Top justices grapple with FCC filters on cursing, nudity

WASHINGTON -- In an entertaining hour-long episode, Supreme Court justices on Tuesday considered the federal government's power to regulate expletives and nudity on the airwaves.

From Steven Spielberg to Nicole Richie, from a nude scene in opera to excerpts from the musical Hair, the justices covered —or uncovered — it all. There were moments of outrage and levity, including when one of the lawyers arguing reminded the justices that some of the allegorical figures carved in stone above the bench are unclothed.

And when the lively session was over, there was no clear signal that a majority of the justices, unlike a lower appeals court, would find that federal regulators acted unconstitutionally in sanctioning certain words and nudity.

"All we are asking for, what the government is asking for," Chief Justice John Roberts said at one point, "is a few channels where you can say, 'I'm not going to … hear the "S" word, the "F" word.' They are not going to see nudity."

The case arises from Federal Communications Commission findings against expletives uttered by Cher and by Nicole Richie at Fox Television's Billboard Awards and a brief shot of a woman's buttocks on ABC's NYPD Blue.

Broadcasters say the FCC policy is unconstitutionally vague and violates free speech rights. Fox Television Stations, going further than ABC in its arguments, has asked the high court to abandon a longtime rule that allows more government regulation of broadcast, compared with cable TV, because of the scarcity of the airwaves and the pervasiveness of broadcast TV and radio.

There did not appear to be a majority for that position Tuesday. Further, several justices, including those who often favor broad speech rights, suggested by their comments that the federal government may have grounds to try to keep certain indecent material off the air.

"These are public airwaves," Justice Antonin Scalia observed, and "the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth."

In appealing a ruling by the New York-based U.S. Court of Appeals for the 2nd Circuit, Solicitor General Donald Verrilli defended the FCC policy that bans even the one-time use of expletives that depict sexual or excretory activities. The current ban is broader than the one upheld in the 1978 case of FCC v. Pacifica Foundation, which permitted FCC sanction of a 12-minute monologue by comedian George Carlin repeating seven expletives.

Verrilli told the justices that when a broadcaster gets a license "for the free and exclusive use of a valuable part of the public domain" it comes with public obligations, one of which is to follow indecency restrictions imposed from 6 a.m. to 10 p.m., when children are most likely to be in the audience.

Justice Ruth Bader Ginsburg, seeming most sympathetic to the network challengers, noted that a key complaint is that the FCC policy is inconsistent, for example, by objecting to the nudity of a NYPD Blue episode but not in a TV airing of the movie Schindler's List.

"It's the appearance of arbitrariness," Ginsburg said, who also raised concerns that a nude scene in an opera or the musical Hair would be censored.

Verrilli stressed that the rules are "context-based" and that some nudity, for example in a depiction of a World War II concentration camp, is permitted. Yet, Verrilli said, "We would concede that there is not perfect clarity in this rule," as opposed to a rule that would prohibit all nudity.

Verrilli emphasized the importance of preserving "a safe haven where, if parents want to put their kids down in front of the television at 8 p.m., they know … they're not going to have to worry about whether the kids are going to get bombarded with curse words or nudity."

Justice Elena Kagan, referring to the fact that Spielberg produced Schindler's List and Saving PrivateRyan, another World War II movie permitted on TV despite plenty of expletives, noted, "It's like nobody can use dirty words or nudity except for Steven Spielberg."

Verrilli disagreed with the suggestion that the policy was inconsistently applied. In most of the commission decisions, he said, it's "clear which side of the line" a program would fall on.

Representing Fox Television, lawyer Carter Phillips urged the justices to abandon the principle of FCC v. Pacifica Foundation, allowing more restrictions on broadcast material.

"What has happened over the 30 years with respect to the broadcast side of television is a very fundamental change," he said. "Cable is now equally pervasive. Cable is now equally accessible to TV, satellite equally accessible to TV."

"But that cuts both ways," Roberts interjected. "People who want to watch broadcasts where these words, or expose their children to broadcasts where these words are used, where there is nudity, there are 800 channels where they can go for that."

Justice Samuel Alito asked Phillips: "If we rule in your favor on First Amendment grounds, what will people who watch Fox be seeing between 6 a.m. and 10 p.m.? Are they going to be seeing a lot of people parading around in the nude and a stream of expletives?"

Phillips said no, because Fox has its own guidelines that restrict indecent material. "The truth is that the advertisers and the audiences that have to be responded to by the networks insist on some measure of restraint," Phillips said.

Justice Anthony Kennedy suspected there would be more of a change. "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 said the network might "bleep" out the words.

Lawyer Seth Waxman, representing ABC, argued that the FCC policy led to arbitrary enforcement.

"A regime in which government officials decide years after the fact that seven seconds of rear nudity in this particular episode of NYPD Blue is indecent, but 40 seconds of nudity including full frontal nudity in Catch-22 is not; that expletives in a documentary about blues musicians is indecent, but even more of those expletives in a fictional move about World War II is not, is constitutionally intolerable."

Roberts countered that viewers understand "that the context matters. People understand that, including children. … The government's effort is to try to understand the context. That's why you get a different rule in Saving Private Ryan than you get with … Nicole Richie."

Waxman referred, too, to threats of censorship of the opening 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."

Some of the justices and spectators immediately looked up to the figures in the marble friezes. "There's a bare buttock there, and there's a bare buttock here," Waxman said. "I had never focused on it before."

As the room erupted in laughter, Scalia added, "Me neither."

A ruling in the case of FCC v. Fox Television Stations is expected by the end of June, when the justices usually recess for the summer.