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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. 

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The FCC also objected to a 2003 episode of Fox Television's "NYPD Blue" that featured a seven-second view of a woman’s exposed buttocks and a side view of her breast as she prepared to take a shower.

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Under the FCC’s policy, broadcasters are expected to provide programming suitable for family viewing from 6 a.m. to 10 p.m., when children may be watching.

The music award shows all aired during prime time. The "NYPD Blue" program aired at 10 p.m. on the East and West Coasts, but aired in prime time at 9 p.m. in the Midwest. That’s the basis of the FCC’s complaint, that it should have aired that episode one hour later.

This is not the first time the Supreme Court has considered the FCC’s indecency policy. In 2009, the Supreme Court reversed a New York appeals court’s decision invalidating the rule based on the way the policy was adopted. On remand, the appeals court again struck down the policy, this time on grounds that it was unconstitutionally vague.

Only eight justices will decide the case. Justice Sonia Sotomayor stepped aside because she was on the appeals court panel that considered the case at an earlier stage.

Double standard?

One frequent complaint about the FCC policy is how the agency can justify banning the 7-second bare buttocks on "NYPD Blue" and the use of expletives in awards shows, yet allow the prime-time broadcast of "Schindler’s List" (with naked women in a detention camp) and "Saving Private Ryan" (with frequent use of foul language).

“It’s like nobody can use dirty words or nudity except Steven Spielberg,” Justice Elena Kagan observed. “That’s a serious First Amendment issue,” she said.

“I disagree,” said Verrilli, who replaced Kagan as the Obama administration’s solicitor general. “We are talking about a tiny, tiny number of the broadcasts that occur.”

Verrilli said it was “clear which side of the line something fell on,” when examining FCC indecency decisions. He conceded that there would be some “hard cases,” but that their number would be trivial.

Justice Anthony Kennedy wondered if the FCC policy were struck down whether it might send a message to foul-mouthed celebrities that television was suddenly a safe medium for swearing. “Isn’t it inevitable that this will happen?” he asked.

Washington lawyer Carter Phillips, representing Fox Television, said foul language could be bleeped from live programs. In addition, he said advertisers and viewers insist on a certain level of restraint. “You don’t need the Federal Communications Commission any longer under these circumstances,” he said.

Justice Antonin Scalia disagreed. “What you acknowledge to be the vulgarity of cable suggests otherwise, doesn’t it?” he asked.

Mr. Phillips said the FCC’s tough policy had thrown the broadcast industry into turmoil, raising threats of fines and license revocation, and chilling creativity in programming.

“As we sit here today, [we are] literally facing thousands and thousands of ginned-up computer-generated complaints that are holding up literally hundreds of TV license renewals, so that the whole system has come to a screeching halt,” he said.

The case is FCC v. Fox Television (10-1293). A decision is expected by late June.

RECOMMENDED: How much do you know about the US Constitution? A quiz. 

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