifica, number one," he stated. "With respect to notice or the vagueness of the application to this show, clearly this was a shot out of the blue. The commission cannot identify—I challenge the commission to identify a single decision of the commission issued before this was broadcast in 2003 in which it had sanctioned any display of nudity, and I'm going all the way back to 1978.... Let me explain the ones that I know of. 1978, the commission's decision in WGBH, which complained about scenes of explicit nudity in Monty Python's Flying Circus: Denied. Catch-22, 40 seconds of nudity, including 10 seconds of full frontal female nudity: Denied. The four or five decisions that we cite—that we discuss on page 18 of our brief, and that are appended to the merits brief of the ABC affiliates—I can't remember whether it's 12 or 16, but more than a dozen episodes of NYPD Blue itself that included displays—graphic displays of nudity during the prior nine seasons. Complained about and not adjudicated...

"I mean, you know, I've cited the ones that are the subject of commission decisions," Waxman continued shortly. "I haven't cited the ones—I haven't attempted to hypothesize about all the other instances, but let's just look at what's at stake here. Because the issue, Justice Breyer, is not just notice to ABC in this case; the question is whether the standards—the commission's standards as it's currently applying them are so vague and capacious that they not only permit arbitrary action, but they are engaging in arbitrary action."

Of course, that's the nub of the entire case: A government agency, accountable to no one, using impossibly vague standards which they have no problem changing in mid-debate and which they use to fine broadcasters millions of dollars depending on which way the political winds are blowing and which pressure groups have their attention.

But then Waxman made a point that should make it perfectly clear to the justices what's at issue here.

"Right now, as—as Mr. Phillips suggested, the commission has pending before it, which it has not denied for years, complaints about the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks," Waxman pointed out. "It—it has refused to say that Catch-22—it's Catch-22—Right over here, Justice Scalia [pointing to the buttocks]. Well, there's a bare buttock there, and there's a bare buttock here. And there may be more that I hadn't seen. But frankly, I had never focused on it before. But the point [is] ... could ABC or anybody else rebroadcast the Roots series? Could it rebroadcast Catch-22, which the commission is now here saying, oh, no, no, no, that was just our staff, that wasn't us. In the Saving Private Ryan context, where the commission did say as a commission: Not actionably indecent?"

But when Breyer suggested that Waxman was arguing that there should be no indecency rule whatsoever, Waxman disagreed.

"[O]ur arbitrariness argument is that we now have a standard that employs nonexclusive factors that use capacious, vague words that can be balanced any way the commission wants to without explanation for what all the factors are," he summarized. "Let me just outline what I think [are] four different things that could ameliorate the vagueness of the current regime. First of all, the FCC could revert back to it's [sic] quote 'emphatically narrow enforcement regime,' which acknowledged, one, that it had to defer to reasonable judgments of the broadcasters, and not exercise the—an editorial eye looking at camera angles, whether something was or wasn't necessary to the message... The second thing they could do is make this three-factor test—or however many factors it is—a test, not just a nonexclusive list of an infinite number of factors that could or couldn't be balanced in any way the commission wants to. Even if it wants to leave it as factors—and this is number 3—it could at least identify what they are, and apply them consistency—consistently through adjudication that explains why one over-balances the other, which it certainly did not do in this case. And it also could clean up the actual form of the words that it uses, referring, for example, to sexually explicit or excretory activities."

Waxman's time was up, but Verrilli had reserved a few minutes for rebuttal—and it was quickly clear that the magazine of the gun he'd been using to shoot himself in the foot was far from empty.

"First with respect to the notion of self restraint on the part of broadcasters, I think a little history is in order here," he began. "The commission started with the rule that came out of Pacifica. What it faced in the 1980s, with that being the outer bound of the commission's authority, was the explosion of the shock jock phenomenon, Howard Stern and Bubba the Love Sponge and the rest of it which didn't use any of the seven words in the Carlin monologue, but which was highly vile and lewd, and it required the commission to make a judgment. Now, that was all advertising sponsored broadcast. And so I do think the risk of the race to the bottom is real, and I think history is showing it."

Leaving aside the fact that nothing in the First Amendment refers to the right of free speech as having a "bottom," Verrilli had just made the respondents' argument for them: The FCC knew of broadcasted language that was "highly vile and lewd"—the definition of "lewd," according to the Oxford American Dictionary, being "indecent; treating sexual matters in a vulgar way"—but what they did to stop it—levying over $2.3 million in (bullshit) fines over 14 years to various radio networks which broadcast Stern—resulted in the performer leaving broadcast radio altogether for Sirius XM satellite radio. Talk about "reducing the secondary effects by reducing speech"!

Fortunately, Kagan brought the argument back to the main issue.

