The Supreme Court heard oral arguments today for FCC vs Fox Television Stations. The case pits the television networks against the Federal Communications Commission, the latter fighting for its right to regulate "fleeting" expletives and brief nude scenes on over-the-air TV. Cher and Nicole Richie star in the nearly eight year old legal drama, as do several actors from an episode of NYPD Blue.

One comment during questioning by Justice Samuel Alito caught our eye. It was directed at Carter Phillips, an attorney for Fox who wants the FCC's stricter indecency rules struck down.

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

"I hope that—I'm sure my client is not thrilled to have you say that," Phillips responded.

"Well, 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," Alito persisted. "So why not let this die a natural death? Or why do you want us to intervene?"

Phillips responded that free speech is at stake. "I think once the issue is before the Court it ought to decide the First Amendment question that's presented here... What they have done here is unconstitutional."

This is brilliant

Some background on what "they"—the government—did may be in order. In 2006, the FCC sanctioned Fox Television for various off-the-cuff potty words spoken by Cher and Richie during the 2002 and 2003 Billboard Music Awards. "I've also had critics for the last 40 years saying that I was on my way out every year," Cher explained. "So fuck 'em." The subsequent year, Richie felt the need to ask the Billboard audience if they had "ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

The FCC insisted that these exclamations violated the agency's ban on "fleeting" expressions of indecency, declared in 2004 following Bono's famous utterance after receiving a televised Golden Globe award. "This is really, really fucking brilliant," the rock star announced, adding "really, really great" seconds later, perhaps as an alternative PG-rated sound bite.

The FCC's rebuke of Fox involved no fine, but Fox, with the support of other networks, took the reprimand to the Second Circuit Court of Appeals. At first the networks approached the matter cautiously, arguing that the FCC had violated federal procedural law by not explaining why the agency had come up with this new stance. It was, after all, a pretty dramatic modification of Pacifica vs. FCC (1978), in which the government promised that it would regulate indecency with the utmost probity and caution.

Sex and magnets

But while the Second Circuit bought this argument, the Supremes did not. The FCC's reasons for expanding its indecency authority "were entirely rational," declared Justice Antonin Scalia in April 2009. "Even when used as an expletive, the F-Word's power to insult and offend derives from its sexual meaning." Four of his brethren agreed with this assessment.

The majority then sent the case back to the Second Circuit to review Fox's secondary plea—that the new policy's "vague" nature violated the First Amendment. This stance received an enthusiastic endorsement from the lower court.

"Under the current policy, broadcasters must choose between not airing or censoring controversial programs and risking massive fines or possibly even loss of their licenses, and it is not surprising which option they choose," the appeals court justices declared in 2010. "Indeed, there is ample evidence in the record that the FCC's indecency policy has chilled protected speech."

Furthermore:

Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all "patently offensive" references to sex, sexual organs, and excretion without giving adequate guidance as to what "patently offensive" means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster's peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.

The FCC declared that this ruling makes indecency enforcement a "seeming impossibility." "It is all but impossible to see how the Commission could develop effective indecency guidelines under the panel's strictures," the agency declared. "Any new policy would have to satisfy the panel's demand for extreme precision."

Impermissible vagueness

The Supreme Court is now considering this case again, alongside the government's decision to fine ABC television affiliates for a brief bathroom nude scene in a 2003 episode of NYPD blue. For this offense, the Commission fined 44 ABC stations $27,500 apiece—a $1.21 million penalty. But the Second Circuit slammed this decision as well.

"Indeed, there is no significant distinction between this case and Fox," argued the Second Circuit last year. "In Fox, the FCC levied fines for fleeting, unscripted utterances of 'fuck' and 'shit' during live broadcasts. Although this case involves scripted nudity, the case turns on an application of the same context-based indecency test that Fox found 'impermissibly vague'."

So one of the big questions debated on Tuesday was whether a more precise definition of fleeting indecency is even possible.

"Isn't the inevitable consequence or this precise consequence that you're arguing for on this fleeting expletive portion of this case, that every celebrity or want to be celebrity that is interviewed can feel free to use one of these words," asked Justice Anthony Kennedy. "We will just expect it as a matter of course, if you prevail. Isn't that the necessary consequence of this case?"

"Well, that they will use it, perhaps," Phillips replied. "But that doesn't mean that we wouldn't continue to try to bleep it out as best we could." And it would "probably be the case," he warned, that if the FCC prevails, "you will have less live television because your concern is people will continue to use this language."

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

"Not under the guidelines that Fox has used consistently from 10:00 p.m. until 6:00 a.m. and candidly that all of the other networks follow," Phillips replied. Those are the "safe harbor" hours established by Congress and the FCC.

A certain edgierness

Still, the 'cable versus broadcast television' question kept coming up for the justices, particularly for Elena Kagan.

"Do you think that there is a difference between what a person sees on broadcast channels and what a person sees on basic cable?" she asked, noting that basic cable is not affected by the FCC's rules.

Yes, Phillips conceded. "I think there is probably a certain edgierness to it, but that said, it's still clear that as long as you have advertising revenue that drives a significant amount of the decisionmaking here, you are going to have the kind of self-restraint that frankly ought to cause the Court to say we should no—we no longer need to treat the broadcast medium as the weak sister of the media."

Thus, broadcast TV "ought to have the same protections that everybody else has, and that they will engage in the same restrained approach to these kinds of issues that newspapers do—I mean, the Post doesn't run the language of the case that's being argued before it — that cable does, all of those media do; because there are natural restraints. You don't need the Federal Communications Commission any longer to ensure under these circumstances."

But Scalia pushed back, "What you acknowledge to be the vulgarity of cable suggests otherwise, doesn't it?"

"Well, I'm not suggesting that there is some kind of wildly different approach. All I am suggesting is that there—that in general most people who rely upon advertising and have to play to a particular audience in order to make their money, it's going to obviously be restrained."

Chief Justice John Roberts seemed skeptical about this promise.

"It depends on what audience you're trying to get, and the demographic," Roberts noted. "If you are trying to get an audience that is older, maybe you will decide this is what is going to attract them. They don't want sanitized language. They want to hear the—all those other words. If your target is a much younger audience, maybe that will happen. But the idea that you're—the problem is going to go away because you are going to be good as you can be, that seems an odd way to analyze First Amendment problems."

Phillips reiterated that the government and high court had an obligation to define what "the problem" is in precise terms. "I think it ought to go—it ought to be analyzed the exact opposite," his presentation concluded, "which is that the obligation, the burden rests on the Federal Communications Commission and Congress to show that there is a real problem that needs to be solved and that this is narrowly tailored to achieve that."