Broadcasters met resistance before the U.S. Supreme Court in their effort to avoid fines for on-air profanity and nudity, with several justices predicting a spike in indecent programming should federal restrictions be eliminated.
In an hour-long session that included a search for naked buttocks on friezes adorning the courtroom, the court’s Republican appointees offered support for a Federal Communications Commission crackdown on indecent programming.
Chief Justice John Roberts asked why the government couldn’t reserve a “few channels” to be free from expletives and nudity. Justice Samuel Alito voiced concern that programming would become even more indecent if the FCC could no longer fine broadcasters.
“What will people who watch Fox be seeing between 6 a.m. and 10 p.m.?” Alito asked. “Are they going to be seeing a lot of people parading around in the nude and a stream of expletives?”
The dispute centers on expletives used by Cher and Nicole Richie on awards shows seen on News Corp.’s Fox and a scene featuring a naked actress on “NYPD Blue,” aired on Walt Disney Co.’s ABC. Broadcasters say the FCC’s policy is so vague it violates the Constitution.
‘Saving Private Ryan’
That contention drew support from Justices Elena Kagan and Ruth Bader Ginsburg. Each pointed to examples where the FCC took no action in the face of on-air nudity and profanity, as when ABC aired Steven Spielberg’s expletive-laden “Saving Private Ryan.”
“The way that this policy seems to work, it’s like nobody can use dirty words or nudity except Steven Spielberg,” Kagan said.
The high court has championed free speech under Roberts, striking down restrictions on violent video games, pharmaceutical marketing and political spending. In a 2009 ruling on the FCC’s indecency policy, justices in both the majority and dissent pointed to First Amendment concerns about the crackdown.
The FCC said in 2004 that it would begin punishing broadcasters for fleeting expletives -- one-time utterances on live shows. A federal appeals court struck down the policy, saying the FCC had applied its rules inconsistently, and the Obama administration is seeking to revive the rules.
Five Votes Needed
The justices didn’t give a clear indication how they will rule. Because Justice Sonia Sotomayor isn’t taking part in the case, the government must win the votes of five of the eight participating justices to revive the policy.
Four justices -- Roberts, Alito, Antonin Scalia and Anthony Kennedy -- indicated support at least for the FCC’s broad aims, if not necessarily its specific policy.
Kennedy said that, in the absence of FCC oversight, every “celebrity or wanna-be celebrity” would feel free to use profanity during live programming.
“We will just expect it as a matter of course if you prevail,” Kennedy told Fox’s lawyer, Carter Phillips.
Scalia said, “If these are public airwaves, the government is entitled to insist on a certain modicum of decency.”
The justices showed little interest a more far-reaching company argument aimed at overturning Supreme Court rulings that give the FCC more power to police broadcasters than cable and satellite. Comcast Corp.’s NBC and CBS Corp.’s CBS are joining ABC and Fox in opposing the FCC.
The case concerns incidents at the Billboard Music Awards, shown on Fox. At the 2002 show, Cher referred to critics of her work by saying, “F--- ‘em. I still have a job and they don’t.” A year later, Richie said, “Have you ever tried to get cow s--- out of a Prada purse? It’s not so f---ing simple.”
The FCC concluded that the broadcasts violated its indecency regulations, though the agency stopped short of imposing fines. Federal law lets the FCC levy a $325,000 fine on each station that airs indecent material between 6 a.m. and 10 p.m.
In the “NYPD Blue” case, the FCC would impose penalties totaling $1.2 million on more than 40 ABC-affiliated stations. The disputed 2003 episode shows actress Charlotte Ross’s buttocks as she disrobes for a shower and later a frontal view, with her hands covering her breasts and pubic area, after a young boy inadvertently walks in.
Those fines were a “shot out of the blue,” said ABC’s lawyer, Seth Waxman. He said “NYPD Blue” alone had depicted nudity on at least a dozen previous programs.
Nudity in Court
Waxman made heads turn -- including those of some of the justices -- when he said the friezes that depict historical lawgivers at the top of the courtroom’s four walls include nudity.
“Right over here, Justice Scalia,” Waxman said, as the justice looked above him.
“There’s a bare buttock there, and there’s a bare buttock here,” Waxman said, pointing above him as the audience chuckled. “And there may be more that I hadn’t seen. But frankly, I had never focused on it before.”
“Me neither,” said Scalia, drawing more laughter from the crowd.
The court will rule by July in the case, FCC v. Fox Television Stations, 10-1293.