It’s been two and a half years since the U.S. Supreme Court issued its opinion, authored by conservative Justice Antonin Scalia, in the case ofFederal Communications Commission (FCC) v. Fox Broadcasting, and on Tuesday morning, attorney Carter Phillips will press Fox’s case once again to absolve the network of the massive fines levied by the FCC for so-called “fleeting expletives” uttered during two different broadcasts of the Billboard Music Awards.
But a lot of water has gone under the bridge since the high court issued its original opinion back in May of 2009. For one thing, the Second Circuit Court of Appeals has reconsidered its prior ruling in light of Scalia’s opinion and found that the world of communications has changed drastically since the Supreme Court ruled on FCC v. Pacifica Foundation, the George Carlin “Seven Filthy Words” case, and that the basis for that ruling and a previous one, Red Lion Broadcasting v. FCC—that the public had access to too little bandwidth to justify allowing words like “fuck,” “piss” and shit” to be broadcast on radio or TV—was, in the modern world with its cable TV, internet access and communication tools such as YouTube, Facebook and Twitter, no longer a viable reason to restrict such language.
Also in the interim, another long-running FCC case against ABC, Inc. and 44 of its affiliated stations was similarly decided, this time in January of 2011. At issue in that case was an episode of the long-running police drama, NYPD Blue, titled “Nude Awakening.” The court described the offending material as, “In the episode, Connie McDowell (played by Charlotte Ross), who has recently moved in with Andy Sipowicz, disrobes as she prepares to shower, and her nude buttocks are visible. As McDowell turns toward the shower, the side of her buttocks and the side of one of her breasts are visible. While she faces the shower, the camera pans down, again revealing her nude buttocks. Sipowicz’s young son, Theo, enters the bathroom and sees McDowell naked from the front. Theo blocks the audience’s view of McDowell’s nudity.” The Second Circuit used an analysis of the FCC’s own rules to conclude that the brief (and scripted) nudity was plot-driven and not simply used to titillate or shock, that it too was of short duration, and in any case didn’t explicitly “descri[be] or depict … sexual or excretory organs or activities.” However, the FCC petitioned the Supreme Court to hear theNYPD Blue case as well, and ABC’s position will also be argued on Tuesday by prominent media attorney Seth Waxman.
Finally, in a decision released just two months ago, the Third Circuit Court of Appeals threw out the FCC’s case against CBS, Inc. for having aired a 5/16ths-second exposure of Janet Jackson’s breast during the 2004 Super Bowl halftime show. Part of the Third Circuit’s reasoning in denying the FCC the enormous fines it sought from the network was that the incident occurred even before the FCC revamped its indecency rules in March of that year, but some of the logic used by the Third Circuit panel’s majority may be included in Tuesday’s arguments by the respondents.
With all those precedents in mind, in the lead-up to the high court battle, at least a dozen interest groups have filed amicus briefs weighing in on one side or the other of this dispute. Such groups as Creative Voices in Media, the Future of Music Coalition, the Cato Institute (to which adult entrepreneur John Stagliano is a contributor), the Electronic Frontier Foundation, PublicKnowledge and TechFreedom have all filed briefs in support of either Fox or ABC or both, while the usual suspects—Parents Television Council, Morality in Media (MiM), Focus on the Family, Family Research Council and Pat Robertson’s American Center for Law and Justice (ACLJ)—as well as so-called neutral commentators including the Yale Law School Information Society Project Scholars and the New America Foundation, have filed briefs supporting the FCC’s position.