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Lawyer makes startling argument in Supreme Court hearing on FCC

A lawyer arguing that the FCC has gone overboard in its regulation of broadcast nudity and language directed the justices' attention to the bare buttocks of statues in the Supreme Court. The justices are considering whether FCC rules are inconsistent. 

By Staff writer / January 10, 2012


Not often can one watch a former solicitor general of the United States directing venerable Supreme Court justices to observe naked posteriors of the marble statues that stand sentinel at the highest court in the land.

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“There’s a bare buttocks there,” Washington lawyer Seth Waxman advised the startled justices during his oral argument on Tuesday.

“And there’s a bare buttocks here,” he said, pivoting and pointing across the ornate courtroom.

The black-robed justices obliged the lawyer by following his extended finger to a sculptor’s rendition of gluteus maximus.

This was no voyeuristic dalliance. Mr. Waxman was hoping to convince the high court that the Federal Communications Commission had gone haywire in threatening to sanction broadcast television stations for the fleeting appearance of a naked body part or of a blurted expletive during prime-time television.

He told the justices that the FCC’s new beefed-up effort to stamp out televised indecency was so vague and ill-defined that it was difficult to know what was legal and what wasn’t.

Waxman, solicitor general under President Bill Clinton, said the FCC had even received complaints about television coverage of the opening ceremony of the Olympics. The cameras had apparently panned past statues revealing breasts and buttocks.

That’s when Waxman turned his gaze upward to point out similar outrages right there in the courtroom.

Earlier, the current solicitor general, Donald Verrilli, argued on behalf of the Obama administration that the court should uphold the FCC’s tougher enforcement effort.

He conceded that the FCC’s new rule lacked “perfect clarity.” But short of banning certain words in all contexts, some amount of leeway was necessary to achieve a balanced approach acknowledging free speech requirements, he said.

The FCC "is trying to make reasonable accommodations for First Amendment values,” Mr. Verrilli said.

FCC gets tough

Broadcasting has been regulated in the US since the 1920s. In 1978, the Supreme Court upheld the power of the FCC to ban broadcasts that it deemed “indecent.” But over the next 25 years, the agency only rarely attempted to enforce those provisions.

Broadcasters were on notice that the government was watching, but the FCC’s approach was more permissive and forgiving than punitive.

That changed in 2004, when the FCC began to counter what it viewed as an increasingly permissive and toxic media environment with the growth of cable and satellite television services and free-ranging content on the Internet.

In a direct assault on the FCC effort, broadcast companies are now asking the Supreme Court to overrule its 1978 decision and, in effect, deregulate broadcast television and radio.

They argue that the FCC standards are obsolete given the rise of alternative media with more permissive content.

The Obama administration disagrees.

Blame it on Bono

Verrilli said FCC enforcement is essential to monitor radio programming. In addition, he said the FCC rules could help maintain broadcast television as a haven where parents would not have to worry about their children being bombarded with sexually explicit images and foul language.

The tough new standards at the FCC came after complaints about a series of broadcasts involving celebrities using foul language during televised award shows. Cher used the “f-word" at the 2002 Billboard Music Awards. Bono used the "f-word" at the 2003 Golden Globe Awards. And Nicole Richie used both the “f-word" and the “s-word" during an appearance at the 2003 Billboard Music Awards.


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