Rights v. Responsibilities

Published: January 13, 2012

By Jim Lichtman
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Why is it okay for network television to broadcast expletives in the Steven Spielberg movie, Saving Private Ryan, but wrong to broadcast expletives from Cher at an awards show broadcast?

Why is it okay for the FCC to object to nudity in an episode of NYPD Blue, but not in airing nudity from another Spielberg classic, Schindler’s List?

These are just some of the questions facing the current Supreme Court in oral arguments this past Tuesday looking into “the government’s power to regulate expletives and nudity on the airwaves” in the case of FCC v. FOX television, writes USA Today.

“When the lively session was over, there was no clear signal that a majority of the justices would rule that federal regulators acted unconstitutionally in sanctioning certain words and nudity, as a lower appeals court had.

“ ‘All we are asking for, what the government is asking for,’ Chief Justice John Roberts said, ‘is a few channels where you can say, ‘I’m not going to … hear the ‘S’ word, the ‘F’ word.’ ”

“The case arises from Federal Communications Commission findings against expletives uttered by Cher and by Nicole Richie at Fox Television’s Billboard Awards and a brief shot of a woman’s buttocks on ABC’s NYPD Blue.

“Broadcasters say the FCC policy is unconstitutionally vague and violates free-speech rights,” USA Today said. “Fox Television Stations also asks the court to abandon a rule that allows more government regulation of broadcast, compared with cable, because of the scarcity of the airwaves and the pervasiveness of broadcast TV and radio.”

It’s an interesting case that pits the right of free speech against, what some see as, the government’s responsibility to protect the well-being of all with regards to content that likely would be deemed inappropriate for underage children by most parents.

In a New York Times story, “Justice Anthony Kennedy suggested and then rejected the idea that parents could use technology like a V-chip instead of relying on the government for protection. ‘There’s the chip that’s available,’ he said. ‘And of course, you ask your 15-year-old, or your 10-year-old, how to turn off the chip. They’re the only ones that know how to do it.’ ”

“These are public airwaves,” Justice Antonin Scalia said, and “the government is entitled to insist upon a certain modicum of decency. This has a symbolic value,” Scalia added, “just as we require a certain modicum of dress for the people that attend this court.”

Justice Samuel Alito Jr. observed that “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.”

While a majority of the court appears to come down on the side of government regulation, there was more than a little push back regarding how the FCC uses its authority.

Justice Ruth Bader Ginsburg said, “One cannot tell what’s indecent and what isn’t,” referring to the FCC as “the censor.”

The most recent appointment, Justice Elena Kagan, was more direct. “The way that this policy seems to work,” she said, “it’s like nobody can use dirty words or nudity except for Steven Spielberg.”

Arguing for the FCC, United States Solicitor General, Donald B. Verrilli Jr., said “we would concede that there is not perfect clarity” in the FCC’s approach, but that the commission looks closely at the context in which both nudity and expletives are used.

“Justice Ginsburg wondered whether restricting swearing made sense in a society in which ‘expletives are in common parlance,’ ” the Times said.

Verrilli said that may be true, but added, “It’s one thing when your 13-year-old brother is saying it to you, or some bully in the schoolyard’s saying it to you. It’s another when it’s presented to you in this medium as an appropriate means of communication.”

Perhaps the funniest and most striking moment in the oral debate came from the attorney representing ABC, Seth Waxman, a former solicitor general, himself, who complained about the vagueness of the FCC’s standards referencing the opening ceremonies of the Olympics, “which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks.”

“There’s a bare buttock there, and there’s a bare buttock here,” Waxman said, pointing around the courtroom, adding, “I had never focused on it before.”

“Me neither,” Justice Scalia said.

Ruling in the case of the FCC v. Fox Television Stations is expected late June.

Stay tuned.


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