High Court Hears Broadcast Indecency Cases

Justices unlikely to toss all rules

There were no fleeting expletives uttered by the litigators or the Supreme Court justices during Tuesday's oral arguments over whether the Federal Communications Commission's indecency policy violates the First Amendment. But there were plenty of wry comments.

Associate Justice Elena Kagan, in noting the inconsistencies in some of the FCC's indecency rulings (the F-word in Saving Private Ryan is OK, but not in a blues documentary), quipped: "The FCC has complete discretion. Nobody can use dirty words or nudity except for Steven Spielberg."

"Broadcasters better not interview those celebrities," Justices Ruth Bader Ginsburg and Antonin Scalia, in nearly identical comments during oral arguments, said of Nicole Richie, Cher and Bono, the celebrities that let loose F-bombs on award shows broadcast by Fox.

Broadcasters seemed to make a lot of headway with the justices over the FCC's inconsistent enforcement of what constitutes indecent content, whether it's a fleeting expletive made by a celebrity during a live, unscripted show (FCC v. Fox) or the exposed bare butt in an episode of ABC's NYPD Blue (FCC v. ABC).

But the court is probably unlikely to throw out the FCC's indecency rules altogether. Despite arguments by Carter Phillips, a partner with Sidley Austin, that broadcast content was subject to the "natural restraints" of advertising, Justice Anthony Kennedy pointed out that unregulated cable, supported by advertising, was edgier.

The justices also seemed somewhat sympathetic to the FCC's argument that broadcasters, because they are granted use of the public airwaves, should provide a safe haven for children when they are most likely watching.

"The government has a bit more leeway. It's historically grounded, it seems to work, and having a safe haven seems good. Why not keep it as it was?" asked Justice Kagan.

Justices also bought the government's argument that sweeping away all the FCC's power to regulate indecent content on the airwaves would also apply to radio, which wasn't taken into account in the broadcaster arguments.

"The most vile material is on radio," said Donald Verrilli, the solicitor general of the U.S., arguing for the FCC.

Broadcasters will probably have to live with some form of broadcast indecency rules, but perhaps not the "fleeting" rule in 2004 that led to the Fox and ABC cases.

"They are more likely to be narrow about their decision and not throw out Pacifica [the 1978 decision that set the ground rules for the FCC's indecency policies]," Phillips told Adweek. Speaking to reporters following the hour of argument, he said, "We always knew that anytime you are asking the court to overturn a prior decision, it's a bit of an uphill climb. Our hope is that the court will go further than that and recognize that too narrow of a decision will continue to force these issues to be litigated. Although, the opportunity to come back to the court some time down the road is not all that unappealing to me."

The Court is expected to render a decision before the term is up in June.