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What Role Should FCC Play in Policing Profanity on the Airwaves?

January 10, 2012 at 12:00 AM EDT
The Supreme Court heard arguments Tuesday in a case involving freedom of speech on broadcast television and the constitutional debate over federal regulation of indecency. Jeffrey Brown discusses the arguments and the potential effects for the FCC with Marcia Coyle of The National Law Journal.
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JUDY WOODRUFF:  The high court takes a look at free speech and TV indecency.

Jeffrey Brown is in charge of that story.

JEFFREY BROWN: Cher, Nicole Richie, “Saving Private Ryan,” and the PBS documentary “The Blues,” what do they all have in common? Well, they have been on broadcast television, where they have used or included profanity, and they’re all now part of a constitutional debate over federal regulation of indecency in a case argued before the Supreme Court today.

Marcia Coyle of The National Law Journal was there and is back with us tonight.

And welcome back.

MARCIA COYLE, The National Law Journal: Thanks, Jeff.

JEFFREY BROWN: All right, so this is one — as opposed to some we talk about, this is one everybody sort of understands quickly.

MARCIA COYLE: Absolutely.

JEFFREY BROWN: What can be on television? What’s indecency in the eyes of the FCC?

MARCIA COYLE: All right, the Federal Communications Commission defines indecency as material that describes or depicts sexual or excretory organs or activities in a patently offensive manner as judged by contemporary community standards.

JEFFREY BROWN: It sounds so easy.

MARCIA COYLE: It does.

(LAUGHTER)

MARCIA COYLE: In fact, the FCC brought the case to the Supreme Court today because a lower federal appellate court found that the definition was so vague that it violated the due process and First Amendment rights of broadcast medium.

JEFFREY BROWN: So, bring us then — what are the facts of this case?

MARCIA COYLE: All right.

JEFFREY BROWN: I mentioned some of these people: Cher, Nicole Richie.

MARCIA COYLE: You did, yes.

JEFFREY BROWN: Yes.

MARCIA COYLE: And they are in this case — or the stations are in this case.

JEFFREY BROWN: Right. Right.

MARCIA COYLE: The lower federal appellate court was ruling on challenges brought by FOX television and ABC.

FOX was found to violate the indecency policy because it aired in 2002 and 2003 the Billboard Music Awards. In the 2002 show, Cher used the F-word. In the 2003 show, Nicole Richie used the F- and the S-word.

ABC was a challenge here, because it found that — the FCC found that it violated the policy because of a 2003 episode of “NYPD Blue” in which a nude woman was shown from the rear entering a shower.

JEFFREY BROWN: Okay. So that brings us up. And then a lower court says, these are vague.

What happened in court today? You had a lively time today in court.

MARCIA COYLE: So, it was a lively argument.

And the issue before the court is exactly what came out of the lower federal appellate court. And that is, is this policy unconstitutionally vague? Justice Ginsburg went right at it by saying to Solicitor General of the United States Donald Verrilli…

JEFFREY BROWN: Who’s arguing on behalf of the FCC in this case.

MARCIA COYLE: Right. He’s defending the policy.

JEFFREY BROWN: Yes.

MARCIA COYLE: She said that the major objection here seems to be that one can’t tell what is indecent and what is not.

She said vulgar words in showing the movie “Saving Private Ryan” is okay, but vulgar words used by blues musicians in a PBS documentary is not. Nudity shown in the movie “Schindler’s List” is okay, but it’s not okay in the “NYPD” episode.

So, Mr. Verrilli, he made basically two arguments here. He said, well, one, the policy is not vague, because, he said, it is context-driven. And when the FCC is looking at each instance in terms of its overall context, you’re never going to have perfect clarity.

And his second key argument was that the broadcast medium — and we’re not talking about cable, Jeff. Let’s make this clear.

JEFFREY BROWN: We should make it very clear we’re talking about just over-the-air broadcast.

MARCIA COYLE: Public air, right, and not satellite TV either.

He said, the broadcast medium has benefited for years from free and exclusive use of the public airwaves. And in return for that, he said, the — in return for a government license to do that, they have an enforceable obligation to create a safe haven for parents who do not want their children to be exposed to vulgar language or nudity.

JEFFREY BROWN: All right, and then the argument of the broadcasters?

MARCIA COYLE: The broadcasters, of course, feel that this policy is vague , for the very examples Justice Ginsburg, and it’s inconsistent, they said.

But they’re arguing for something a little more here. They’re saying that the indecency policy is hopelessly out of date. They point to the fact that broadcast medium is no longer, as the Supreme Court found in 1978 in the case involving George Carlin’s filthy words, that the broadcast medium could be regulated for indecency because it was so pervasive for all Americans and so uniquely accessible to children.

So the broadcast medium here is telling the court, this is out of date. There’s cable. There’s satellite.

The chief justice…

JEFFREY BROWN: An explosion of media…

MARCIA COYLE: Absolutely.

JEFFREY BROWN: … which is why we have to limit this and make clear it’s just about broadcast.

MARCIA COYLE: Right. Chief Justice Roberts said, though, that in a way that cuts against the broadcaster — the broadcast medium’s arguments, because, if this is so pervasive, there’s so much more now, then maybe we need a few channels that provide a safe haven.

The justices also went into questions about V-chip technology. Justice Kennedy said, well, you know what about V-chip? Isn’t that sufficient?

JEFFREY BROWN: Which allows parents to…

MARCIA COYLE: To monitor — or to block.

JEFFREY BROWN: Right.

MARCIA COYLE: And Mr. Verrilli for the FCC said it’s really inadequate technology. It won’t help you on live television.

Also, Justice Kennedy raised the question of whether, you know, there’s a symbolic value to American society to have a segment of television that isn’t vulgar. And Justice Scalia, who showed, I think, his hand almost immediately, said, sign me up for Justin Kennedy’s symbolism.

(LAUGHTER)

JEFFREY BROWN: It’s interesting. It sounds as though justices watch television, right?

MARCIA COYLE: They do.

JEFFREY BROWN: These black-robed — shrouded in those black robes, but they go home and actually watch television. They knew what they were talking about.

MARCIA COYLE: Right.

Justice Ginsburg said, for example, that the language used — that children today wouldn’t be shocked by the language used today as children a generation ago would be.

JEFFREY BROWN: And, briefly, I understand that Justice Sotomayor took herself out of the case, recused herself.

MARCIA COYLE: Yes, she did.

JEFFREY BROWN: So there is the possibility — that’s because she was involved in the lower case?

MARCIA COYLE: Right. She sat on the lower federal appellate court when this case was moving through that court.

JEFFREY BROWN: But that means there’s the potential for a tie.

MARCIA COYLE: There always is when there are eight — only eight justices.

And I have to say that it did seem as though there could be a split decision here.

JEFFREY BROWN: All right, Marcia Coyle, as always, thanks so much.

MARCIA COYLE: My pleasure.