"General, I think that the—the networks really are saying: Well, even if some regulation is permissible, the kind of regulation that the FCC has done here is regulation that gives it complete discretion as to what kind of speech to go after and what not to go after; that it has not tied itself in any way to any kinds of standards," she recounted. "And, it's, you know, evident in the notion that this—the way that this policy seems to work, it's like nobody can use dirty words or nudity except for Steven Spielberg and that there's a lot of room here for FCC enforcement on the basis of what speech they think is kind of nice and proper and good. And so that's a serious First Amendment issue."

Not only did Verrilli disagree, he actually argued to expand the amount of speech the FCC can target!

After reiterating his argument that the FCC fines were okay because, "We are talking about a tiny, tiny number of the broadcasts that occur in a month, much less a year, much less a decade," and that "if one looks at the corpus of decisions that the commission has made about what is indecent and what isn't, I think one can see with respect to the large majority of them, the vast majority of them that it is clear which side of the line something fell on. Yes, there is isn't perfect clarity, there are going to be some hard cases, but they really have identified where is, in the great scheme of things, a trivial number of hard cases," he dropped his bombshell:

"I do think there is a significant problem with thinking about Pacifica as the outer bound of the commission's authority under the First Amendment in addition to the shock jock problem," he stated.

"Even though the Justices involved said this is a narrow decision, both Justice Stevens and Justice Powell?" Ginsburg asked.

"Yes," Verrilli replied, "and, Justice Ginsburg, that is true and the principles the commission continues to apply are narrow principles. This is not—this is not something that covers a vast array of speech on broadcast. It's a tiny fraction. And so—And I do think if you are talking about Pacifica as the outer bound, the consequences of the shock jocks are fine; the Super Bowl half time episode with Janet Jackson is fine. You can have as many of these seven second episodes of NYPD Blue as you want. That's all fine. In fact, anything that isn't at that extreme level..."

"But on the other side, you'd better be careful about calling certain people, certain artists to be interviewed because we know it's unscripted," Ginsburg pointed out. "They are going to risk that they are going to say something they shouldn't say."

"A couple answers there," Verrilli responded. "One is the delaying bleeping technology, Justice Ginsburg, and the other one is that there is a scienter ["guilty knowledge"] requirement under the commission's enforcement authority here. And so in that situation, it seems highly unlikely you had—would have the requisite scienter that could lead to a forfeiture."

And of course, if ABC couldn't tell from the FCC rules that showing Charlotte Ross's ass on TV (as it had shown several other asses in the past) was actionable under those rules, it clearly didn't have the scienter necessary to sustain the fines!

But trust "Nino" Scalia to come up with the real answer:

"Maybe the third [answer] is, you shouldn't interview these people," he opined.

Right! The less speech, the less chance some big government agency is going to levy huge fines against you!

Justice Clarence Thomas, who almost never asks questions during argument, followed that path here, but it should be remembered that during Fox Broadcasting's first appearance before the high court in this case, it was Thomas who thought that the Second Circuit should have tackled the First Amendment issues in their original decision, so there's the possibility that the justice will cast his vote with the respondent TV networks.

Beyond that, it's still a toss-up which way the court will vote. Of course, Roberts and Scalia, who once described TV and movie celebrities as "foul-mouthed glitterati from Hollywood," will vote to uphold the existing indecency rules and find that the FCC properly applied them in these cases, and all things considered, Alito is likely to vote with them. Ginsburg and Kagan, as dyed-in-the-wool First Amendment supporters, will surely vote with the respondents; Kennedy, if he takes Phillips' allusions to his Alameda Books concurrence to heart, should vote for the networks as well; and Breyer, if he can get past the idea that the decision will have earthshaking implications for American culture, may do so as well. Justice Sonia Sotomayor took no part in the argument, possibly because she was a judge on the Second Circuit when the Fox Broadcasting and ABC cases first came before that court, even though she was not part of either panel that rendered decisions on the cases.

In other words, it's looking like the high court may stalemate with a 4-4 decision, which would leave the favorable Second Circuit decisions striking down the FCC's indecency rules in the cases intact.

If that's the case, at least the Supreme Court won't have to paint over the cherubs in the friezes that line its chamber's four walls!

UPDATE: In other First Amendment news, an en banc panel of the Third Circuit Court of Appeals has denied, by a vote of 9-3, the FCC's motion to revisit the 2008 decision by a three-judge panel of that court that the split-second Janet Jackson tit reveal during the 2004 Super Bowl halftime show was not indecent, thus invalidating the $550,000 fine the FCC attempted to levy on the network. The FCC can now appeal that decision to the U.S. Supreme Court—and whether the FCC decides to do so may hinge largely on the outcome of the Fox and ABC cases. Opinion(s) in those cases is/are expected by the end of June.






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Mark Kernes

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