Last week, broadcast lawyers made their Supreme Court oral arguments challenging the government’s apparent fear of naked buttocks and breasts, while high above them, the walls of that neoclassical temple to Justice were adorned with half-naked figures displaying the same unveiled equipment, as it were. The irony was not lost on the lawyers.
It reminded us a little of the Justice Department under former Attorney General John Ashcroft hanging blue drapes to cover two large semi-clad art deco statues back in 2002. It would be funny if it weren’t so sad.
The government needs to get its knickers untwisted over its fixation with naughty bits, as Monty Python would put it, and allow broadcasters at least a little more room to navigate the digital world.
It is likely too much to ask for the Supreme Court to rule that broadcasters should have the same full First Amendment rights as newspapers or magazines or cable or satellite or the Internet or the "Cool, He- Man Secret Pirates Club" newsletter produced by third-graders on a laptop after school.
Several of the Justices seemed to indicate their unease at a too-free media in oral argument last week. Associate Justice Antonin Scalia, for example, said he thought that a "modicum of civility," which he appeared to associate with not allowing swearing or nudity in the so-called safe harbor—6 a.m. to 10 p.m.—was a reasonable quid pro quo for holding a broadcast license. And Justice Anthony Kennedy said he thought there was some symbolic value in different First Amendment standards for broadcast TV than its competition. Perhaps, but what it symbolizes for us is a failure to recognize major changed circumstances in the media, like the rise of unregulated media right next door on the cable lineups or in over-the-top services coming to a TV set or smartphone near you, if the Federal Communications Commission has anything to say about it.
Of course, broadcasters, at least those represented by the National Association of Broadcasters, are not looking for full First Amendment freedom because they recognize the public interest quid pro quo that is some shield from the FCC’s acquisitive gaze when it comes to their spectrum. They just want a less arbitrary standard and a better sense from the court of what the FCC is going to find indecent at any given moment. On that score, several Justices indicated they were in agreement.
Justices Elena Kagan and Ruth Bader Ginsburg were the most vocal in their puzzlement, though as with oral argument in general, judges may be playing devil’s advocate to test the strength of the argument or the arguer.
But both Justices seemed as confused as broadcasters about the fact that the FCC would find seven seconds of naked butt on NYPD Blue indecent, but not 40-plus seconds of nudity, including full frontal nudity, in Catch-22. Ginsburg said that smacked—she used a gentler term—of arbitrariness. Kagan suggested that by the FCC’s reckoning, the only person who gets to swear on TV is Steven Spielberg. But even Kagan said that the government had more “leeway” on indecency given broadcasters’ government license.
Recognizing that the court is unlikely to free broadcasters of indecency regs entirely (though Fox’s lawyer tried to make that case), ABC’s attorney said that the court could at least require the FCC to apply a consistent test, and be required to better explain itself. That would be half a loaf, but it’s at least more than the agency is doing now.
We continue to advocate for full First Amendment rights for broadcasters because of their status, confirmed by FCC and independent studies, as the primary local news and information medium. While the FCC generally makes an exception for news broadcasts, there is not carve-out from indecency for those broadcasts, and the definition of what is and isn’t a news show can be another gray area. So, while the First Amendment could not be clearer about the government not abridging the freedom of speech or the press, the indecency rules do both, and ostensibly to protect children, who would be better served by the government focusing instead on how they can ultimately get jobs, health care and retirement benefits.
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