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The Supreme Court doesn’t televise its proceedings. But if the high court allowed cameras in the courtroom, it’ll be many months before we’ll know whether a broadcast network would ever risk providing live coverage of today’s indecency hearings with no fear of getting fined by the FCC.
Today, eight justices (minus Sonia Sotomayor, who recused herself) heard arguments about the FCC’s constitutional allowances to police indecency on public broadcasting networks. The hearing was relatively clean, which might disappoint folks looking for good old’ fashion cussin’ at the Supreme Court, but there was some fleeting instances of nudity. Here’s our uncensored look at what happened.
U.S. Solicitor General Donald Verrilli represented the government’s side in the debate, and in opening remarks argued that the petitioners like Fox Broadcasting have “benefited enormously from their free and exclusive use of the public spectrum,” but as a condition of their licenses, they needed to “refrain from broadcasting indecent material when children are most likely to be in the audience.”
Justice Elena Kagan was the first to interrupt, framing acceptance of a broadcast TV license almost as if it was a pact to participate in sado-masochism:
“…If the idea is just, we gave them something, now they have to do whatever we say, you wouldn’t accept that. So the question is why is this condition appropriate when many other conditions would not be appropriate?”
Verrilli responded by saying that indecency regulation has been a “defining feature” since the 1920s, but that now broadcasters want to overturn the standards that were previously recognized by the Supreme Court in the Pacifica case.
Justice Ruth Bader Ginsberg said she’s seen the briefs — the legal ones — and wants to know why it’s appropriate that someone in the government gets to say that nudity in Schindler’s List is better than nudity on NYPD Blue:
“I do think that is the major objection, that we have a government agency that is going to make decisions about when nudity is okay and when it isn’t.”
Verrilli retorted that the import of the FCC’s regulations is pretty clear when seen as a whole, and only a “miniscule fraction” of cases raise the question over whether the indecency standards are arbitrary or inconsistent.
Over the next few minutes, Kagan and Ginsburg double-teamed Verrilli on the standards, and as usual in this types of cases, the justices threw out all sorts of hypotheticals. Ginsberg got Verrilli to trip on a question of what would happen if a broadcaster wanted to show an opera of Metropolis where the woman is seen nude entering a bathtub.
As Hollywood execs wince at the thought of airing an opera on network TV, Verrilli admited “that in a context-based approach, there’s not going to be perfect clarity.”
Justice Anthony Kennedy chimed in and said he understands there is value to having different standards when it comes to particular segments of the media. He lead a quick discussion about the role of the V-Chip in policing indecency, and Verrilli told the justices that (1) even a 10-year-old knows how to disable a chip; and (2) it wouldn’t have caught Nicole Richie uttering “fuck” and “shit” at the Billboard Music Awards in 2003.
Justice Antonin Scalia, who authored the 2009 opinion that upheld the FCC’s ban on fleeting indecency, then signaled that he hasn’t really changed his position in the intervening time:
“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. It’s a symbolic matter…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.”
Carter G. Phillips represented the broadcast network respondents in the case. He began by noting that there was no effort to enforce decency from 1927 to 1975, which caused Justice John Roberts to cough out that no broadcast had rough language during this time.
Phillips responded, “Well, maybe, maybe not.”
Frankly, my dear, he couldn’t give a damn.
Kagan then decided to play devil’s advocate:
“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 answered by saying that broadcasters haven’t given up their rights under the First Amendment, and that the FCC has become dysfunctional since 2004 as TV license renewals are being held up by “thousands and thousands of ginned-up computer-generated complaints.”
Then, Justice Samuel Alito asked the most direct question possible: “Well, you want us to overrule a decision of this Court, Pacifica?”
“Yes, Justice,” said Phillips with no stare decisis modesty whatsoever.
The two then debated what ramifications that would hold, from what’s heard on radio to what’s seen on television. Alito asked:
“If we rule in your favor on First Amendment grounds, what will people who watch Fox be seeing between 6:00 a.m. and 10:00 p.m.? Are they going to be seeing a lot of people parading around in the nude and a stream of expletives?”
Phillips held strong. He said that one medium can’t be held to have more First Amendment rights than another and that the FCC isn’t the only thing holding Fox executives back from parading nude women, screaming, “Fuck, Fuck, Fuck.” After all, networks also have to respond to pressures from advertisers and audiences.
Kennedy wasn’t convinced, believing that an “inevitable consequence” of overturning Pacifica will lead to cursing celebrities.
Phillips said that networks will continue an attempt to bleep it out, but he said that thanks to the proliferation of cable and other mediums, “this kind of language will expand.”
Seth Waxman also got a chance to speak up on behalf of respondents, targeting the government powers to make “content-based regulation of speech.” He said government often fails when it gets into the business of trying to understand context, as it purportedly did when it fined ABC for showing fleeting nudity on NYPD Blue.
“Right now, the commission has pending before it… 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,” he told the Supreme Court.
Waxman then pointed around the room. “There’s a bare buttock there and there’s a bare buttock here.”
As the crowd snickered, Scalia admitted that he hadn’t noticed it before now.
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