Solicitor General Donald Verrilli Jr. made a strong appeal to the Supreme Court on Tuesday to uphold the government’s rules against broadcast indecency, asserting the need to preserve a television and radio “safe haven” devoid of foul language and nudity amidst a proliferation of new and coarser media.
Whether his plea will save the rules from being overturned on First Amendment grounds is uncertain, but Verrilli did seem to stave off a full-scale review of precedents that have been used to justify regulating broadcasters differently from other media.
Verrilli made his pitch to the Court as it heard arguments in FCC v. Fox Television Stations, the latest round in a long dispute between on-air broadcasters and the Federal Communications Commission over what the media view as vague and unconstitutional policies against indecent language and nudity that have left them uncertain about what can and cannot be aired. Networks argue there is no longer any justification for imposing rules on broadcast television that would be unconstitutional if aimed at cable or satellite television or the Internet.
“It does make a difference to preserve a safe haven where if parents want to put their kids down in front of the television at 8 p.m., they know that there’s a segment of what’s available where they’re not going to have to worry about whether the kids are going to get bombarded with curse words or nudity,” Verrilli told the justices. In his trademark soft-spoken style of delivery, Verrilli also said such restrictions are part of the longstanding bargain broadcasters make with the government in exchange for enormously profitable free access to public airwaves.
Justice Anthony Kennedy responded positively, stating that “having a higher standard or different standard for broadcast media” stands as “an important symbol for our society that we aspire to a culture that’s not vulgar in a very small segment.”
Justice Antonin Scalia soon chimed in, “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.”
Chief Justice John Roberts, father of two young children, also appeared to embrace this almost nostalgic argument with a revealing slip in the use of pronouns: “All we are asking for – what the government is asking for – is a few channels where … they are not going to hear the S word, the F word. They are not going to see nudity.”
Though he may have been speaking facetiously, Justice Samuel Alito Jr. made a startling suggestion to the lawyers for the broadcasters that they should allow the FCC rules to “die a natural death.” Broadcast television, he said, is “living on borrowed time. It is not long before it goes the way of vinyl records and 8-track tapes.” A stunned Carter Phillips of Sidley Austin, who represented Fox, said, “I’m sure my client is not thrilled to have you say that.”
Those comments from four justices would suggest momentum for a conservative majority upholding the FCC rules, except for two factors. First, conservative Justice Clarence Thomas, who was characteristically silent during the arguments, is not a certain ally in the case; he has voiced doubts in past cases about whether broadcast media should be regulated more severely than other media.
Second, Justice Sonia Sotomayor was recused, likely because she was a judge on the U.S. Court of Appeals for the 2nd Circuit when that court considered the Fox case. With only eight justices voting, a 4-4 tie would mean that the 2nd Circuit decision striking down the regulations would stand. In other words, the government needs five of eight votes to overturn the 2nd Circuit and uphold the FCC rules.
At least three justices seemed critical of the Bush-era crackdown on nudity and offensive language. The specific instances before the Court Tuesday involved “fleeting expletives” used by Cher and Nicole Richie during live broadcasts of music award shows, as well as an NYPD Blue episode that contained a brief partial shot of a nude woman from behind.
Justice Ruth Bader Ginsburg appeared most sympathetic to the networks, asserting that the words that Fox was fined for are “in common parlance today” among children. “The children are not going to be shocked by them the way they might have been a generation ago.”
Justice Elena Kagan also seemed perturbed by the vagueness of the standards, under which the networks were fined for nudity and profanity — but there was no punishment for airing movies with the same attributes, such as Saving Private Ryan and Schindler’s List. “The way that this policy seems to work, it’s like nobody can use dirty words or nudity except for Steven Spielberg,” she said.
Justice Stephen Breyer also seemed bothered by the vagueness of the standards, suggesting at one point that the instances before the Court should not have been cause for punishment of the networks.
The lively hour of arguments had several humorous moments. At one point Seth Waxman of Wilmer Cutler Pickering Hale and Dorr, representing ABC, recited several instances in which the FCC was investigating complaints against the networks for violating the rules. One was triggered by the most recent opening ceremonies for the Olympics, which Waxman said, “included a statue very much like some of the statutes that are here in this courtroom, that had bare breasts and buttocks.
As he spoke, Waxman pointed to the marble friezes high above his head, which display sculpted images of historical and allegorical legal figures. Several justices followed his lead to look toward the ceiling. “Over here, Justice Scalia,” Waxman said helpfully. “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.”
To which Scalia replied, “Me neither.” (To view the friezes yourself, click here and here.)
Tony Mauro can be contacted at email@example.com.