Supreme Court May Uphold FCC Indecency Policy, Or Reverse on Narrow Grounds

Questions about free speech posed by judges appointed by Democratic and Republican presidents often invoked Pacifica, without showing a clear inclination to reverse that 1978 ruling. Broadcast lawyers who watched oral argument told us that a narrow ruling by the court seems likely. They said the high court may decide that the 2nd U.S. Circuit Court of Appeals in New York was correct to rule that the fleeting indecency policy violates the First Amendment. Or they could rule the FCC was right. Either way, the justices don’t seem inclined to rule that Pacifica has no role anymore, as some in the TV industry hoped, the lawyers said. “If you're a broadcaster, you can’t feel good coming out” of the hearing, said First Amendment and broadcast lawyer Kevin Goldberg of Fletcher Heald.

About 90 percent of U.S. households get pay TV, and with it cable channels that face no indecency rules, said justices including Samuel Alito and Elena Kagan. Kagan and Ruth Ginsburg asked several questions that seemed to have a tilt against fleeting indecency enforcement. Justice Antonin Scalia was among those who at times seemed to want to preserve over-the-air broadcasts as a place on TV devoid of swearing or nudity, while Chief Justice John Roberts also lent credence to that idea. “Sign me up for supporting that as a notion that has a symbolic value,” Scalia said. Noting the “800 channels where we can go for” cursing and nudity, “all we're asking for” is a few channels without that content, Roberts said of the government’s case.

Justice Anthony Kennedy also pointed to the number of pay-TV subscribers, who he said can’t tell the difference between a cable and a broadcast channel. “It’s not apparent to many viewers which one they're watching,” so why is the distinction important in the case at hand, he asked. U.S. Solicitor General Don Verrilli cited the first Fox case, in which the high court in 2009 upheld the commission on administrative grounds and sent the case back again to the 2nd Circuit for consideration on the constitutional merits. Fox I “goes a long way to providing an answer” that “yes, it does make a difference to preserve a safe harbor” for non-obscene TV, he said. Kennedy noted availability of the V chip to block kids from watching shows made for more mature audiences. V chips don’t work as intended, and broadcasters “are in a different position” from cable channels “by virtue of the fact that they have a license from the government” that comes with an obligation to create a safe haven, Verrilli replied.

Many justices poked fun at celebrities, who have done their share of cursing on live TV and who precipitated the FCC censures at issue against News Corp.’s Fox. Cher swore in 2002 and Nicole Richie a year later on that network’s Billboard Music Award show. Affiliates of Disney’s ABC were fined $1.2 million by the commission for airing a 2003 episode of NYPD Blue in which a woman’s buttocks were shown while she was preparing to shower. “The reasonable deference” by the government to broadcasters that the defendants want “is to not allow people in the situation of Nicole Richie and Cher to use those words,” said Roberts.

Attorney Seth Waxman of WilmerHale, arguing for ABC, isn’t “owning Nicole Richie,” he said. In any case, the issue of lack of scienter -- or advance knowledge -- that the then-star of The Simple Life would curse comes into play, he said. Waxman and Sidley Austin’s Carter Phillips, representing Fox, sought a return to FCC rules before 2004, when the fleeting indecency policy began to be enforced. Maybe there wasn’t a need for such a policy in the early days of federal regulation of radio, and eventually TV, because there wasn’t as much racy content broadcast, said justices including Roberts and Scalia.

Broadcasters would be alright with coming back to the high court to reargue their case, if there were a narrow decision that sends it back to the 2nd Circuit, one of their lawyers told us. “We always know that anytime you're asking the court to overturn a prior decision, it’s a steep climb,” Phillips said. It would be fine if the commission were required to return to the more restrained enforcement that was the norm prior to last decade, he continued. And it wouldn’t be “unappealing” to come back with Waxman to reargue the case at the Supreme Court, Phillips said as he stood next to his colleague at an impromptu news briefing. Waxman pointed to previous comments from the FCC in which it’s said the V-chip works, as compared to its argument before the court now. Philips noted that there are about 300 license renewals that are held up by indecency complaints, an issue that also came up in court. A commission spokesman declined to comment.

A 4-4 decision is quite possible, broadcast lawyers said, because Justice Sonia Sotomayor recused herself from the case. They said if that happens, the 2nd Circuit’s ruling will stand. Broadcasters may “feel demoralized” after the oral argument, with so many jokes made at their expense, Goldberg said. “You're kind of searching for votes you need.” Alito said during the arguments that broadcasters are “living on borrowed time.” It’s “not very long before it goes the way of vinyl records and 8-track tapes,” he said. “So why not let this die a natural death?"

Well before the industry guidance from the commission on the new policy, broadcasters had taken many steps to air racy content that wouldn’t be subject to censure because it didn’t include any of the seven dirty words aired in comedian George Carlin’s monologue that led to Pacifica, Verrilli said during argument. The 1980s saw an “explosion of the shock jock phenomenon” that “was quite vile and lewd,” he said. That shows the government can’t only rely on the self-restraint of broadcasters.

Advertisers whose spots help finance broadcasts wouldn’t tolerate indecent content, FCC rules or not, Phillips said. “As long as you have advertising revenue that drives a significant amount of the decision making here, you are going to have the kind of self-restraint that frankly ought to cause the court to say we should not -- we no longer need to -- treat the broadcast medium as the weak sister of the media.” Scalia asked if the “vulgarity” Phillips pointed to on cable portended otherwise. Roberts said salty language might attract an older audience: “They don’t want sanitized language.” The idea that the “problem is going to go away because you are going to be good as you can be, that seems an odd way to analyze First Amendment problems,” he said.

The justices want to keep broadcasting as a safe haven, at least judging by oral argument, which isn’t always a good predictor of rulings, industry officials told us. “A substantial number of judges endorse a course that they don’t want to be responsible for bringing this into the nation’s living rooms,” said Senior Vice President Andrew Schwartzman of the Media Access Project, with clients siding with the industry. “They do not want a broad decision,” he said of the judges. “Their social conservatism seems to be more important” than the First Amendment in ABC/Fox, he added.

"The near relentless peppering of the networks counsel was interesting,” Policy Director Dan Isett of indecency foe Parents Television Council said of the justices’ questions. He said it shows they seem to want to preserve the legal precedent of Pacifica, and the justices appear to see the case as not being about “a single curseword, but about the indecency regime” of rules. Some justices did ask “probing questions about broader issues presented in the briefs,” said broadcast lawyer Jack Goodman. But he said “the core holding of the 2nd Circuit -- that the FCC’s indecency decisions were inconsistent and unpredictable -- may very well be the basis of a decision rejecting these two FCC decisions.”

Ginsburg spent some time talking about current culture, and its propensity to use swearwords. “We want the King’s English” on TV, but that’s not used much in reality and kids often hear swearing, she said in court. “Children are not going to be shocked by them the way they might have been a generation ago,” Ginsburg said. Scalia, too, noted that such language is more common now. As the hour-long argument drew to a close, he said “maybe you shouldn’t interview” the celebrities who curse on TV.