A few years back, when FCC v. Fox came before the Supreme Court, First Amendment scholars wondered whether Carter Phillips, who represented Fox Television in its challenge to the FCC’s “fleeting expletives” policy, would drop the S-bomb in oral argument at the court as he had done at the appeals court. He didn’t. Much to the chagrin of, well, me. But when the case comes back up to the court this morning on reruns, former Solicitor General Seth Waxman, who represents ABC Television (which has been added to the case for showing naked buttocks on NYPD Blue) is more than willing to make up for the lack of trash talk with some stone tushies.
Waxman patiently explains to the rapt justices that ABC was never sanctioned for over a dozen NYPD Blue episodes over nine seasons that included bare buttocks. Not until the last one. Arbitrary, bad FCC. Then, he raises his arms, Moses-like, to the glorious friezes that surround the interior of the ceremonial courtroom. And then Waxman points to one sculpted classical stone lawgiver after another as he guides the justices through the fleeting bottoms that pervade their lofty spaces: “There's a bare buttock there, and there's a bare buttock here,” he marvels. “And there may be more that I hadn't seen. But frankly, I had never focused on it before.” To which Justice Antonin Scalia grits out, “Me neither,” while all of the justices gape up at the walls above them, like bemused Muppets on Veterinarian Hospital.
That’s right, today at the highest court in the land, Seth Waxman dropped the butt-bomb.
If the issues, players, and language of the fleeting-expletives conflict sound vaguely familiar, it’s because the Supreme Court already addressed the FCC’s indecency policy in 2009.* The issue before the court is not whether the FCC can regulate obscenity. It can. The issue is whether the FCC can regulate “indecency,” as defined in a seminal 1978 case about a daytime radio broadcast of George Carlin’s “Filthy Words” monologue as “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs” between 6 a.m. and 10 p.m., when children might be watching.*
Until 2004, the FCC focused on the really egregious examples of indecency and let slide the instances of so-called “fleeting expletives,” those ritual F-bombs and S-bombs detonated during the 2003 Golden Globe awards (Bono) or the 2002 and 2003 Billboard Music Awards (Cher, Nicole Richie and Paris Hilton).
Following the implementation of a 2004 Bush-era policy change, the networks were fined for those kinds of episodes, plus Janet Jackson’s 2004 Superbowl nipple-bomb, plus a 2003 broadcast in the Midwest of NYPD Blue for an episode in which an actress revealed “the side of her buttocks and the side of one of her breasts.” The Second U.S. Circuit Court of Appeals in New York found the new FCC policy arbitrary and capricious. In 2009, however, the U.S. Supreme Court, in a 5-4 opinion written by Justice Scalia, upheld the policy but kicked it back to the appeals court to decide all the constitutional issues it didn’t want to contend with. The Second Circuit once again found the whole policy unconstitutionally vague, noting the chilling effect on broadcasters, the content-based nature of the indecent speech targeted, the changes in technology that make the old FCC indecency rules obsolete, and the proliferation of cable, satellite, and Internet broadcasting that goes unregulated. The Supreme Court agreed to hear the case again, presumably to resolve the First Amendment issues it avoided the first time. Sonia Sotomayor is sitting this one out.
The Obama Administration has defended the Bush indecency policy with great zeal, and Solicitor General Don Verrilli opens his argument by reminding the court that “when a broadcast licensee takes a license for the free and exclusive use of a valuable part of the public domain, it also accepts enforceable public obligations.” Verrilli reminds the court that regulation of indecency “has been a defining feature of the broadcast medium from its inception in the 1920s in the Radio Act and has continued to be a defining feature of this medium throughout its history.”
Justice Ruth Bader Ginsburg stops him to point out that the problem with the FCC’s new policy is that “one cannot tell what's indecent and what isn't; that ... Private Ryan is okay, Schindler's List is okay, but NYPD Blue is not.” (Justice Elena Kagan will later characterize this as an FCC policy that “nobody can use dirty words or nudity except for Steven Spielberg.”) Verrilli replies that the number of FCC decisions that raise questions of arbitrariness are “a miniscule fraction” and that sure, it’s a context-based (read: totally arbitrary) rule the FCC is imposing here, but the court allowed context-based regulation in that 1978 “filthy words” case, Pacifica.
Justice Stephen Breyer raises a question about why the ABC ass case is being heard together with the fleeting-expletives case. Justice Ginsburg asks whether Hair could be broadcast on network television (Verrilli: “Serious questions”) and then whether the opera Metropolis could be broadcast (Verrilli: “Context-based approach”). Then Justice Anthony Kennedy interrupts the parade of naked horrible to clarify: “What you're saying is that there is a public value in having a particular segment of the media with different standards than other segments.” Verrilli replies that, yes, this is about preserving “a safe haven where if parents want to put their kids down in front of the television at 8:00 p.m. they're not going to have to worry about whether the kids are going to get bombarded with curse words or nudity.”
Because if you want that, you can find it in the back seat of my car, at rush hour when we’re late for Kung Fu. Just ask my children.