Instant Analysis: Oral Argument in FCC v. Fox

January 11th, 2012

The transcript is here. I don’t have much time but I will focus on some exchanges of interest.

RBG isn’t pleased with the discretion of the FCC determining what is kosher and what is unkosher.

JUSTICE GINSBURG: General Verrilli, I took 24 it from the briefs and what the FCC has been doing that 25 the major objection is that one cannot tell what’s1 indecent and what isn’t; that it’s FCC, the censor, 2 that’s saying “Private Ryan” is okay, “Schindler’s List” 3 is okay, but “NYPD Blue” is not. And I do think that 4 that is the major objection, that we have a — a 5 government agency that is going to make decisions about 6 when nudity is okay and when it isn’t. You can’t do it 7 in terms of time because the “NYPD” was 7 seconds and 8 another broadcast, “Catch-22,” was 40 seconds. 9 So it’s — it’s the appearance of 10 arbitrariness about how the FCC is defining indecency in 11 concrete situations. That I think is the nature of 12 the -­

Kagan talks about tushies:

JUSTICE KAGAN: — because it turns out that 12 nudity — that there really — sometimes it’s allowed as 13 to some body parts and sometimes it’s not allowed, and 14 the commission hadn’t really said anything about it for 15 50 years, and the length of time doesn’t seem to be 16 what’s indicative of anything, the kind of body part 17 doesn’t seem to be, with some limits, what is indicative 18 of anything, so that ABC just didn’t really know.

RBG also asks about Hair and Metropolis, the opera!

4 JUSTICE GINSBURG: If they did an excerpt 5 from “Hair,” could they televise that? 6 GENERAL VERRILLI: I think it would raise 7 serious questions. I think nudity is going to raise 8 very serious questions, and I think-­ 9 JUSTICE GINSBURG: In the opera in the 10 “Metropolis” case there’s a scene where a woman is seen 11 nude entering a bathtub. Suppose that were shown, that 12 scene from the opera.

AMK asked about the V-Chip.

JUSTICE KENNEDY: And then there’s — and 2 then there’s the chip that’s available. And of course, 3 you ask your 15-year-old, or your 10-year-old, how to 4 turn off of the chip. They’re the only ones that know 5 how to do it. 6 (Laughter. ) 7 That does point out the problem with the 8 V-Chip, Of course, the V-Chip is not new. It’s been 9 around for more than a decade, and the — the broadcasters 10 have tried to encourage uptake. The government has 11 tried to encourage uptake. But — but is your point 12 is that the chip technology works better if you have 13 this differentiation between broadcast and cable media?

Kennedy also asked about the v-chip during oral argument in Schwarzenegger v. EMA:

JUSTICE KENNEDY: V-Chips don’t work?
MR. MORAZZINI: I believe the V-Chip is limited to television, Justice Kennedy.

Justice Alito portends the death of broadcast TV in his desire not to reach the issue.

JUSTICE ALITO: What will happen when -­1 when we get to the point where — when there are only a 2 handful of people in the entire country who are still 3 receiving television programs via the airwaves?

JUSTICE ALITO: Well, broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8 track tapes.

MR. PHILLIPS: I hope that — I’m sure my client is not thrilled to have you say that.

JUSTICE ALITO: Well, I’m sure -­ (Laughter.)

JUSTICE ALITO: I’m sure your clients will

continue to make billions of dollars on their programs which are transmitted by cable and by satellite and by internet. But to the extent they are making money from people who are using Rabbit ears, that is disappearing. Do you disagree with that?

MR. PHILLIPS: No, I — it would be — you know, obviously not, because that’s why we are not uniquely accessible or uniquely pervasive.

JUSTICE ALITO: Yeah. So why not let this die a natural death? Or why do you want us to

intervene -­

Official – Subject to Final Review


This is an anti-Burkean (with respect to technology) Burkean (with respect to law) approach. He really does not want to decide this case on First Amendment grounds (kinda like his opinion in Brown v. EMA). The most anti-free speech Justice strikes again! He does not want to touch Pacifica.

NIno talks about decorum at the Court!

JUSTICE SCALIA: Sign — sign me up as 20 supporting Justice Kennedy’s notion that this has a 21 symbolic value, just as we require a certain modicum of 22 dress for the people that attend this Court and the 23 people that attend other Federal courts. It’s a 24 symbolic matter.

And what church is Nino going to where he hears cursing?

GENERAL VERRILLI: And we certainly agree, 5 Justice Scalia, with the point that was made in the 6 Court’s previous decision in this case, that — for 7 example, the words that are in the Fox broadcast, 8 teachers don’t use those words with students. You don’t 9 hear those words in churches or synagogues. You -­ 10 there are many, many contexts -­ JUSTICE SCALIA: Well, you do more and more. You do more and more, since there’s -­ (Laughter.)JUSTICE SCALIA: — since there’s so much of iton-­

Justice Ginsburg notes that people today just won’t be as shocked by bad language:

JUSTICE GINSBURG: You are saying that the 18 standard can still be symbolic, as Justice Scalia said. 19 We want the King’s English — for the very children 20 we’re talking about when they go on the street, when 21 they — their big brother says something to them, it 22 is — the words that were, the expletives, are in common 23 parlance today. I mean, it is — I think that 24 children — the children are not going to be shocked by 25 them the way they might have been a generation ago.

