Kennedy replies that the V-chip is available and that “you ask your 15-year-old, or your 10-year-old, how to turn off the chip. They're the only ones that know how to do it.”*
Justice Scalia jumps in: “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.” This would be a good time to reflect on the dress code for the statuary all around the court, but we leave that to later.
Verrilli notes that no matter how ubiquitous swearing has become, “You don't hear those words in churches or synagogues.” And Scalia jumps in to say, “Well, you do more and more.” Which means I am totally going to the wrong services.
Carter Phillips has 15 minutes to defend Fox Television again today and he and the chief justice mix it up a little over why the FCC completely failed to regulate TV indecency until 1975. Roberts says it’s because there was no TV indecency until 1975.
Kagan says, “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.” But Phillips replies that the system hardly “works” because, as he puts it, “we sit here today, literally facing thousands of ginned-up computer-generated complaints that are holding up literally hundreds of TV license renewals, so that the whole system has come to a screeching halt.”
Roberts jumps in to add, “People who want to expose their children to broadcasts where these words are used, there are 800 channels where they can go for that. All we are asking for ...” he stops himself. ”What the government is asking for, is a few channels where you can say they are not going to hear the S-word, the F-word. They are not going to see nudity.”
Alito notes, “Broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8-track tapes.” Then he adds, “So why not let this die a natural death?” Kennedy presses further: “Isn't the inevitable consequence that you're arguing for on this fleeting-expletive portion of this case, that every celebrity or want to be celebrity that is interviewed can feel free to use one of these words?” Phillips replies that “we would continue to try to bleep it out as best we could.”
Seth Waxman rises to explain why context-based regulation means that the FCC punishes some violations and not others. Chief Justice Roberts shoots back that even children understand that context matters. “That's why you get a different rule in "Saving Private Ryan than you get with Paris Hilton and Nicole Richie.”
Breyer observes that the NYPD Blue episode to which the FCC objected was “called ‘Nude Awakening,’ and that “It's about the sexual awakening of a child.” Waxman replies that “it was not sexual awakening; this was a portrayal in the context of a story line about the difficulties and embarrassments of blended families.” The naked kind, presumably. Waxman adds that the FCC never sanctioned nudity before this, including Monty Python’s Flying Circus and Catch-22. He adds that the FCC still has pending before it a complaint “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.” And that’s when he starts waving his hands all around and reveling in the beauty of the sculpted buttocks up above.
I count four votes to uphold the FCC policy, at least as it was applied in these cases, but with only eight votes in play, it’s hard to say what will happen. And who knows where Justice Clarence Thomas—who has signaled an aversion to this FCC rule, but also an aversion to undermining parental control—may come down on this one. All told, the lesson today seems to be that one man’s flying buttresses are another man’s floating butts. But all told, the true vibe here is that there should be a safe haven from gratuitous bottoms, even if that safe haven is not the Supreme Court.
Correction, Jan. 11 2011: This article originally misstated the court's 2009 indecency case as a 2010 case. Also, the 1978 George Carlin Pacifica case was mistakenly referred to as being decided in 1975. Additionally, due to a transcript error, a joke about the V-chip was misattributed to Donald Verrilli rather than Justice Anthony Kennedy.