A Supreme Court hearing on the power of the Federal Communications Commission to regulate broadcast indecency set for Jan. 10 is sure to be, in the famous words of Vice President Joe Biden, a “big f—ing deal.”
For the first time in 33 years, when they cited George Carlin’s “Seven Dirty Words” in granting the FCC the authority to set rules to protect children from indecent or offensive content, the Supremes will visit the agency’s rules in a one-hour, rapid-fire oral argument pitting the FCC against Fox and ABC.
Setting the stage for another landmark decision, the court will consider years-old cases that take into account the full range of broadcast indecency issues, including f-bombs—affectionately known as “fleeting expletives”—in live broadcasts (the subject of FCC v. Fox) and nudity in scripted programming (FCC v. ABC). The agency famously levied a $1.4 million fine against ABC over an NYPD Blue episode in 2003 showing a woman’s bare butt for seven seconds.
In a case that features three heavyweights of litigation (see below), Fox and ABC will argue that the FCC’s indecency rules are antiquated and vague, chill free speech, and ought to be thrown out. The government will argue that the FCC has the right to regulate broadcasting during hours when children might be watching.
While broadcasters and the FCC duke it out, unregulated content via cable and the Internet has advertisers asking: WTF? Who needs the FCC when broadcast indecency is already controlled by audience ratings and ad dollars?
“It’s kinda crazy—what keeps this under control is advertisers,” said Rino Scanzoni, chief investment officer at GroupM. “Every advertiser we have has a content policy and every program is prescreened for advertisers. Without ad support, the program isn’t viable.”
That’s not enough for watchdog groups like the Parents Television Council, which filed an amicus brief in the case. PTC is convinced that broadcasting will go to hell in a handbasket if the rules are lifted. “Broadcasters want to shred the envelope, not just push it,” said Tim Winter, president of the group, which uses its email list to flood the FCC with complaints.
Even if the court doesn’t throw out the rules wholesale, it is likely to demand more clarity. So far, the “I know it when I see it” approach has led to years of litigation in appellate courts. For example, the FCC found that the f-word in the documentary The Blues was not cool, and yet OK in Saving Private Ryan. Frontal nudity was permissible in Schindler’s List, but not on NYPD Blue.
“Things we thought were OK before are not OK now,” said one network standards exec. “We endeavor to hold to standards, but there’s also a fear. We struggle with how the FCC will see it.”
The court will render a decision sometime before its current term is up in June.
For Fox: Carter Phillips, partner, Sidley Austin
Carter Phillips has argued 73 cases before the Supreme Court, more than any other lawyer in private practice. He argued his first case at age 29 when he served in the Department of Justice under President Ronald Reagan. In total, he argued nine cases before the Supreme Court on behalf of the government. His legal career includes clerking for Supreme Court Chief Justice Warren Burger. All that experience aside, Phillips told the National Law Journal he’ll probably be best known for defending Fox before the Second Circuit in 2006: “They’ll probably put on my tombstone: ‘Phillips, the lawyer who dropped the f-bomb on the Second Circuit.’”
For ABC: Seth Waxman, partner, WilmerHale
Seth Waxman has also been on both sides, having served as Solicitor General under President Bill Clinton. He has argued before the Supreme Court 56 times and along the way won several landmark cases, including McConnell v. Federal Election Commission, in which the court upheld the Bipartisan Campaign Reform Act of 2002 (also known as McCain-Feingold) and Citizens United v. Federal Election Commission, in which he worked alongside another former SG, Elena Kagan, who now sits on the Supreme Court as an associate justice.
For the FCC: Donald Verrilli Jr., Solicitor General
Before joining the Obama legal team in 2009 and rising to Solicitor General last June, Verrilli spent 20 years with Jenner & Block, specializing in telecommunications, First Amendment and intellectual property law and managing the firm’s Supreme Court practice. He represented big media in a number of high-profile cases, including the Recording Industry Association of America in MGM v. Grokster, and Viacom in Viacom v. Google. Before the Supreme Court he has argued a dozen cases and participated in more than 100 cases, as well as having clerked for Justice William Brennan.