Supreme Court to consider broadcast standards
http://dervishcom.blogspot.com/2012/01/supreme-court-to-consider-broadcast.html
WASHINGTON – The George Carlin "filthy words" monologue that changed the law for broadcasters more than three decades ago went on for 12 minutes and contained seven expletives the comedian kept repeating.
The episodes at the heart of a new case testing government regulation of indecency involved one-time expletives by Cher and Nicole Richie at Fox Television's Billboard Awards and a brief shot of a woman's naked posterior on ABC's NYPD Blue.
Would the varying duration make a difference when heard or seen by a child? That is one of the questions at the heart of a case before the Supreme Court on Tuesday. A broader First Amendment issue is whether broadcasts should continue to bear greater regulation than cable TV.
Lawyers for Fox Television Stations say the Supreme Court should reverse its long-standing view that broadcast programming is subject to tougher rules than cable because of the scarcity of the airwaves and broadcast TV's pervasiveness in American life.
In that regard, as well as simply what gets on TV, Tuesday's dispute could be one of the most consequential of the term. While sexual situations and coarse language have become a staple of the airwaves, certain expletives remain forbidden.
The networks are challenging sanctions for outbursts of those expletives and fleeting nudity before 10 p.m. when children are most likely to be watching. They say federal policy, which permits profanity in some situations, such as TV broadcast of the movie Saving Private Ryan, is unconstitutionally vague and violates free speech rights.
The Obama administration counters that the networks are engaged in "an audacious attempt" to overturn the long-standing view of Congress, "upon which generations of parents have relied," that children should be shielded from indecent language.
"It's hard to find parents these days who do not agree that a lot of the stuff on television is needlessly eye-opening for their children," says lawyer Robert Sparks, representing the Parents Television Council. "They resent that they have to sit next to their children or have the technological know-how to screen what they see."
The council is siding with the Federal Communications Commission and its anti-profanity policy. Among the groups backing the networks is the Pennsylvania Center for the First Amendment, which contends the FCC has never shown that exposure to indecent language hurts children. Robert Richards, lawyer for the First Amendment group, says the FCC cannot assert that profanity is harmful in some programs but not in others: "What strains the Constitution, as well as logic … is the fact that de facto exemptions (are) provided to news and artistic expression," he told the court in a brief.
Tuesday's dispute will bring the Supreme Court back to the case of the legendary Carlin, who died in 2008 and whose well-known monologue deliberately repeated words that "you couldn't say."
The midday airing of his satiric piece, protested by a man listening with his young son to a Pacifica Foundation radio station in New York City, led to the court's 1978 decision allowing FCC sanction of broadcasters for indecent material.
The court stressed that broadcast media have a "pervasive presence in the lives of all Americans" and that their programs are "uniquely accessible to children." Yet the justices said in FCC v. Pacifica Foundation that they were not ruling on the broadcast of "an occasional expletive."
The new FCC policy under challenge was largely a response to celebrity outbursts, including at the 2003 Golden Globes on NBC when U2 lead singer Bono accepted an award and said, "This is really, really (expletive) brilliant."
The new FCC rules forbid even the one-time use of language that "in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium."
In the Billboard Awards incident involving Cher, which occurred in 2002, she waved a lifetime achievement trophy and said, "People have been telling me I'm on the way out every year, right? So (expletive) 'em."
The following year at the same awards show, TV star Nicole Richie invoked expletives as she joked about her role in The Simple Life and the difficulty of removing cow manure from a Prada purse.
When the dispute over the incidents first came to the Supreme Court three years ago, it was not on the First Amendment issue but rather on a statutory question related to FCC authority.
By a 5-4 vote, along ideological lines with conservatives in control, the justices endorsed the FCC ban on the one-time use of expletives associated with sexual or excretory functions.
Justice Clarence Thomas, one of the five in the majority, wrote a separate opinion criticizing the court's long-standing rationale that allows more regulation of broadcast TV than cable because of the scarcity of the airwaves.
In Tuesday's case, the FCC is appealing a ruling by the New York-based U.S. Court of Appeals for the 2nd Circuit that the anti-profanity policy is unconstitutionally vague because it leads to arbitrary enforcement and leaves networks not knowing what material would be sanctioned.
In the FCC's appeal, U.S. Solicitor General Donald Verrilli emphasizes that certain expletives have long been the focus of the FCC's indecency enforcement efforts and that broadcasters have long been aware they are forbidden.
Regarding the NYPD Blue episode that showed a woman's buttocks for seven seconds, Verrilli says the commission "long ago warned broadcasters that the televising of nudes might well raise a serious question of unlawful indecency."
He acknowledges that the FCC has not treated all nudity as indecent but tells the court, "The voyeuristic images contained in ABC's broadcast cannot reasonably be analogized (as ABC suggests) to a scene involving nude concentration camp prisoners in a broadcast of the film Schindler's List."
Lawyer Seth Waxman, representing ABC, argues that the FCC lacks the legal grounds to ban brief displays of nudity. He says that unlike in 1978, parents trying to shield their children can use the V-chip and other blocking technologies.
In defending Fox Television, lawyer Carter Phillips makes the broader argument that the media market has changed so dramatically that no reason exists to treat broadcast different from cable under the First Amendment.
