A Court Strangely Conflicted About Indecency

By guest blogger LAURENCE H. WINER, professor of law, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.   

You taught me language, and my profit on’t is I know how to curse.”  – Caliban in The Tempest

Here’s a question the late language maven, William Safire, might have pondered listening to the recent Supreme Court oral argument in the Fox and ABC broadcast indecency cases.   What is truly “indecent” in the normative, Webster’s Third sense of the word as “not conforming to generally accepted standards of morality”:

(a) “crush videos” depicting actual, gruesome torture and killings of animals for purposes of sexual titillation;

(b) violent video games encouraging a player’s virtual infliction of grotesque mayhem on realistic human avatars;

(c) purveyors of vicious hate speech shamelessly exploiting military funerals to garner media attention; or

(d) fleeting, meaningless uses on television of commonly used expletives and the brief showing of a naked human buttocks to dramatize an awkward family setting?

Hint for those challenged since high school by multiple-choice tests: The answer is not (d).  Yet, the same justices who very recently, and most appropriately, have had no trouble deciding that the First Amendment robustly protects each of the first three categories of expression seem strangely conflicted about so-called “indecency” in the broadcast media.  George Carlin must still be laughing.

To be sure, for many years broadcasters have been their own worst enemy.  Before the 1978 Pacifica case, mainstream broadcasters shunned controversy, bowing to advertising dollars and what they assumed their audiences would not accept in adult entertainment programming.  So terrible precedent was set by the repeated “verbal shock treatment” of the Carlin monologue even when broadcast as a serious commentary on societal language taboos.  More recently, rather than forcing the issue in a favorable posture (and, perhaps, preserving their competitive position versus cable and satellite) by routinely presenting in prime time, with appropriate notice of the content, critically acclaimed adult dramas, broadcasters wound up before the Supreme Court defending inane comments of sophomoric “actresses” (that last term being used advisedly).

To be fair, however, such timidity may be understandable by a media industry anomalously denied full First Amendment protection throughout its history and at risk for increasingly large fines from the government agency that holds its license.  The Supreme Court, however, has no comparable excuse for not finally disavowing Pacifica.

In oral argument of the Citizens United case, Chief Justice Roberts noted: “[W]e don’t put our First Amendment rights in the hands of [government] bureaucrats.”  In U.S. v. Stevens, the “crush videos” case, he wrote for eight justices: “[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige.  We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.”  And in Snyder v. Phelps, the military funeral case, his majority opinion eschews reliance on a “highly malleable” regulatory standard with “an inherent subjectiveness about it which would allow … impos[ition of] liability on the basis of … tastes or views, or perhaps on the basis of … dislike of a particular expression” (quoting Hustler Magazine Inc. v. Falwell).  Yet, in support of the FCC’s attempt to avoid a vagueness attack through its generic “context matters” approach to defining indecency – an indefensibly inconsistent approach that Justice Kagan justly summarized as, “nobody can use dirty words or nudity except for Steven Spielberg” – the chief justice made a telling slip of pronoun: “All we [sic] are asking for, what the government is asking for, is a few channels where you can say I’m [sic] not going to – they are not going to hear the S word, the F word.  They are not going to see nudity. “

Justice Scalia’s majority opinion in Brown v. Entertainment Merchants Association, the violent video games case, reaffirms that “disgust is not a valid basis for restricting expression” and warns of the “precise danger … that the ideas expressed by speech – whether it be violence, or gore, or racism – and not its objective effects, may be the real reason for governmental proscription.”  But Justice Scalia was very quick to endorse the “symbolic value” articulated in Justice Kennedy’s question as to whether there is “value, an importance, in having a higher standard or different standard for broadcast media on the television … an important symbol for our society that we aspire to a culture that’s not vulgar in – in a very small segment?”  So, per Justice Scalia, FCC commissioners presumably may not enforce their own tastes and standards regarding violence, or gore, or racism, but anything touching on sex (well, actually, even just profanity or nudity) is forbidden.  What fate now (pace former attorney general John Ashcroft and the “Spirit of Justice”) for the bare buttocks in the marble friezes adorning the Court itself to which Seth Waxman, representing ABC, called Justice Scalia’s surprised attention?

