What lawyer would want to work amid nudity and filth?
Four Justices of the Supreme Court made clear Tuesday that they would not. Their determination did not waver even when former Solicitor General Seth Waxman, representing the ABC-TV network, pointed out that the famous frieze surrounding the Court's chamber depicts various undraped figures that might subject a broadcaster who showed them on TV to hefty fines.
Waxman's waving finger of shame -- one of the most dramatic moments in Supreme Court argument since Daniel Webster shed tears over the fate of Dartmouth College -- drew gasps and laughter from the crowd. It is not clear, however, that it budged the Court's Decency Caucus, made up of Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito. They all but begged America's broadcasters to remain an island of decency in a sea of filth.
America, by and large is the least censored society on earth -- since at least the 1960s, dialogue in this country has not only been "robust, uninhibited, wide-open," but dirty as well. TV broadcasters, though, live in an alternate society, under the watchful censorial eye of the Federal Communications Commission. Since 2004 at least, the FCC has taken seriously its strange mission, which is to purge the airwaves of indecency that might corrupt the young. (I say the airwaves by design, because the FCC's statutory mandate runs only to broadcast television and radio. Cable and satellite are immune.)
The Supreme Court in recent years has refused to permit governments to suppress "virtual" child pornography, "crush" videos of animal cruelty, or vile, abusive picketing of veterans' funerals. All this builds on Cohen v. California, a 1971 case in which the Court reversed the conviction of a protester who entered a courthouse wearing a shirt reading FUCK THE DRAFT. "Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us," wrote Justice John Marshall Harlan in that case.
Broadcast TV and radio, however, is the exception. Under a 1978 case called FCC v. Pacifica Foundation, the Commission can in fact require broadcasters to purge broadcasts -- at least between 6 a.m. and 10 p.m. -- of an ill-defined category called "indecency." Broadcasting, Justice Stevens wrote in Pacifica, is "uniquely pervasive" and more available to children than other media, and thus could be censored in ways other media can't.
So there's a contradiction. Almost everyone, and every medium of expression, lives in Cohen world. Broadcast TV is in Pacifica world.
Tuesday's case arises out of a 2004 policy change by the FCC. After years of agitation from decency crusaders, it decided to do more to enforce the Pacifica precedent. That case arose when a San Francisco radio station broadcast the famous "Filthy Words" routine by George Carlin during the afternoon. A listener complained, and the Commission for the first time issued a mild reprimand. Pacifica took the case to the Court, which held that the Commission could reprimand the station for not playing the routine during late-evening hours.
For a quarter-century, the FCC enforced that decision narrowly, basically saying that if a station used those specific words a whole lot during the day, it would be in a heap of trouble. After 2004, however, the FCC broadened its forbidden-expression category and decided that even one brief transgression, if dirty enough, would be enough to get a broadcaster in hot water.
One that was before the Court was against Fox, for an awards show in which Nicole Richie asked "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." Another ran against ABC, for a scene from NYPD Blue in which a young boy blunders into a bathroom and sees a naked woman bathing. The Second Circuit had reversed the fines, holding that the FCC policy was so vaguely worded that networks could never know whether they were violating it or not -- a big no-no in First Amendment law. The Court of Appeals, of course, was bound by Pacifica. But on Tuesday, former Solicitor General Carter Phillips, representing Fox, asked the Court to overturn Pacifica.
Getting the Court to overrule one of its own precedents is always an uphill slog -- and more so when the decision you seek will be written up as SUPREME COURT: FILTHY WORDS OK AFTER ALL. Even before Phillips got up to argue, Justice Kennedy helpfully suggested to Solicitor General Donald Verilli, representing the government, that "What you're saying is, is that there is a public value in having a particular segment of the media with different standards than other segments." Scalia liked that idea: "Sign me up as supporting Justice Kennedy's notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts. It's a symbolic matter. And if this is -- these are public airwaves, the government is entitled to insist upon a certain modicum of decency."
Once Phillips arose, the Chief Justice made a telling slip. "All we are asking for," he began, then corrected himself, "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." Alito wondered if the whole thing wouldn't just go away pretty soon. "Broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and eight-track tapes," he said. "So why not let this die a natural death?"
The Decent Four didn't get a lot of pushback from the Other Four (Justice Sonia Sotomayor recused herself.) In part that may be because Nicole and Paris were lurking somewhere in the case. "We don't have to overrule Pacifica," Justice Breyer noted. "What Fox was penalized for was two women on television who basically used a fleeting expletive which seems to be naturally part of their vocabulary." That could be fixed by limiting the FCC's policy, he suggested.
Former Solicitor General Seth Waxman represented ABC, which was challenging the fine for nude buttocks in NYPD Blue. Waxman argued the vagueness issue; if the Court finds the policy vague, it can rule for the broadcasters without disturbing Pacifica. Waxman noted that the Commission is going far afield to censor nakedness -- it now has before it an action against ABC for its opening coverage of "the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks."
As if possessed by the moment, Waxman suddenly pointed to his right. "Right over here, Justice Scalia," he said.
The courtroom really did rock.
Whether Waxman rocked the Justices is a different question. At the end of the argument, it seemed that the best the broadcasters could hope for would be a 4-4 court: Roberts, Scalia, Kennedy and Alito favoring the FCC, and Breyer, Ginsburg, Sotomayor, and Thomas favoring the broadcasters. That would affirm the Second Circuit's opinion and suspend the FCC's indecency rule.
Breyer is no guaranteed vote to affirm, and of course, Clarence Thomas is sometimes strongly pro-speech (especially if it's campaign speech) and sometimes strongly anti-speech (the First Amendment provides no right to anyone but parents to address speech to children, he wrote last year in a dissent to Brown v. Entertainment Merchants Association, the violent video-games case). As usual, he said nothing.
Outside the Court Tuesday, First Amendment protesters stood in a line near the Court steps, chanting over and over the words that had gotten George Carlin in trouble 35 years ago: "Shit, piss, fuck, cunt cocksucker, motherfucker, and tits."
They live in Cohen world.
Nicole Richie, alas, was nowhere to be found.
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