Lawyer makes startling argument in Supreme Court hearing on FCC

Not often can one watch a former solicitor general of the United States directing venerable Supreme Court justices to observe naked posteriors of the marble statues that stand sentinel at the highest court in the land.

“There’s a bare buttocks there,” Washington lawyer Seth Waxman advised the startled justices during his oral argument on Tuesday.

“And there’s a bare buttocks here,” he said, pivoting and pointing across the ornate courtroom.

The black-robed justices obliged the lawyer by following his extended finger to a sculptor’s rendition of gluteus maximus.

This was no voyeuristic dalliance. Mr. Waxman was hoping to convince the high court that the Federal Communications Commission had gone haywire in threatening to sanction broadcast television stations for the fleeting appearance of a naked body part or of a blurted expletive during prime-time television.

He told the justices that the FCC’s new beefed-up effort to stamp out televised indecency was so vague and ill-defined that it was difficult to know what was legal and what wasn’t.

Waxman, solicitor general under President Bill Clinton, said the FCC had even received complaints about television coverage of the opening ceremony of the Olympics. The cameras had apparently panned past statues revealing breasts and buttocks.

That’s when Waxman turned his gaze upward to point out similar outrages right there in the courtroom.

Earlier, the current solicitor general, Donald Verrilli, argued on behalf of the Obama administration that the court should uphold the FCC’s tougher enforcement effort.

He conceded that the FCC’s new rule lacked “perfect clarity.” But short of banning certain words in all contexts, some amount of leeway was necessary to achieve a balanced approach acknowledging free speech requirements, he said.

The FCC "is trying to make reasonable accommodations for First Amendment values,” Mr. Verrilli said.

FCC gets tough

Broadcasting has been regulated in the US since the 1920s. In 1978, the Supreme Court upheld the power of the FCC to ban broadcasts that it deemed “indecent.” But over the next 25 years, the agency only rarely attempted to enforce those provisions.

Broadcasters were on notice that the government was watching, but the FCC’s approach was more permissive and forgiving than punitive.

That changed in 2004, when the FCC began to counter what it viewed as an increasingly permissive and toxic media environment with the growth of cable and satellite television services and free-ranging content on the Internet.

In a direct assault on the FCC effort, broadcast companies are now asking the Supreme Court to overrule its 1978 decision and, in effect, deregulate broadcast television and radio.

They argue that the FCC standards are obsolete given the rise of alternative media with more permissive content.

The Obama administration disagrees.

Blame it on Bono

Verrilli said FCC enforcement is essential to monitor radio programming. In addition, he said the FCC rules could help maintain broadcast television as a haven where parents would not have to worry about their children being bombarded with sexually explicit images and foul language.

The tough new standards at the FCC came after complaints about a series of broadcasts involving celebrities using foul language during televised award shows. Cher used the “f-word" at the 2002 Billboard Music Awards. Bono used the "f-word" at the 2003 Golden Globe Awards. And Nicole Richie used both the “f-word" and the “s-word" during an appearance at the 2003 Billboard Music Awards.

The FCC also objected to a 2003 episode of Fox Television's "NYPD Blue" that featured a seven-second view of a woman’s exposed buttocks and a side view of her breast as she prepared to take a shower.

Under the FCC’s policy, broadcasters are expected to provide programming suitable for family viewing from 6 a.m. to 10 p.m., when children may be watching.

The music award shows all aired during prime time. The "NYPD Blue" program aired at 10 p.m. on the East and West Coasts, but aired in prime time at 9 p.m. in the Midwest. That’s the basis of the FCC’s complaint, that it should have aired that episode one hour later.

This is not the first time the Supreme Court has considered the FCC’s indecency policy. In 2009, the Supreme Court reversed a New York appeals court’s decision invalidating the rule based on the way the policy was adopted. On remand, the appeals court again struck down the policy, this time on grounds that it was unconstitutionally vague.

Only eight justices will decide the case. Justice Sonia Sotomayor stepped aside because she was on the appeals court panel that considered the case at an earlier stage.

Double standard?

One frequent complaint about the FCC policy is how the agency can justify banning the 7-second bare buttocks on "NYPD Blue" and the use of expletives in awards shows, yet allow the prime-time broadcast of "Schindler’s List" (with naked women in a detention camp) and "Saving Private Ryan" (with frequent use of foul language).

“It’s like nobody can use dirty words or nudity except Steven Spielberg,” Justice Elena Kagan observed. “That’s a serious First Amendment issue,” she said.

“I disagree,” said Verrilli, who replaced Kagan as the Obama administration’s solicitor general. “We are talking about a tiny, tiny number of the broadcasts that occur.”

Verrilli said it was “clear which side of the line something fell on,” when examining FCC indecency decisions. He conceded that there would be some “hard cases,” but that their number would be trivial.

Justice Anthony Kennedy wondered if the FCC policy were struck down whether it might send a message to foul-mouthed celebrities that television was suddenly a safe medium for swearing. “Isn’t it inevitable that this will happen?” he asked.

Washington lawyer Carter Phillips, representing Fox Television, said foul language could be bleeped from live programs. In addition, he said advertisers and viewers insist on a certain level of restraint. “You don’t need the Federal Communications Commission any longer under these circumstances,” he said.

Justice Antonin Scalia disagreed. “What you acknowledge to be the vulgarity of cable suggests otherwise, doesn’t it?” he asked.

Mr. Phillips said the FCC’s tough policy had thrown the broadcast industry into turmoil, raising threats of fines and license revocation, and chilling creativity in programming.

“As we sit here today, [we are] 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,” he said.

The case is FCC v. Fox Television (10-1293). A decision is expected by late June.