Justices Finally Notice Naked Statues In The Supreme Court While Arguing Why Nudity Should Be Censored

from the oops dept

We've been covering the various court fights over the right of the FCC to fine TV networks over indecency -- including "fleeting" expletives and nudity. The Supreme Court heard the latest case last week (we got behind on coverage due to CES), and it certainly sounds like the Supreme Court Justices are perfectly happy with censoring the public airwaves. Reading the quotes from the transcript, it's really quite ridiculous. The Justices seem to spend a lot more time prudishly discussing what they think is appropriate, rather than the actual legal issues. Take, for example, Justice Antonin Scalia -- the supposed constructionalist who goes by the word of the Constitution:

"Sign me up as supporting Justice Kennedy's notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts. It's a symbolic matter...These are public airwaves, the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth."

I'm curious where in the First Amendment it says that Congress shall make no law... except wherein it involves requiring a modicum of decency. But the best part of the hearing came when, after the Justices got worked up about the idea of nudity on TV, one of the lawyers, Seth Waxman wondered about all the nudity right in the Supreme Court itself:

He said government often fails when it gets into the business of trying to understand context, as it purportedly did when it fined ABC for showing fleeting nudity on NYPD Blue.

"Right now, the commission has pending before it... 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," he told the Supreme Court.

Waxman then pointed around the room. "There's a bare buttock there and there's a bare buttock here."

As the crowd snickered, Scalia admitted that he hadn't noticed it before now.

Elsewhere, Justices seemed to think that, without the threat of indecency fines, the networks would be full of swearing and nudity. Of course, that's ridiculous. The networks would respond to what people actually wanted, and plenty of cable networks (not subject to such FCC rules) do not have nudity and swearing, because they know it's not appropriate for their audience. We'll see how the court eventually rules, but the questioning certainly did not bode well.

Filed Under: fcc, fleeting expletives, fleeting nudity, free speech, indecency, statues, supreme court

Obama Administration Asks Supreme Court To Determine If FCC Can Fine ABC For Showing Charlotte Ross Naked

from the questions-of-our-time dept

There have been a series of legal questions concerning the FCC's right to fine TV companies for "indecency" on broadcast television. If you haven't been playing along with the home game, hopefully this will catch you up. While the FCC didn't do much in the way of fines for TV for a while, over the past decade, it suddenly took an interest (mainly under the leadership of former boss Kevin Martin). So, it issued fines over things like some "fleeting expletives" during awards shows (rockers saying "fuck!" on live TV), Janet Jackson's wardrobe malfunction and NYPD Blue's decision to display actress Charlotte Ross's bare behind in a shot. Back in 2007, the Second Circuit appeals court ruled that the FCC's rules on fleeting expletives were invalid because they were arbitrary and capricious. The Supreme Court, however, reversed, saying that the rules didn't seem all that arbitrary or capricious at all. However, none of those rulings touched on the First Amendment questions. Instead, they just focused on the validity of the FCC's rules in general.

So, now all of these cases are making their way through the courts again, with the Second Circuit again rejecting the FCC's fines in both the fleeting expletives case and the NYPD Blue case, stating that even if the rules are not arbitrary and capricious, they do violate the First Amendment, and create a chilling effect on speech. The ruling on fleeting expletives was especially good, and was clearly written with the Supreme Court in mind, knowing that it would almost certainly hear this case, eventually.

Some had thought that the Obama Justice Department might just let this matter drop, as it wasn't a huge concern. However, it has now petitioned the Supreme Court to review both cases, and to support the FCC's right to censor broadcast TV.

Of course, as the Second Circuit made clear in its ruling, the whole purpose of the FCC issuing such fines is outdated and silly. It was based on the fact that only the TV networks could really reach such a wide audience and thus had to be carefully monitored. In this digital era with the internet, does it really matter if someone hears a stray curse on TV? It's just as likely that they'll find much worse online. And, in fact, as we've pointed out, the FCC's action and subsequent lawsuits have driven a ton of views of the clip of Ross's bare butt online. In fact, at one point, it was one of the top videos on YouTube. That makes the whole FCC process seem pretty pointless if the idea is to try to "block" access to this content, doesn't it?

Filed Under: fcc, fleeting expletives, fleeting nudity, free speech, indecency

Court Asks: If Fleeting Expletives Are Okay, How About Fleeting Nudity?

from the flashers-on-tv dept

We recently wrote about the Second Circuit appeals court ruling that the FCC's policy against "fleeting expletives" on broadcast TV was ruled unconstitutional, and that's now raising some other questions as well. A separate case, also in the same circuit, involves the question of whether or not a similar policy over "fleeting nudity" is equally problematic. As you may recall, the show NYPD Blue got a ton of attention back in 2003, for showing 7-seconds of a bare backside (which apparently was once the top rated clip on YouTube, despite it happening a few years before YouTube even existed). The FCC used a similar "fleeting nudity" policy to threaten to fine ABC affiliates for airing the show. However, the court in that case is now asking whether or not the recent ruling over expletives has any bearing on the question over nudity. Of course, you could question how "fleeting" it is for a filmed drama (as compared to the expletives, which were live events). But, at the same time, the wide availability of that same video (and, um, a ton of other much more graphic videos) to anyone with a computer might raise questions about why it even matters?

Filed Under: fcc, fleeting expletives, fleeting nudity, free speech, indecency

Supreme Court Says FCC Can Fine Fleeting Expletives... For Now

from the next-up,-first-amendment-question dept

The FCC, under former chair Kevin Martin, suddenly took a much greater interest in fining network TV broadcasters for "fleeting expletives" -- generally live performances in which someone uttered a curse word. Prior to that, the FCC had generally ignored such "fleeting" uses and focused on more significant violations. So, when the FCC suddenly changed its policies and fined some TV networks, they sued, complaining that the change was arbitrary. In 2007, an appeals court agreed, calling the policy arbitrary and capricious. However, the Supreme Court has now reversed that, saying that it's within the FCC's power to make the determination of what policy it follows in regulating broadcast content.

However, the case is far from over. So far, this part of the case has only focused on whether or not the rule change was allowed. What hasn't been explored is that, if the rule change is allowed, is that new rule unconstitutional (as a violation of the First Amendment). That's the real question -- so all this stuff about whether the policy was arbitrary and capricious was more like the opening act for the First Amendment headliner that's about to happen. The case has now been sent back to the appeals court, where the free speech implications will be reviewed.

In the meantime, I'm still wondering why the liability should be on the broadcasters in the first place. If Cher or Nicole Ritchie utter a curse word while on live TV, how is that the network's fault? Beyond just the free speech questions, I'm trying to figure out why the liability should be on the networks at all.

Filed Under: fines, first amendment, fleeting expletives, free speech, supreme court
Companies: fcc, fox