WASHINGTON – The Supreme Court Tuesday heard arguments from Fox and ABC that federal rules banning indecency on TV violate the First Amendment, although the government’s lawyer countered that the ban is needed to protect children.
The case, Federal Communications Commission v. Fox Television Stations, Inc., poses a critical question for the court: Does the FCC’s indecency ban and use of fines on certain four-letter words and nudity on broadcast media violate the First Amendment?
It’s a controversy the court has engaged in before. In 2009, the Court voted 5-4 in favor of the ban, deciding that it was not in conflict with other federal communications laws. However, the issue quickly resurfaced when the 2nd U.S. Circuit Court of Appeals questioned the constitutionality of the policy and found the wording of the First Amendment too vague to support the FCC’s ban.
At Tuesday’s hearing, the justices immediately targeted the definition of indecency and why the FCC found it enforceable. “One cannot tell what’s indecent and what isn’t,” Justice Ruth Bader Ginsburg said, pointing out that the FCC deemed seven seconds of nudity involving a shot of an actress’s buttocks on NYPD Blue “indecent” several years ago, but decided the airing of the graphic World War II film Saving Private Ryan was acceptable for prime time.
“[Enforcing indecency] is the defining feature of the broadcast medium since its inception,” U.S. Solicitor General Donald Verrilli Jr. said, defending the FCC. “In a context-based approach, there’s not going to be perfect clarity.”
In the case of NYPD Blue, Verrilli said, the shot was from the perspective of a little boy in the show, while Saving Private Ryan used different angles and blurred lenses. Judging the use of occasional expletives, Verrilli said, has to be taken in context of the program’s narrative.
“It’s a question of whether it’s portrayed as appropriate,” he said.
Verrilli argued the context and appropriateness ultimately protect children from viewing obscenities on television, and are there for requirement judgment calls and oversight. Though he acknowledged the use of V-Chip, a parental control application for regulating what children can watch, he called it “deficient,” citing live broadcasts of celebrities cursing at awards shows that the V-Chip cannot track.
Still, lawyers Carter Phillips, representing Fox, and Seth Waxman, representing ABC, said that broadcast media has changed since the FCC prohibited expletives for broadcasts between 6 a.m. and 10 p.m. in 2004.
“I think it’s inevitable regardless that people are going to use language that they would naturally use,” Phillips said. “It’s not foolproof, but the stations are committed to doing that. They have all got their standards.”
In addition, Phillips said the FCC’s policies hurt live television and place such programming in “jeopardy.” He cited complaints over a scene from the last Olympics that featured nude statues, but pointed out the several nude statues found around the courtroom.
Following Phillips, Waxman pushed the issue of constitutionality, calling the FCC’s standards “vague and capacious.” Adding to Ginsburg’s earlier concern over the airing of Saving Private Ryan, he said the FCC complaints over NYPD Blue, a 10-season serial television show that often depicted violence and sexual scenes, were “constitutionally intolerable.”
He proposed four approaches for the FCC to reduce confusion over what can air on television, including allowing broadcasters to make reasonable judgments on what constitutes indecent material, to decided on a test for indecency with few factors, define the factors and redefine what phrases such as “sexually explicit” actually mean.
With Justice Sonia Sotomayor recused from the case because she dealt with it at a lower court level before her nomination to the Supreme Court, only eight justices presided over the case.