This column by ACRU Senior Legal Analyst Ken Klukowski was published January 11, 2012 on The Washington Examiner website.
Culture warriors took the upper hand against liberals and libertarians alike at the Supreme Court this week, as a moderate justice joined with conservatives and a liberal presidential administration to take a stand for family values.
Do Federal Communication Commission (FCC) regulations banning profanity and nudity on primetime broadcast television violate the First Amendment? Broadcasters argued that the bans are unconstitutional, and the Supreme Court will forever change America’s culture if it agrees in FCC v. Fox Television.
But the Court apparently disagrees. Justice Anthony Kennedy–the moderate both sides focused on during argument–said that just because you can’t completely block indecent content from TV and radio doesn’t mean you shouldn’t try.
Kennedy announced, “There’s value . . . in having a higher standard. . . It’s an important symbol for our society that we aspire to a culture that’s not vulgar in [at least] a very small segment [of broadcast channels].”
These regulations restrict indecent content from 6am until 10pm, disallowing sexual content on broadcast TV (not cable) and profane words on TV and radio. Fox Television, NBC, ABC, and others argued these regulations cannot stop all unwholesome content, and therefore must be struck down for being too vague and abridging free speech.
Carter Phillips argued for the broadcasters that, although television has been around for decades, no indecency enforcement actions were pursued before 1975. Chief Justice John Roberts smacked that down, replying that broadcasters did not attempt such racy content in the 1950s.
Kennedy then tipped his hand that he might side with the FCC, telling Phillips that if the Court strikes down these regulations, “Isn’t the inevitable consequence that . . . every celebrity or want-to-be celebrity that is interviewed can feel free to use [curse] words? We will just expect it as a matter of course, if you prevail.”
Justice Stephen Breyer also dropped a hint. Phillips was arguing that the Court should overrule a 1978 case, FCC v. Pacifica, where the Court held that the FCC had power not only to block obscenity (content with no redeeming social value that only has unwholesome appeal, such as graphic pornography–which is not protected by the First Amendment), but also to regulate indecent content that falls short of obscenity and thus still enjoys some First Amendment protection.
The Court held that protecting children from indecent material is a compelling public interest, and that citizens can ensure such material does not enter their homes. Breyer insisted the Court need not overrule Pacifica, meaning that he’ll either side with the FCC or grant only part of what the broadcasters want.
Justice Ruth Bader Ginsburg seemed sympathetic to the networks, asking Solicitor General Donald Verrilli (defending the FCC) how government can distinguish decent content from indecent. Sometimes nude imagery could be part of art, for example. Verrilli responded that courts must look to the context (such as an art display versus a voyeuristic sex scene), admitting that examining contextual factors defies a simple, one-size-fits-all rule.
Roberts agreed. When another of the broadcasters’ lawyers–former Clinton Solicitor General Seth Waxman–was arguing, Roberts said a child knows the difference between an adult spitting out profanity after he hits his thumb with a hammer, versus using the same word in casual conversation. “Government’s effort is to try to understand context.”
Despite many elites from both sides of the aisle thinking the challengers would prevail, it now looks like Verrilli might carry the day for the FCC, creating the unusual situation where the Obama Justice Department scores a victory for family values. A decision is expected within months.