FCC v. Fox Argument: On Naked Buttocks, Regulated Media, and the First Amendment

The precise issue before the Court in today's oral argument in FCC v. Fox is more muddled than not.  Indeed, Justice Breyer stated in argument that he thought that was the issue was limited to "fleeting expletives" when the Court granted certiorari - - - "Fox coming back" - - -but instead  "This is a new case, nothing to do with what we decided before. This is the case of ABC, period. And it is an attack on the 2001 guidelines, not fleeting expletives." 

Yet both Fox (represented by Carter G Phillips) focused on the "fleeting expletive" sanction based on Cher's statement at an award ceremony and ABC (represented by Seth Waxman) focused on a nudity sanction based on an episode of NYPD Blue, argued against the FCC (represented by the Solicitor General Verrilli).

The Justices - - - sans Sotomayor who did not participate - - - did seem reluctant to honor the respondents' request to overrule  FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978) (the "seven dirty words" case), yet also seemed uncertain to what extent the case survived into the current climate.  Justice Alito stated that "broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8 track tapes," and asked Carter Phillips, "So why not let this die a natural death? Or why do you want us to intervene - - -"  Phillips, rightly pointed out that it was actually the FCC that had asked the Court to intervene, although Alito retorted that "you are asking us to intervene by overruling a prior precedent."

The notion that "regulated media" is an exception, or at least a special case, with regard to general obscenity doctrine, is certainly under pressure.  The Solictor General began his argument with a sort of contractual theory - - - when "a broadcast licensee takes a license for the free and exclusive use of a valuable part of the public domain, it also accepts enforceable public obligations," including  "the indecency restriction."  Verrilli also emphasized radio, which although not before the Court, was in Verilli's view important because "a lot of the most vile and lewd material really is in radio."  However, the Justices seemed more concerned with whether today's television viewers actually knew whether they were watching broadcast television or cable television, as well as the other types of media and whether or not there were adequate parental controls. 

An assumption of no constitutional difference for regulated media underlied some of the arguments regarding the obscenity of "buttocks."  Indeed, as Seth Waxman pointed out, the art in the Supreme Court itself might be instructive:

MR. WAXMAN: Well, there's a bare buttock there, and there's a bare buttock here. And there may be more that I hadn't seen. But frankly, I had never focused on it before. But the point -

JUSTICE SCALIA: Me neither.
(Laughter.)

Yet even if there is a special status for regulated media, the line-drawing still poses problems. 

JUSTICE GINSBURG: If they did an excerpt from "Hair," could they televise that?
GENERAL VERRILLI: I think it would raise serious questions. I think nudity is going to raise very serious questions, and I think-

JUSTICE GINSBURG: In the opera in the "Metropolis" case [ "The Makropulos Case" see comments ] there's a scene where a woman is seen nude entering a bathtub. Suppose that were shown, that scene from the opera.
GENERAL VERRILLI: Well, I don't -- I think, Justice Ginsburg, that in a context-based approach, there's not going to be perfect clarity.

If the oral arguments are any indication, the Court's ultimate decision will not introduce "perfect clarity" into this complex doctrine.

RR
[image: from the Supreme Court friezes via]