The Federal Communications Commission wants the justices to overturn two sweeping rulings by the U.S. appellate court in New York that invalidated two FCC findings on the grounds "the FCC's context-based approach to determining indecency is unconstitutionally vague in its entirety."
The justices are likely to accept the case this summer.
Meanwhile, broadcasters have been pushing the naughty-not-nice envelope, one conservative group says.
The Parents Television Council, founded by activist L. Brent Bozell III in 1995, has filed a friend-of-the-court brief in support of the FCC.
"The broadcasters have taken advantage of the uncertainty created by the litigation of these cases by broadcasting racier fare," the group said. "PTC conducted a longitudinal study comparing the first two weeks of the 2010 season's prime time programming with the same period in 2005, comparing the volume and harshness of profanity occurring on broadcast television."
PTC said it found the "use of profanity on prime time broadcast entertainment programming increased 69.3 percent from 2005 to 2010. The largest increases were found in the use of what the report referred to as the 'harshest profanities,' and in explicit references to genitalia and bodily functions."
The greatest increases, the PTC said, came between 8 and 9 p.m. -- the Family Hour.
Besides the F-word and S-word, use of the word "'balls' to refer to male genitalia increased 200 percent, use of the word 'screw' increased 121 percent and use of the word 'boobs' in reference to breasts increased 90 percent."
The statistics "demonstrate that use of such language by the networks is both deliberate and pervasive."
The PTC support brief even took on cable programming -- not subject to the FCC's regulations like broadcasters.
In a look at two BET and MTV programs, the PTC said, it found "746 sexually explicit scenes or lyrical references in the 27.5 hours of analyzed programming from the December (2007) study period for an average of 27 instances per hour, or one instance every 2.2 minutes. Sexual content was even more common in the March (2008) test period, with an average 40 instances per hour, or one instance every 90 seconds."
U.S. law gives the FCC the power to issue regulations "to prohibit the broadcasting of indecent programming" during daytime. The FCC implemented those statutory provisions by adopting regulations that prohibit broadcast licensees from airing "any material which is obscene" anytime or "on any day between 6 a.m. and 10 p.m. any material which is indecent."
The commission also was authorized to enforce the statute by, among other things, civil forfeitures and taking violations into account when renewing licenses.
With all this power on his plate, the FCC acted in a famous case involving the late comedian George Carlin and his "Filthy Words" sketch, setting the definition of indecent speech that survives today. The commission found that the sketch was indecent.
The Supreme Court agreed in 1978's FCC vs. Pacifica that "context is all-important," with variables such as the "content of the program in which the language is used" and its effect on "the composition of the audience." The high court said the FCC's application of its definition of indecency to the Carlin monologue "as broadcast" did not violate the First Amendment.
The justices said "the broadcast media have established a uniquely pervasive presence in the lives of all Americans" because "material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder."
Later the FCC issued the standards under which "indecency" is defined: First, the material at issue "must fall within the subject matter scope of indecency definition -- that is, the material must describe or depict sexual or excretory organs or activities." Second, "the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium."
But then came two cases involving the Fox Network. In December 2002, Fox broadcast the Billboard Music Awards beginning at 8 p.m. EST. Cher received an "Artist Achievement Award," and used the F-word in her acceptance speech. A year later, Fox again broadcast the Billboard Music Awards. In an exchange between reality celebrities Nicole Richie and Paris Hilton, Richie used both the S-word and the F-word.
The FCC received numerous complaints following both broadcasts, and the commission issued an order concluding both broadcasts contained "indecent" language as prohibited by U.S. statute and the commission's indecency regulation.
The FCC imposed no sanctions.
A divided panel of the 2nd U.S. Circuit Court of Appeals threw out the FCC finding, ruling that the commission's change of policy regarding isolated expletives was "arbitrary and capricious under the (federal) Administrative Procedure Act" because the agency had "failed to articulate a reasoned basis" for the shift.
The Supreme Court reversed the appeals court, saying "Congress has made the determination that indecent material is harmful to children, and has left enforcement of the ban to the commission." The justices also ruled that "the agency's reasons for expanding the scope of its enforcement activity were entirely rational."
The Supreme Court sent the case back down to the appeals court for a new ruling. This time around, the appeals court did not limit its inquiry to the constitutionality of the FCC's isolated-expletives policy as applied to Fox's broadcasts. Instead, the court held the "FCC's indecency policy is unconstitutional" in its entirety "because it is impermissibly vague." The appeals court threw out not just "the FCC's order," but the entire "indecency policy underlying it."
The appeals court said it did not feel constrained by Pacifica, because the justices did not address the issue of vagueness in that case.
Yet another case involved ABC involved the February 2003 broadcast of an episode of the television show "NYPD Blue" entitled "Nude Awakening."
With her back to the camera," a woman in the bathroom "removes her robe, thereby revealing the side of one of her breasts and a full view of her back. The camera shot includes a full view of her buttocks and her upper legs as she leans across the sink to hang up her robe." Later in the scene, the camera shifts to show a young boy getting out of bed and walking toward the bathroom, at which point the woman is again shown partially nude. The boy is shown opening the bathroom door. The woman "quickly turns to face" him, and the camera shoots through her legs, "which serve to frame the boy's face as he looks at her."
In 2008, the FCC imposed an indecency forfeiture of $27,500 on each of several ABC network-owned or affiliated television stations. Besides the partial nudity in the episode, the FCC concluded the material was patently offensive as measured by contemporary community standards.
The FCC said the bathroom scene was "pandering, titillating and shocking," placed the audience in the "voyeuristic position" of observing a naked woman preparing to shower and that the manner in which the scene was shot "highlights the salacious aspect of the scene."
The commission singled out the shot of the boy's face framed by the woman's legs.
ABC and its affiliates sought review in the 2nd Circuit, and in January this year the appeals court summarily threw out the FCC's order imposing the forfeitures. The appeals court said "there is no significant distinction between this case and Fox" because despite the nudity, "the case turns on an application of the same context-based indecency test that (the ruling in) Fox found 'impermissibly vague.'"
The appeals court also examined commission indecency determinations involving different words and phrases -- "pissed off," "dick" and "dickhead" the FCC's petition to the high court said -- and "starkly different contexts," e.g. the broadcast of the movie "Saving Private Ryan." By striking down the FCC's indecency policy in its entirety, the petition said, the appeals court "invalidated its application to even the most graphic broadcasts."
"Thus, under the 2nd Circuit's decisions, a broadcaster can evade liability for its indecent broadcasts even when the material at issue is 'plainly prohibited' by the FCC's indecency policy," the commission told the Supreme Court, "based solely on a claim that the policy may be vague 'as applied to the conduct of others."
The Supreme Court has said in the past a statute or rule is unconstitutionally vague if it "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement."
The petition argues the FCC's indecency regulations are not unconstitutionally vague.
"By prohibiting the broadcast of 'obscene, indecent or profane language' ... and by directing the FCC to 'promulgate regulations to prohibit the broadcasting of indecent programming' during specified hours of the day," the petition said.
"Congress recognized that a wide variety of material, not easily specified in advance, could transgress the reasonable standards of behavior applicable to broadcasters," the petition said. "The commission clarified its understanding of the statutory terms when, in a definition that this (Supreme) Court approved in Pacifica, it identified indecency as material that describes 'in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs.' ...
"The agency's continued explanation and application of its indecency standards serve to further 'narrow potentially vague or arbitrary interpretations' of its rules and of the statute."