Carter Phillips wants the Court to overrule Pacifica!

JUSTICE ALITO: Well, you want us to 13 overrule a decision of this Court, Pacifica? 14 MR. PHILLIPS: Yes, Justice.

I think the Chief tips his hand a bit–both as a father, and as someone in favor of the government (substituting the pronoun “we” in place of the government):

CHIEF JUSTICE ROBERTS: But that cuts both 6 ways. People who want to watch broadcasts where these 7 words or expose their children to broadcasts where these 8 words are used, where there is nudity, there are 800 9 channels where they can go for that. All we are asking 10 for, what the government is asking for, is a few 11 channels where you can say I’m not going to — they are 12 not going to hear the S word, the F word. They are not 13 going to see nudity. So the proliferation of other 14 media it seems to me cuts against you.

CHIEF JUSTICE ROBERTS: It depends on what 5 audience you’re — you’re trying to get, and the 6 demographic. If you are trying to get an audience that 7 is older, maybe you will decide this is what is going to 8 attract them. They don’t want sanitized language. They 9 want to hear the — the — all those other words. If 10 your target is a much younger audience, maybe that will 11 happen. But the idea that you’re — the problem is 12 going to go away because you are going to be good as you 13 can be, that seems an odd way to analyze First Amendment 14 problems.

CHIEF JUSTICE ROBERTS: People understand -­ what you have demonstrated I think is that the context matters. People understand that, including children. When they hear a bad word when someone hits their thumb with a hammer, they understand that’s different than 2 having an adult stand in normal conversations and use 3 the words. And it seems to me that your position is 4 saying that the government cannot regulate with an 5 understanding of what takes place in the real world. 6 The government’s effort is to try to 7 understand the context. That’s why you get a different 8 rule in “Saving Private Ryan” than you get with Paris 9 Hilton and Nicole Richie. And what your argument seems 10 to be is they can’t take context into account.

This is akin to Alito’s opinion in Brown v. EMA the Chief joined.

I hope this quote makes its way into an episode of The Simpsons or Family Guy:

JUSTICE ALITO: But if we rule in your favor 18 on First Amendment grounds, what will — people who 19 watch Fox be seeing between 6:00 a.m. and 10:00 p.m.? 20 Are they going to be seeing a lot of people parading 21 around in the nude and a stream of expletives?

Breyer refers to Paris HIlton and Nicole Ritchie as “two women.” That is charitable.

We don’t have to overrule Pacifica. What 25 Fox was penalized for was two women on television who basically used a fleeting expletive which seems to be naturally part of their vocabulary. (Laughter.)

This passage from Scalia made me think of Lawrence v. Texas.

8 9 clear. JUSTICE SCALIA: Well, that’s not really I mean, if you want us to be really clear you ask the FCC to simply outlaw any fleeting use of 10 should 11 the F word or the S word, any shots of any nudity in any 12 movie, 13 notice 14 that’s 15 buttocks included; that would give you all of the that you need. Why don’t you propose that? Boy, certain as can be.

And the poor mountain time zone–their TV schedule is all wrong:

JUSTICE BREYER: But this wasn’t — I mean, 21 I — don’t know about this instance. It’s called “Nude 22 Awakening,” it’s about the sexual awakening of a child. 23 You ran it, your client, after 10:00 on both coasts and 24 they choose to run it at 9:00 for some unknown reason in 25 the Midwest. Maybe they thought — I don’t know, whatever. 2 (Laughter.)

And Seth Waxman that the frieze of the Court has images of butts!

Right now, as — as Mr. Phillips suggested, the commission has pending before it, which it has not denied for years, complaints about the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks. It — it has refused to say that “Catch-22” — it’s “Catch-22” — right over here, Justice Scalia. (Laughter.) MR. WAXMAN: Well, there’s a bare buttock there, and there’s a bare buttock here. And there may be more that I hadn’t seen. But frankly, I had never focused on it before. But the point -­ JUSTICE SCALIA: Me neither. (Laughter.)

Justice Kennedy gets the badge for stating the obvious:

JUSTICE KENNEDY: Well, we — well, we have to anticipate what the natural results or consequences of our decision will be.

And Kagan for the win:

JUSTICE KAGAN: General, I think that the, 19 the networks really are saying: Well, even if some 20 regulation is permissible, the kind of regulation that 21 the FCC has done here is regulation that gives it 22 complete discretion as to what kind of speech to go 23 after and what not to go after; that it has not tied 24 itself in any way to any kinds of standards. And, it’s, 25 you know, evident in the notion that this — the way hat this policy seems to work, it’s like nobody can use 2 dirty words or nudity except for Steven Spielberg and 3 that there’s a lot of room here for FCC enforcement on 4 the basis of what speech they think is kind of nice and 5 proper and good. And so that’s a serious First 6 Amendment issue.

Justice Scalia would just as well not have Ritchie or Hilton on any award shows! That solves that!

JUSTICE SCALIA: Maybe the third is you 10 shouldn’t interview these people.