Fleeting Expletives, Partial Nudity, and the First Amendment: What approach will the Supreme Court take in FCC v. Fox Television Stations, Inc?

This past Tuesday, the Supreme Court heard lively oral arguments in FCC v. Fox Television Stations, Inc. (No. 10-1293) addressing the constitutionality of the Federal Communications Commission’s (FCC) authority to regulate “indecency” on broadcast television.  Specifically, the Court heard Fifth Amendment Due Process arguments over the vagueness of the FCC’s particular indecency-enforcement regime as well as First Amendment arguments as to the constitutionality of the FCC’s general ability to regulate speech on broadcast media.

Since 2001, the FCC has applied a two prong, “context-based” approach for determining indecency on broadcast networks. First, the FCC examines whether the material broadcast describes sexual or excretory organs or activities. If the broadcast includes such subject-material, the FCC then considers whether the broadcast is “patently offensive” as measured by contemporary community standards for the broadcast medium. Factors relevant for a “patently offensive” determination include “(i) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities, (ii) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities, and (iii) whether the material appears to pander, is used to titillate, or to have been presented for its shock value.” See Brief for Petitioners at 8-9, FCC v. Fox Television Stations, Inc, No. 10-1293 (U.S. argued Jan 10, 2012).

Applying this approach, the FCC found three television broadcasts in violation of its indecency policy. Id. at 10-16. The first two broadcasts dealt with fleeting expletives while the third pertained to partial nudity.  Fox aired the fleeting expletives during its annual Billboard Music Awards broadcast. In 2002, Cher received an “Artist Achievement Award” and declared “f*** em” in reference to her critics during her acceptance speech.  One year later, Nicole Ritchie and Paris Hilton, hosts of the Billboard Music Awards, engaged in live dialogue about their Fox show “The Simple Life.” During this conversation, Ms. Ritchie commented “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.” ABC Inc. later aired the partial nudity scene during its 2008 broadcast of NYPD Blue: Nude Awakening. The opening scene involved the showing of a woman’s buttocks for seven seconds from various viewpoints including that of a young boy.  The television networks aired all three of the broadcasts before 10pm. (Note: The FCC does not regulate network television for indecency from the time period of 10pm till 6am. The FCC also does not regulate cable television stations.)

Although the Supreme Court previously recognized the FCC’s authority to censor indecency in both broadcast television and radio, see FCC v. Pacifica Foundation, 438 U.S. 726 (1978),  network television studios mounted a joint offensive directly challenging the court’s earlier decision. Notable Supreme Court litigators Carter Phillips and Seth Waxman led the charge during the oral arguments Tuesday as representatives for Fox and ABC respectively. (The Supreme Court consolidated Fox and ABC’s separate actions against the FCC.) Solicitor General Donald B. Verrilli represented the government. Mr. Phillips and Mr. Waxman raised two main arguments including: (1) that under the First Amendment the FCC lacks any authority to regulate indecency on broadcast television as the factual underpinnings of Pacifica no longer exist, and alternatively (2) that the FCC’s “context-based,” indecency enforcement regime is facially invalid under the Fifth Amendment because of unconstitutional vagueness.

As much as one can glean from oral arguments, it appears that the majority of Justices will most likely avoid taking the network stations’ first recommended approach of overruling Pacifica and eliminating the FCC’s authority to regulate “indecency.” Whereas Justices Kagan, Alito, and Kennedy provided slight hints about their inclinations, four of the other Justices appeared to give strong impressions on what issues they will tackle in their upcoming opinion.

Justice Ginsburg, for example,  highlighted the vagueness approach from the beginning as she noted to Solicitor General Verrilli that ““from the briefs and what the FCC has been doing [she took it] that the major objection is that one cannot tell what’s indecent and what isn’t” and reiterating that “that is the major objection.” Justice Breyer seemed similarly more receptive to unconstitutional vagueness as opposed to the nuclear option of completely eliminating FCC regulation. Stating that removing FCC authority would be “very, very broad,” he pushed Mr. Phillips to acknowledge that “it’s absolutely clear . . . that if this Court wants to say we decided the outer limits of the First Amendment in Pacifica . . . the Court can clearly hold that way.”

Justice Scalia further suggested that removing FCC regulation would probably not change much as “[television networks] have their [own] guidelines that generally prohibit [nudity].” Moreover, he reflected on the symbolic value of imposing decency standards on broadcast media. “[J]ust as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts,” “the government is entitled to insist upon a certain modicum of decency [on public airwaves].” Finally, as Adam Liptak reported for the NY Times, Chief Justice Roberts, the only member of the court currently with young children, appeared to make a Freudian slip when he commented that “[a]ll we are asking for, what the government is asking for, is a few channels where you can say I’m not going to – – – they are not going to hear the S word, the F word. They are not going to see nudity.” Although a noted defender of First Amendment rights, Justice Roberts here did not give any impression that he would vote for dismantling the FCC’s enforcement authority.

With the Court now in final deliberations, it will certainly be interesting to see what positions the Justices ultimately take regarding expletives, nudity , and the FCC’s role in broadcast media. Until then, please see below for more resources on this subject.

Relevant Sources:

Cornell’s Legal Information Institute provides a detailed, yet succinct summary of the relevant history, facts, and issues of the case.  For a one-stop shop of the amicus curiae and parties’ briefs, see the American Bar Association’s Supreme Court Preview page.  The Second Circuit’s opinions and orders for Fox Television and ABC can be retrieved by clicking on the embedded links.  (The Second Circuit’s oral arguments in Fox Television Stations are also available on YouTube). Stay Tuned!

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