Attorney Phillips attempted to argue that the "indecency" regulations were recently adopted and that therefore they do not constitute a longstanding understanding between the nation and the nation's broadcast media. Chief Justice Roberts immediately interrupted Phillips, insisting that broadcasts were becoming more indecent:
CHIEF JUSTICE ROBERTS: Well, that's because broadcasts didn't commonly have this sort of -- these sorts of words or these sorts of images.Justice Kagan then brought up the government's strongest argument for continuing to subject broadcast television programmers to standards of decency that are not required of cable programmers - the "safe haven" justification - that viewers should have some television channels where they can be sure they will not be exposed to indecency:
MR. PHILLIPS: Well, maybe, maybe not. We don't know. All we know is that for a period of
50 years, nothing happened. So, the idea --
CHIEF JUSTICE ROBERTS: Well, no, we know.
JUSTICE SCALIA: Yes, that's right.
CHIEF JUSTICE ROBERTS: I mean, we can -- it was not the case from 1927 till whenever you -- what,
1970-something -- that nudity commonly appeared on broadcast television or the various words we're dealing with here commonly appeared. So, it seems a bit much to say, well, they didn't bring any cases for that period. There were no cases to be brought.
JUSTICE KAGAN: It seems to work and it -- it seems to be a good thing that there is some safe haven, even if the old technological bases for that safe haven don't exist anymore [Huhn - because on cable there is no longer a problem of "frequency interference."]. So, why not just keep it as it is?In response to a question from Justice Alito, Phillips indicated that his clients were only asking that the indecency standards be lifted for television broadcasts, not for radio.
MR. PHILLIPS: As we sit here today, literally facing thousands and thousands of ginned-up computer-generated complaints that are holding up literally hundreds of TV license renewals, so that the whole system has come to a screeching halt because of the difficulty of trying to resolve these issues. So, to say that the system is working well, it seems to me, at least from the broadcasters' perspective, is to say -- is to suggest that's just not true.
Chief Justice Roberts returned to the subject of the "safe haven," stating that "there are 800 channels" where people can go for indecency, but only a few that the law subjected to decency standards. Phillips responded that under the Constitution one speaker - one medium of communication - could not be treated differently than another. Roberts said that if that's true "its not a legitimate objective to have a safe harbor." Phillips noted that "there are on of cable networks that are aimed exclusively at children" and that "there are five, six, eight stations that, I guarantee you, you will see -- where you'll see none of that [indecent] language." Phillips also suggested that the United States could create a broadcast channel or network that would observe standards of decency. In other words, Phillips was arguing that decency standards were not "necessary and that there were "less restrictive alternatives" to those kinds of laws.
Justice Alito asked what kind of programming viewers could expect to see on Fox if the decency standards were overturned. Mr. Phillips responded that their advertisers and audiences would "insist on some measure of restraint." Obviously doubtful of this response, Justice Breyer and Justice Alito asked Phillips that if Fox did not intend to broadcast indecency why it would even bother to challenge the decency standard. At a later point Justice Kagan pointed out that she could detect a difference between the kinds of programs shown on basic cable and those shown on other channels, and other justices chimed in in agreement.
Attorney Seth Waxman began his argument for ABC by arguing that the FCC had been inconsistent in its application of its indecency standards by allowing the showing of Private Ryan but not the "Nude Awakening" episode of NYPD Blue. Justice Breyer expressed his skepticism about whether it was so unreasonable to treat those programs differently, and asked Waxman why ABC didn't simply show the NYPD episode an hour later after 10:00 p.m., as the FCC would have allowed.
Waxman then made a tactical mistake:
MR. WAXMAN: I challenge the commission to identify a single decision of the commission issued before this was broadcast in 2003 ins which it had sanctioned [ed. - as in "punished] any display of nudity, and I'm going all the way back to 1978.Justice Breyer eventually observed that he had found a total of 17 incidents of nudity on broadcast television previous to this that had not been punished. Chief Justice Roberts then stated: "That's what you've got over 85 years."
JUSTICE SCALIA: How many displays of nudity were there that went unsanctioned?
MR. WAXMAN: Well, for -- I don't -- I can't tell you, but I can tell you based on --
JUSTICE SCALIA: Yes, well, I mean, if there are very few, it's not a very powerful argument.
Waxman then moved the the most memorable part of this oral argument, when he pointed out to the Court the statutes in the courtroom with bare breasts and buttocks:
MR. WAXMAN: "Right over here, Justice Scalia. (Laughter.) 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 --Waxman contended that the FCC indecency rule was unconstitutionally vague, but he declined the invitation of the justices to propose an indecency standard that would be constitutional. Instead, he listed four actions that the FCC might take:
JUSTICE SCALIA: Me neither. (Laughter.)
1. Revert to the "emphatically narrow enforcement regime" that it had followed before 2004;
2. Convert the "multi-factor test" in which elements are identified into a more specific standard indicating how those factors should be balanced:
3. Apply the factors consistently in a number of cases;
4. Use more specific language in its decency guidelines.
Solicitor General Donald Verrilli returned to the podium in rebuttal, noting that in the 1980s shock jocks like Howard Stern and Bubba the Love Sponge were sponsored by advertisers, and that they had sparked a "race to the bottom."
Justice Kagan turned Verrilli's attention to the problem of vagueness and selective enforcement of the indecency standards:
JUSTICE KAGAN: It's like nobody can use dirty words or nudity except for Steven Spielberg -- (Laughter.)Verrilli returned to the point he made at the beginning of oral argument that the incidents of indecency were extremely rare, and that therefore the problem of vagueness, though real, was not significant. Delayed bleeping technology could be used for live programming to deal with recurring problems such as "fleeting expletives" on awards shows or "wardrobe malfunctions" at halftime. Justice Scalia helpfully added, "Maybe ... you shouldn't interview these people."
Chief Justice Roberts announced, "The case is submitted."
My impression is that the Solicitor General won this argument. The justices were far more skeptical of his opponents than they were of him, and they seem poised to reaffirm Pacifica under the new rationale that regulation of indecency on broadcast television networks preserves a "safe haven" for parents and viewers.
Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.