"The court should announce firmly and finally that the time for treating broadcast speech differently from all other communications is over," Phillips says. "To the average American viewer, broadcasting is just one source among hundreds in a media-saturated environment, a mere press of a button on the remote control away from other, fully protected sources."
The episodes at the heart of a new case testing government regulation of indecency involved one-time expletives by Cher and Nicole Richie at Fox Television's Billboard Awards and a brief shot of a woman's naked posterior on ABC's NYPD Blue.
Would the varying duration make a difference when heard or seen by a child? That is one of the questions at the heart of a case before the Supreme Court on Tuesday. A broader First Amendment issue is whether broadcasts should continue to bear greater regulation than cable TV.
Lawyers for Fox Television Stations say the Supreme Court should reverse its long-standing view that broadcast programming is subject to tougher rules than cable because of the scarcity of the airwaves and broadcast TV's pervasiveness in American life.
In that regard, as well as simply what gets on TV, Tuesday's dispute could be one of the most consequential of the term. While sexual situations and coarse language have become a staple of the airwaves, certain expletives remain forbidden.
The networks are challenging sanctions for outbursts of those expletives and fleeting nudity before 10 p.m. when children are most likely to be watching. They say federal policy, which permits profanity in some situations, such as TV broadcast of the movie Saving Private Ryan, is unconstitutionally vague and violates free speech rights.
The Obama administration counters that the networks are engaged in "an audacious attempt" to overturn the long-standing view of Congress, "upon which generations of parents have relied," that children should be shielded from indecent language.
"It's hard to find parents these days who do not agree that a lot of the stuff on television is needlessly eye-opening for their children," says lawyer Robert Sparks, representing the Parents Television Council. "They resent that they have to sit next to their children or have the technological know-how to screen what they see."
The council is siding with the Federal Communications Commission and its anti-profanity policy. Among the groups backing the networks is the Pennsylvania Center for the First Amendment, which contends the FCC has never shown that exposure to indecent language hurts children. Robert Richards, lawyer for the First Amendment group, says the FCC cannot assert that profanity is harmful in some programs but not in others: "What strains the Constitution, as well as logic … is the fact that de facto exemptions (are) provided to news and artistic expression," he told the court in a brief.
Tuesday's dispute will bring the Supreme Court back to the case of the legendary Carlin, who died in 2008 and whose well-known monologue deliberately repeated words that "you couldn't say."
The midday airing of his satiric piece, protested by a man listening with his young son to a Pacifica Foundation radio station in New York City, led to the court's 1978 decision allowing FCC sanction of broadcasters for indecent material.
The court stressed that broadcast media have a "pervasive presence in the lives of all Americans" and that their programs are "uniquely accessible to children." Yet the justices said in FCC v. Pacifica Foundation that they were not ruling on the broadcast of "an occasional expletive."
The new FCC policy under challenge was largely a response to celebrity outbursts, including at the 2003 Golden Globes on NBC when U2 lead singer Bono accepted an award and said, "This is really, really (expletive) brilliant."
The new FCC rules forbid even the one-time use of language that "in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium."
In the Billboard Awards incident involving Cher, which occurred in 2002, she waved a lifetime achievement trophy and said, "People have been telling me I'm on the way out every year, right? So (expletive) 'em."
The following year at the same awards show, TV star Nicole Richie invoked expletives as she joked about her role in The Simple Life and the difficulty of removing cow manure from a Prada purse.
When the dispute over the incidents first came to the Supreme Court three years ago, it was not on the First Amendment issue but rather on a statutory question related to FCC authority.
By a 5-4 vote, along ideological lines with conservatives in control, the justices endorsed the FCC ban on the one-time use of expletives associated with sexual or excretory functions.
Justice Clarence Thomas, one of the five in the majority, wrote a separate opinion criticizing the court's long-standing rationale that allows more regulation of broadcast TV than cable because of the scarcity of the airwaves.
In Tuesday's case, the FCC is appealing a ruling by the New York-based U.S. Court of Appeals for the 2nd Circuit that the anti-profanity policy is unconstitutionally vague because it leads to arbitrary enforcement and leaves networks not knowing what material would be sanctioned.
In the FCC's appeal, U.S. Solicitor General Donald Verrilli emphasizes that certain expletives have long been the focus of the FCC's indecency enforcement efforts and that broadcasters have long been aware they are forbidden.
Regarding the NYPD Blue episode that showed a woman's buttocks for seven seconds, Verrilli says the commission "long ago warned broadcasters that the televising of nudes might well raise a serious question of unlawful indecency."
He acknowledges that the FCC has not treated all nudity as indecent but tells the court, "The voyeuristic images contained in ABC's broadcast cannot reasonably be analogized (as ABC suggests) to a scene involving nude concentration camp prisoners in a broadcast of the film Schindler's List."
Lawyer Seth Waxman, representing ABC, argues that the FCC lacks the legal grounds to ban brief displays of nudity. He says that unlike in 1978, parents trying to shield their children can use the V-chip and other blocking technologies.
In defending Fox Television, lawyer Carter Phillips makes the broader argument that the media market has changed so dramatically that no reason exists to treat broadcast different from cable under the First Amendment.
"The court should announce firmly and finally that the time for treating broadcast speech differently from all other communications is over," Phillips says. "To the average American viewer, broadcasting is just one source among hundreds in a media-saturated environment, a mere press of a button on the remote control away from other, fully protected sources."
