WASHINGTON – Had today's oral arguments on the use of foul language on broadcast television actually been on live TV, there is no doubt the program would have conformed to FCC guidelines. What's not clear is if the courtroom had actually heard the expletives at the center of the case, if the program would still pass FCC muster.
There was great anticipation leading up to today's arguments, marking the first time in 30 years the High Court has addressed broadcast indecency — and the hour long session didn't disappoint those gathered in the packed courtroom.
The FCC defended its recent rule cracking down on so-called "fleeting expletives" while the lawyer representing broadcast networks bashed the policy as arbitrary, capricious and contrary to First Amendment principles of free speech.
Today's arguments were essentially divided into two legal questions. The first focused on the procedures undertaken by the FCC when it beefed up its policy on foul language. The other tackled the larger constitutional question whether the new policy violated the First Amendment. It's not clear if the Court will rule on both issues, let alone which argument they will ultimately favor.
Newly installed Solicitor General Gregory Garre defended FCC policy, which he said was predicated on three objective factors that show the decision was not arbitrary or capricious. "This Court has never invalidated a change in agency position where those three factors have been present."
Justice Ruth Bader Ginsburg was the strongest critic of the FCC policy, at one time saying "this whole argument has an air of real futility." She further condemned the FCC because "there seems to be no rhyme or reason for some of the decisions that the Commission has made."
The broadcasters' counsel, Carter Phillips, also took issue with the FCC's policy change. He wondered why a formula for determining broadcast indecency that had worked for several decades was changed in 2004. "[T]here is no explanation for what is different or what is the reason for adopting that particular view."
Chief Justice John Roberts took issue with the technical argument that the FCC's policy changes violated procedural norms. "Don't we look at the Commission's order and determine whether it's a reasonable explanation? ... [The] important point is whether or not they provided a reasonable explanation for their current position."
An opinion on the constitutional argument could be far-reaching in scope, and is favored by the broadcasters, who contend the FCC rule is too broad and infringes on free speech.
Phillips pushed back on suggestions the Court rule narrowly on only the statutory question of the rule change. "I don't think that's a fair way to look at this case," he said. "At the end of the day you are regulating the content of speech, and therefore the First Amendment ought to inform everybody's assessment of what can the Commission do as it moves in a more content-restrictive way," Phillips said.
But Roberts sounded a cautionary note. "We can't assume that you are right on the Constitution in applying the [statutory law related to appropriateness of the FCC rule change]," he said.
Considerable time was also spent discussing the nature and extent to which certain language is or is not obscene. And these discussions — again never saying the actual words in question — frequently provided bits of comic relief.
Justice John Paul Stevens asked if it is "ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious — very, very funny?" Once the court quieted down from laughing, the Solicitor General Garre said that it was, given the overall context of the questionable remarks.
The Court also heard arguments on what type of programming was subject to the FCC oversight. Garre said the Commission would continue to exercise restraint to news and other informational programs not likely to attract a significant number of minor viewers. But the merits of placing movies, documentaries and sporting events under the FCC's microscope were also discussed.
Justice Antonin Scalia led the charge for the FCC's rule. During one exchange about changing attitudes toward expletives over the past three decades, Phillips suggested people have become more accepting of and exposed to them. Scalia shot back with a blistering question.
"Do you think your clients have had anything to do with that?"
The genesis of the case dates back to the live broadcasts of the 2002 and 2003 Billboard Music Awards on FOX that produced "fleeting expletives" from Cher and Nicole Richie. The offending words f***, s*** and f***ers were not censored and produced complaints to the FCC that young children had been exposed to the foul language during the so-called "family hour."
Those complaints eventually led the FCC to admonish FOX, but it did not levy a fine. FOX, joined by other networks, appealed the FCC's ruling and found success in the Second Circuit Court of Appeals.
This is the first broadcast indecency case in front of the Court since 1978, when it issued its landmark Pacifica decision. That ruling affirmed the FCC's right to regulate the airwaves. It achieved notoriety because a radio station aired an unedited version of comedian George Carlin's popular "Dirty Words" monologue.
White House Press Secretary Dana Perino and her deputy Tony Fratto were in the courtroom.
Note: FOX News Channel and FOXNews.com are owned and operated by News Corporation, as is FOX Broadcasting, the main respondent in this case.