WASHINGTON -- "There's a bare buttock there, and there's a bare buttock here," said Seth Waxman, pointing up to the historical and mythical figures that line the friezes along the four high walls of the nation's highest courtroom.
Waxman, the former solicitor general who was representing ABC, argued Tuesday that the Supreme Court's marble-cut figures looked just like a series of statues televised during the 2008 Olympics' opening ceremonies, which some viewers complained violated Federal Communications Commission regulations against broadcast indecency.
With his fittingly visual stunt, Waxman was attempting to illustrate the unconstitutional sweep of the federal government's content restrictions on over-the-air television networks. But the justices, though entertained, appeared unconvinced.
The Supreme Court first stamped its approval on the FCC's indecency regulations in 1978, when it upheld an agency action against a radio station's mid-afternoon broadcast of comedian George Carlin's "Seven Dirty Words" routine. The Court reasoned that broadcast media's predominance and accessibility to children justified government regulation of otherwise protected speech. The FCC went on to exercise its authority sparingly and narrowly until the past decade, when the agency slapped fines on ABC and Fox for, respectively, seven seconds of bare buttocks on "NYPD Blue" and several fleeting expletives uttered by Cher and Nicole Richie on live televised broadcasts.
Tuesday's case, FCC v. Fox, first came up to the Supreme Court in 2009, when the justices by a 5-4 vote upheld the agency's "fleeting expletives" rule, adopted in 2004. The Court's decision did not reach the constitutional argument against the rule.
Justice Clarence Thomas joined the Court's conservative majority then, but in a separate concurrence he attacked the 1978 decision, FCC v. Pacifica, that gave the FCC a constitutional foundation for regulating broadcast content. "The text of the First Amendment makes no distinctions among print, broadcast, and cable media," Thomas wrote.
With the 2009 ruling, the high court sent the current case back to the U.S. Court of Appeals for the 2nd Circuit. The lower court followed Justice Thomas' lead and struck down not only the fleeting-expletives rule but also the FCC's 2001 articulation of its indecency policy as unconstitutionally vague.
Anticipating the liberal justices' support for Thomas' position, lawyers for Fox and ABC pressed the Court this time around to recognize that changes in the media landscape have eroded the justification for treating broadcast differently from cable and satellite television, whose content the FCC does not regulate.
Only Justices Ruth Bader Ginsburg and Elena Kagan, however, seemed to fully sympathize with the networks.
"The way that this policy seems to work, it's like nobody can use dirty words or nudity except for Steven Spielberg," Kagan told Solicitor General Donald Verrilli, who argued for the FCC. "There's a lot of room here for FCC enforcement on the basis of what speech they think is kind of nice and proper and good," she continued, calling the prospect of such governmental subjectivity "a serious First Amendment issue."
Also questioning Verrilli, Ginsburg focused on the chilling effects of the FCC's policies. Ginsburg, a well-known opera fan, posited a scene from "Metropolis" in which "a woman is seen nude entering a bathtub." Would that be allowed on the air, she asked.
"I think, Justice Ginsburg, that in a context-based approach, there's not going to be perfect clarity," Verrilli answered.
Ginsburg's question did not appeal to the Court's other opera-minded member, Justice Antonin Scalia. For Scalia, the FCC's indecency regime "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."
"These are public airwaves. The government is entitled to insist upon a certain modicum of decency," Scalia said to Verrilli. "I'm not sure it even has to relate to juveniles, to tell you the truth."
Chief Justice John Roberts, speaking to Fox's lawyer Carter Phillips, also seemed to lament popular culture's devolving standards of decency. "It was not the case," Roberts said, that from the 1920s -- when the law first enabled regulation of radio -- to the 1970s, "nudity commonly appeared on broadcast television or the various words we're dealing with here commonly appeared."
And Justice Anthony Kennedy feared that "the inevitable consequence" of striking down the FCC's rules would be that "every celebrity or wannabe celebrity that is interviewed can feel free" to curse at will.
Justice Stephen Breyer, for his part, spent the oral argument fretting over how best to split the difference between the parties and keep the ruling narrow. Because Justice Sonia Sotomayor, who previously sat on the 2nd Circuit, has recused herself, Breyer's handwringing could very well short-circuit any clear direction the other justices hoped to give on the constitutional question.
Perhaps sensing this uncertain outcome, Justice Samuel Alito offered a way out.
"Broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and eight-track tapes," Alito said. Instead of reversing precedent and upsetting the status quo for a soon-to-be extinct medium, he asked, "Why not let this die a natural death?"
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