Justice Kennedy’s remark was by way of prodding the government’s position and well may not reflect his own approach toward mandating mere symbolic value.  After all, Justice Kennedy is the staunchest protector of free speech ever to sit on the Court.  And early in his tenure, his respect for the symbolism of the American flag did not keep him from providing a fifth vote in Texas v. Johnson to overturn a conviction for burning the flag as a political protest, despite the justice’s own, expressed distaste for the result, one that his view of the Constitution demanded.

Justice Alito (who dissented in Snyder and Stevens and concurred only in the judgment in Brown), perhaps searching for an easy way out, observed (to the dismay of attorney Carter Phillips and his client FOX) that “broadcast TV is living on borrowed time.”  So, rather than intervening, perhaps the Court should let the indecency issue “die a natural death.”  But such avoidance of a current constitutional problem because the future supposedly will take care of itself is reminiscent of Justice O’Connor’s controversial majority opinion in the 2003 law school affirmative-action case (Grutter v. Bollinger), an approach that it is difficult to imagine Justice Alito joining there.  

Perhaps the most dismaying aspect of the oral argument was the scant, almost non-existent, reference to the First Amendment and the appropriate standard of review, which in any non-broadcasting context would have to be strict scrutiny for a content-based restriction of pure speech.  The government relied, with encouragement from some justices, on the old shibboleth of broadcasters enjoying a special privilege in the free, licensed use of the public airwaves for which they may be made to pay through public interest obligations, including indecency controls.  So 20th century!  And an argument well characterized even then as a mere “trope” lacking serious analytical basis. 

The only specific rationale advanced to justify the continuing, chilling intrusion on broadcasters’ and the public’s First Amendment rights was the desire to maintain a “safe haven” on broadcast television, in addition to other dedicated family channels already available, where concerned parents may leave their children without fear they may encounter what five commissioners later determine was indecent content.  (Ads, however, for erectile dysfunction medication, with warnings about “an erection lasting more than four hours,” apparently are fine, despite the questions they could prompt in young children mystified by this adult condition but not at all phased by hearing other words with which they are fully conversant.)  Even if such a “safe haven” were desirable, the justices favoring the FCC’s position showed little inclination to consider the dubious constitutionality of forcing it upon broadcasters.

Kudos, however, to advocate Phillips who reminded the Court that the FCC was relying on “thousands of ginned-up computer-generated complaints,” and did not hesitate to tell the Court that it should overrule Pacifica (though this is not necessary to rule in favor of the broadcasters).  In the constitutional highlight of the Court’s unenlightened engagement with fundamental free speech issues, Phillips definitively rebutted Roberts’s reliance on carving out a small safe haven within broadcasting because so many other unrestricted channels are available: “[T]he notion that one medium operates in a certain way in the exercise of its First Amendment rights can be used as an explanation for taking away or for restricting the First Amendment rights of another medium is flatly inconsistent with what this Court has said across the board in the First Amendment context.  You don’t balance off one speaker against another and give one favored status and give another unfavored status.”  Amen.

The usual caveat about trying to prognosticate an eventual decision from oral argument naturally applies.  Justices Ginsburg and Kagan were skeptical of the FCC’s position, as Justice Thomas has been previously, and Justice Breyer was searching for his usual noncommittal, middle-of-the-road resolution.  It is doubtful a majority will emerge to overrule Pacifica, but the FCC’s current indecency policy also is unlikely to emerge intact.  Even a 4-4 split (Justice Sotomayor recused herself) would uphold the lower rulings against the Commission.  Pacifica, unfortunately, may not be as dead as the other broad categories of recent speech restrictions, but it may be left in a vegetative state.

