Supreme Court Argument on Indecency Focuses on Procedure

Garre asked the high court to overturn a 2007 ruling by the 2nd U.S. Circuit Court of Appeals in New York that the FCC violated the Administrative Procedure Act by failing to give adequate notice of the change (CD June 5/07 p1). Justice Ruth Bader Ginsburg said the 2nd Circuit gave the FCC the chance to explain what it did, as the FCC had asked. Garre replied that any finding that FCC policy was “arbitrary and capricious” didn’t square with the leeway that the courts say regulators are owed under certain circumstances. “This court has never invalidated a change in position.”

Ginsburg was skeptical of FCC findings that swearing in the film Saving Private Ryan wasn’t indecent but that cursing in a documentary on jazz musicians was. “There seems to be no rhyme or reason for some of the decisions the commission has made,” she said. Chief Justice John Roberts asked Garre whether Nicole Richie’s and Cher’s utterances of “shit” and “fuck” on 2002 and 2003 Fox broadcasts of the Billboard award shows, judged indecent by the FCC, would be considered indecent on a news program. Garre said they wouldn’t. Roberts and others in court didn’t use the actual swearwords.

Justice John Paul Stevens asked Garre if words like “fuck” are sexually suggestive regardless of meaning. Garre replied that the word can be non-literal, and said later that such words are among the “most vulgar” in the English language. Stevens asked if spectrum scarcity figured in efforts by the FCC to subject broadcasting but not other forms of media to indecency rules. The medium’s “pervasiveness” gives the FCC regulatory entree, Garre said. “Most Americans still get their information and entertainment from broadcast TV,” Garre had said earlier. “Broadcast TV is still broadcast in a way that invades the home.”

Justice Stephen Breyer had several questions for Garre on broadcasters’ use of tape delay to mask curses before they could be aired. “Whenever they cover anything live, they have to have some kind of tape system?” he asked. “What is the state of the art?” Garre replied that broadcasts use delay, but only one person was “working the bleeping machine” when Cher and Richie cursed. Spectators laughed. Justice Antonin Scalia asked whether it’s appropriate for the commission to take into account the use of foul language in humor. “The bawdy jokes are okay they're really good?” That also brought laughs.

Phillips faced tough questions, including from Roberts, who attacked his arguments that the FCC changed policy without advance notice to industry. “Why do you think the f- word has shocking value?” Roberts asked. “Because it’s associated with sexual or excretory activity.” But the Fox attorney said curses such as the FCC found indecent “had been used routinely.” The FCC indecency order didn’t explain how swearing alluded to sex or excretion, said Phillips.

Justice David Souter asked Phillips about the import of his contentions for the high court. The lawyer said FCC policy created a constitutional threat to the media industry, which is “inherently a First Amendment problem.” Scalia said Phillips first should have taken some of his complaints to the lower court. Phillips said that the indecency law is a criminal statute and the commission lacks broad authority. “This is not a statute that the commission has the responsibility to enforce,” he said. Roberts replied that such an argument “simply gets you in the door.”

“The context makes all the difference in the world” when the FCC determines swearing to be indecent, the chief justice said. People curse often, but that “doesn’t mean you're out of the woods altogether,” he added. Scalia said some people like to curse, asking Phillips whether “your clients had anything to do with that.” Use of foul language denotes a “coarsening of manners,” Scalia said. People have become “more tolerant” of such language, Phillips said, noting that when Pacifica was decided, parents didn’t have access to V- chips to filter out objectionable programming. V-chips are “a less restrictive alternative to the one we have on the table,” Phillips added. The NAB made a “compelling argument” that all broadcasters would face added costs by having to run tape delays for all live events, the attorney said.

Stevens is the only justice remaining of the justices serving when the court issued its last major broadcast indecency ruling, FCC v. Pacifica, in 1978. He was in the 5- 4 majority that upheld commission power to fine stations for airing curses, saying imposition of such penalties didn’t violate the First Amendment. Ginsburg noted Tuesday that the Pacifica ruling predates the Internet. “This whole argument has a certain air of futility,” she said later. “The issue before us is ignoring the big elephant in the room.” Garre said the 2nd Circuit “made clear” that it wasn’t deciding the case on constitutional grounds, and even a dissent by Judge Pierre Leval didn’t mention the Constitution.

Because the justices had so few constitutional questions, participants on both sides told us a narrow ruling on procedural grounds seems likely. “It does seem apparent that any decision that’s made is going to turn on administrative grounds,” said Dan Isett, policy director of the Parents TV Council, whose members filed many complaints about the Billboard shows. “If that’s the case, I think that bodes well for those of us who think that broadcasters still have a responsibility to Pacifica.”

The Fox case probably won’t be decided on constitutional grounds, said Prof. Angela Campbell of the Georgetown University Law Center, who’s researching Pacifica and filed a brief for the American Academy of Pediatrics in Fox. Progress & Freedom Foundation fellow Adam Thierer, who believes the FCC overstepped its bounds in Fox, agrees that an APA-based ruling is likely, he said. “It would be a good time to invest in tape-delay equipment,” he said. President Andrew Schwartzman of the Media Access Project, representing the Center for Creative Voices in Fox, said the high court is unlikely to issue a ruling in 2008, but it will decide before its current term ends in June.