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2011-2012 Supreme Court Term: Oral Argument in Fox v. F.C.C.

by Professor Will Huhn on March 4, 2012

in Constitutional Law,Freedom of Speech,Wilson Huhn

I described the First Amendment issues that are at stake in this case in yesterday's post. Today's post summarizes what occurred during the government's presentation at oral argument in FCC v. Fox on January 10, 2012. The transcript of oral argument is available here.

Solicitor General Donald B. Verrilli argued this case on behalf of the FCC.  Attorneys Carter G. Phillips and Seth P. Waxman represented the Fox and ABC television networks respectively.  This post describes Verrilli's presentation.

General Verrilli commenced his argument by noting that when the government grants a broadcaster the right to exclusive use of a television broadcast frequency, the broadcaster must accept the fact that there will be conditions attached to that grant.  One such condition that Congress and the agency might impose, argued Verrilli, is "that they refrain from broadcasting indecent material when children are most likely to be in the audience."

Verrilli had no sooner made this point when Justice Kagan challenged him by asking how far the F.C.C. could go in regulating broadcasters:

But, General Verrilli, it seems to me that this contract notion of yours can only go so far. I mean, if the idea is just we gave them something, now they have to do whatever we say, you wouldn't accept that. So, the question is why is this condition appropriate when many other conditions would not be appropriate?

Verrilli responded that the F.C.C.'s indecency rule was appropriate because it was customary – the FCC had regulated broadcasters for indecency since the 1920s when the Radio Act was adopted.  Verrilli reminded the Court that even though television stations were mainly carried on cable, radio was still broadcast over the airwaves, and that "a lot of the most vile and lewd material really is in radio."  This was, in effect, a mitigation argument: whatever the Court decided to do about indecency on television, Verrilli wanted to ensure that the decency regulations should remain in full force as to radio.

Verrilli conceded that most television reception is through cable rather than over air, but he argued that "broadcast" television is even more pervasive now than it was when it was broadcast through the airwaves – that it enters more homes and is more accessible to children and unwilling listeners.  He characterized the broadcasters' argument as "very different" from the normal reason for overturning precedent, in the sense that Fox and ABC were contending that it made no sense to continue to regulate indecency on the broadcast channels since there were so many cable channels that could show whatever indecent material they chose at any time of the day.  [Huhn - I can't help comparing the broadcasters' argument to a teenager's lamentable appeal to fairness, "All the other kids get to ...."]  Verrilli says that this amounts to a claim that indecency regulations are now "futile."  Verrilli says that regulation of the broadcast channels is not futile because it provides a "safe haven" of decent programming for families on cable.

Justice Ginsburg turned Verrilli's attention to the principal problem with the decency regulations: the fact that  they are so hard to apply in a consistent manner.  Why, she asked, was this brief scene of nudity prohibited during daytime hours, while broadcasts of "Private Ran and "Schindler's List" were permitted?  It gives "the appearance of arbitrariness," she said.  Verrilli essentially admitted that there were difficult cases, but claimed that they were few in number – that only a vanishingly small proportion of scenes or episodes on television presented a hard case or fell into a gray area of enforcement.  Verrilli added that the only way to avoid problems of vagueness would be to draw bright lines outlawing the speaking of certain words or the showing of certain body parts no matter the context.  He defended the use of a guidelines on indecency that were "contextual" as better policy and as more consistent with existing precedent like Pacifica.  [Huhn - in its 2009 ruling in FCC v. Fox the Supreme Court noted with approval that Pacifica endorsed a context-based approach.]

Justice Kagan and Justice Ginsburg continued to press Verrilli on the issue of vagueness.  He responded that even though there were difficult cases scenes of nudity were "exceedingly, exceedingly rare" on broadcast television because of the indecency regulations.

Asked about whether there was a less restrictive alternative to decency regulations, General Verrilli was dismissive of V-chip technology:  "It's been around for more than a decade … It hasn't taken."

Justice Kennedy asked whether there was, at this point, a meaningful difference between "broadcast" and "cable" television channels, in light of the fact that they are all delivered to people's homes via cable.  Justices Kagan and Alito echoed this concern.  General Verrilli pointed out that federal law requires cable operators to carry the broadcast stations and to give them a preferred channel position, and that this distinguished broadcast stations from cable programmers.

Justice Scalia, as has become his custom, did not ask a question but simply expressed his opinion that the government could require broadcasters to observe "a certain modicum of decency," just as it could require "a certain modicum of dress for the people that attend this Court."

Members of the Court then began to observe that standards of decency were changing, and Verrilli agreed but noted that the question was whether broadcast television should be permitted to present nudity and bad language as appropriate.

Tomorrow's post will continue with the description of oral argument in FCC v. Fox.

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