Ginsburg wonders how "contemporary community standards are determined." Garre says the FCC asks its "collective experts: lawmakers, broadcasters, courts, interest groups" and the Church Lady. When Ginsburg points out that Pacifica, the Carlin case, was decided in 1978, before the Internet, Garre replies that the proliferation of smut on cable and the Internet are all the more reason to strictly regulate network TV: So people can turn on their sets and eat dinner, confident that they will "not be bombarded" with Big Bird. Dropping the F-bomb.
Justice Stephen Breyer wants to know how the five-second-delay-bleeping thingy works and why it only works sometimes. Garre explains that Richie's expletives weren't bleeped because "they only had one person working the bleeping machine" that night.
Stevens proves he is our kind of jurist when he asks whether the FCC ever "takes into consideration that the particular remark was really hilarious?"
Carter Phillips, representing Fox, says the FCC's change of policy about fleeting expletives was sneaky. From 1978 to 2004, words were only indecent if they described sexual or excretory organs or activities; that changed in 2004 for no discernible reason. Scalia retorts that the F-word always referred to sexual activities. Adds Chief Justice John Roberts, "The reason these words shock is because of the association." Scalia deadpans, "And that's why we don't use the word jolly-woggle instead of the F-word." Even Justice David Souter argues that if what changed between 1978 and 2004 was that the FCC determined that viewers were deeply offended by fleeting expletives, then the change of policy might not be arbitrary and capricious. Phillips replies that this isn't the only question here. "This was not about regulating the price of oil going through a pipeline," he says. "This is about regulating speech." Neither Scalia nor Roberts will accept his argument that there is some higher standard to be met for administrative regulation just because speech is involved.
Phillips adds that this is a statute with criminal penalties—including potential fines of $325,000. The FCC policy represents an "extraordinary in terrorem regime," he argues, citing amicus briefs describing the writers block faced by TV writers and broadcasters who no longer know which circumstances will set off the FCC's moral whack-a-mole. (Disclosure: I am a trustee of the Jefferson Center for the Protection of Free Expression, which also filed an amicus brief in this case.) What, wonders Phillips, about small TV stations afraid to carry local sports for fear of a student letting loose?
Roberts says awards shows are different. Nicole Richie has many youthful fans because she is a "celebrity" and they "like her music" and "want to hear what she has to say." (Name one Nicole Richie fan, Mr. Chief Justice, I defy you.)
When Phillips says that allowing a handful of objectors to set broadcast policy is a "hecklers' veto," Scalia heckles him right back. "So those of us that don't like it are hecklers, and you can't take our position into account?"
Stevens asks whether Americans today are more tolerant of foul language than they were 30 years ago, and when Phillips agrees they probably are, Scalia says, "Do you think your clients had anything to do with that?" Phillips retorts, exasperated: "Go to a baseball game, Justice Scalia. You hear these words every time you go to a ballgame." Scalia snaps back that this is still "not normal in polite company" and a "coarsening of manners."
It's hard to say how this all shakes out. Three justices say very little. Two clearly favor granting the FCC even more standardless discretion. The rest keep offering peanuts to the elephant in the room. It's a safe bet that the court will try to stick to the narrow administrative question, despite the justices' itch to talk dirty. Mostly, though, it's a bitterly disappointing day for those of us who'd looked forward to hearing some filthy words at the high court. But, having run the whole case through the FCC's highly subjective, context-based smut filter, I did come up with the following list of dirty words from today's arguments: Briefs. Golden globes. First blow. Dung. Pipeline. Jolly-woggle. Perhaps it's true that the Supreme Court can take away our F-bomb. But they cannot touch our dirty, dirty minds.