                                  

The opinions expressed above are those of the writer and not necessarily of The Media Institute, its Board, contributors, or advisory councils.  Prof. Winer is a member of The Media Institute’s First Amendment Advisory Council.

Kevin Martin, and the Peril of Fixed Ideas

Like the man who appointed him to the position, today marks FCC Chairman Kevin Martin’s last day on the job. That both he and President Bush are leaving office to the relief of most, and the glee of many, is partly explained by a trait they share: Both have an unfortunate capacity to project their personal views ahead, and at the expense, of sound public policy.

In Bush’s case the most obvious example is the Iraqi adventure; in Martin’s it has been his pursuit of content controls on TV programming. This is not to say there weren’t other things on their agenda—some of which even went right—just that it is these issues for which they will be  remembered most critically.

Looking back on it, two events bookend The Media Institute’s relationship with Kevin Martin. The first was a speech he gave at our annual awards banquet in October of 2003, at a time when he was but a Commissioner at the FCC; the second was a private meeting I had with him in May of 2005, not long after he became Chairman.

With the benefit of hindsight, one can see in Martin’s banquet speech an outline of  where his personal views might later take him. Indeed, I knew even before the speech that he had a strong aversion to indecent programming. But even so I assumed that his clear understanding of the benefits of free speech (much of which he attested to in his remarks), and his knowledge of the constitutional limitations, would overcome his personal views.

To be fair, Martin would deny, and indeed has denied, that his pursuit of indecent TV programming was anything more than an obligation on his part; that Congress has passed laws and he was simply enforcing them.

That argument, though, puts me in mind of a tale concerning the former British Prime Minister, Harold Wilson. Seems that, so the story goes, Wilson went round to Buckingham Palace following his Labour Party’s defeat in 1970, there to tender his resignation to the Queen, only to find that she had gone for the day to the races at Ascot. This was said by many to be very odd because the Queen was known to be a lady who always put duty before pleasure. Perhaps though, said one, the Queen saw Ascot as her duty and Wilson’s resignation as her pleasure.

However he saw his duties, Kevin Martin’s crackdown on TV content was definitely his pleasure.

In November of 2004, The Media Institute published an essay written by Arizona State University professor Laurence Winer. Titled “Soul of the Censor: The FCC Attacks Television Violence,” the essay was a brilliant, if provocative, explication of the constitutional infirmities, and other problems, with the FCC’s crackdown on violent and indecent TV programming.

Six months later, and with growing concern about the direction in which he seemed headed, I wandered over to the FCC for a meeting with Martin, who just two months earlier had been named Chairman. My hope for the meeting was that I might be able to persuade him to make a course correction re “fleeting expletives,” and all the rest of it, on the argument that the Commission was putting the cart before the horse; that, as Professor Winer had observed, not only was there no evidence in the record of harm from exposure to indecent TV, the nature of the alleged harm itself wasn’t even explained.

Martin was having none of it, though, and showed a particular displeasure with Winer’s essay. And so, though I didn’t realize it at the time, what had been a collegial relationship with him, and with Michael Powell before him, turned adversarial. Thereafter, he rarely attended Media Institute functions, and largely stopped communicating with us.

But he didn’t stop, or even slow down, his campaign to “clean up” the airwaves. Instead, he turned his attention to cable TV, and to his “a la carte” proposal for cable pricing, a mission that, given its length and depth, took on almost comical proportions, with some observers likening it to Ahab’s pursuit of Moby Dick.

Martin argued that the motive behind his a la carte advocacy was to give consumers a break in the rising cost of cable TV service, but virtually nobody was buying it. Instead, it looked to most people as just another attempt to supplant ‘indecent” with “family friendly” programming. As Fortune’s Mark Gunther put it, “So what’s going on here? Politics, as usual.”

In the end, the great irony in Martin’s a la carte campaign–and indeed in all of his efforts to combat what he deems offensive or harmful TV programming–is that owing to the Internet and its effects, the marketplace by itself is moving toward program disaggregation and greater consumer choice, a development one might think a Republican appointee would have expected and preferred to government controls.