Posted January 10, 2012
By Paul A. Cicelski
Having just returned from watching oral arguments at the Supreme Court in the highly anticipated case Federal Communications Commission v. Fox Television Stations, I can tell you that the case is living up to its billing as one of the more interesting matters before the Court. In it, the Court will finally have the opportunity to address the constitutionality of the FCC's current interpretation of its indecency restrictions on television and radio stations. Specifically, the Court is considering whether the Second Circuit was correct in deciding that the FCC's indecency ban is unconstitutional because it violates the First Amendment by being so vague and amorphous as to deprive broadcasters of clear notice as to what is and isn't permissible.
The underpinnings of the FCC's indecency regulation come from the now-famous George Carlin (RIP) "Seven Dirty Words" monologue. During the monologue, Carlin used, among other words, the "F-word" and the "S-word" repeatedly, and verbally presented a number of sexual and excretory images. The monologue was aired by a radio station, a complaint was filed, and the FCC ultimately determined that the broadcast was prohibited indecency. The case eventually found its way to the Supreme Court as the 1978 Pacifica case where, in a narrow 5-4 ruling, the FCC's indecency finding survived a First Amendment challenge. The Court stated that the FCC's decision was constitutional largely because "broadcasting is uniquely accessible to children."
For 25 or so years following the Pacifica case, the FCC exercised a light touch in enforcing its indecency ban, as evidenced by its statement that "speech that is indecent must involve more than an isolated use of an offensive word." However, in 2004, the FCC changed its longstanding policy on the use of isolated expletives, finding that a broadcast could be indecent even when the use of an expletive was not repeated or a literal description of sexual activities was not included.
As previously discussed by Scott Flick here and here, the FCC's effort to expand the definition of actionable indecency is at the heart of the case now before the Supreme Court. That case involves three separate incidents that were broadcast on TV between 2002 and 2003, each of which were found to be indecent by the FCC. The first two, the "fleeting expletives" incidents, occurred on Fox during the Billboard Music Awards when Cher used the "F-word", and then Nicole Richie used the "S-word" and "F-word" a year later on the same program.
The third broadcast at the center of the case involved a 2003 ABC broadcast of an episode of NYPD Blue that included the display of a woman's buttocks. In both the Fox and ABC cases, the Second Circuit concluded that the FCC's current indecency enforcement policy is "unconstitutional because it is impermissibly vague" since broadcasters do not have fair notice of "what is prohibited so that [they] may act accordingly."
During today's oral arguments, there was a great deal of lively banter between the Justices and the attorneys on both sides of the debate. The U.S. Solicitor General, on behalf of the government, argued that broadcast stations must comply with the FCC's indecency regulations as the price of holding a broadcast license and the privilege of "free and exclusive use of public spectrum." Justice Kagan noted, however, that the government's "contract theory" can only go so far when it comes to the First Amendment.
In response to the Solicitor General's claim that television today is as pervasive as it has ever been, Justice Ginsburg pointed out that the major complaint the broadcasters have is that the "censor" here, the FCC, can act arbitrarily by saying it is okay to broadcast otherwise indecent language or scenes during Schindler's List or Saving Private Ryan, but that it is not OK to air such material during an episode of NYPD Blue. Later, Justice Kagan joked that it seems like nobody "can use dirty words except for Steven Spielberg." While intended as a joke, the Justice would likely not be surprised that communications lawyers do indeed refer to the "Spielberg exception" in reviewing content before it airs.
In challenging the FCC's regulations, counsel for the broadcasters noted that the FCC's indecency policies had been working fine until the FCC "wildly changed their approach" in 2004 and that the current context-based approach is impermissibly vague. Of particular interest given that the pending cases all involve television broadcasts, when Justice Alito asked whether the broadcasters would accept the Supreme Court overruling Pacifica for purposes of television only and not for radio, the response in the courtroom appeared to be "yes". Both Chief Justice Roberts and Justice Scalia appeared skeptical of the broadcasters' arguments, with Chief Justice Roberts stating that "we, the government" only want to regulate "a few channels" and Justice Scalia remarking that the "government can require a modicum of values".
While you can only read so much into oral arguments, the huge crowd and the media circus I saw when leaving the Supreme Court underscore the interest in, and the importance of, the Court's ultimate decision in this case. Aside from the fact that Justice Sotamayor is recused from the case, and two Justices that voted against the FCC at an earlier stage of the case have since left the Court, the drama in this case has been dramatically increased given the strange bedfellows it could create among liberal and conservative Justices on the Court. Given that Justice Thomas is on record as criticizing the "deep intrusion in the First Amendment right of broadcasters" created by the FCC's indecency policies, it is not out of the realm of possibility to see Justice Thomas siding with Justices Breyer, Ginsburg, and Kagan (and maybe even Justice Kennedy) in finding that the FCC's indecency policy is unconstitutional.
However, that result is hardly a given. We have no idea how Justice Kagan will rule given her short time on the Court, nor do we know yet whether Chief Justice Robert's antipathy towards governmental paternalism -- evidenced in the Court's decision this past summer overturning a California law prohibiting the sale of violent video games to minors -- might find voice in this case as well. While many issues polarize people based upon their political perspective, fans of the First Amendment tend to be found all along the political spectrum. How the case is framed is therefore critically important. Is this a case about protecting children from ostensibly harmful content, or is this a case about making broadcast television fit only for children during the hours when most adults watch it? On a less philosophical and more pragmatic level, what are the First Amendment implications of making broadcasters have to guess what content the government will conclude is inappropriate for their audiences? Broadcasters are hoping the the Court's decision in this case will bring an end to those guessing games.