BOB GARFIELD:
On Tuesday the Supreme Court heard arguments over the constitutionality of the government's rules regarding indecent programming. In particular what's at issue are fines levied against broadcasters for so-called “fleeting expletives” and nudity seen and heard on their channels during the hours deemed safe for children. That includes naughty word eruptions at award shows –
[CLIP]:
RICKY GERVAIS:
That was really, really – bleep - brilliant. And
[AUDIENCE LAUGHTER][END CLIP]
BOB GARFIELD:
And nudity like the type seen in this 2003 NYPD Blue episode, where an actress disrobes for a shower and is discovered by a small boy.
[CLIP]:
ACTRESS:
Oh!
BOY:
Sorry.
[END CLIP]
BOB GARFIELD:
The issue has bounced back and forth in the federal courts, and once again the Supremes are considering how or if the FCC should regulate the family hour. Dahlia Lithwick is a senior editor at Slate. Dahlia, welcome back to the show.
DAHLIA LITHWICK:
Thank you so much for having me.
BOB GARFIELD:
Did the Court seem to buy into the notion that broadcast TV should be one place where parents can allow their small children to watch without fear of being exposed to - who knows what?
DAHLIA LITHWICK:
Unequivocally, yes! It was quite surprising. I counted at least four justices who felt really strongly. In fact, Chief Justice Roberts says the fact that there are 300 other channels that are purveyors of smut is all the more reason to preserve this one safe space where you can plop your toddler down at 8 o'clock at night and know that nobody's going to drop the F-bomb.
BOB GARFIELD:
Although the safe space argument was [LAUGHS] kind of deflated when one of the lawyers for the networks pointed out that there were nude statuary right in the chambers [LAUGHS] of the Supreme Court.
DAHLIA LITHWICK:
This is indisputably, in 12 years of court watching, the greatest moment of my life. Seth Waxman represents ABC TV, and he starts talking about how there's questions and complaints before the FCC about the broadcast of the last Olympic Games Opening Ceremony where there's nude statuary and then starts pointing out all the naked buttocks. Around the interior of the courtroom -
[BOB LAUGHS]
- there's a frieze, a big stone frieze all around the interior. And he literally starts to say. “There’s a buttock here, there’s a bare buttock there.” And all the justices start gaping skyward to look at these bare buttocks.
BOB GARFIELD:
Now, of course, the answer might be from the justices, this is neo-classical art. But that's one of the issues that the Court has to confront.
DAHLIA LITHWICK:
And that's the complaint that both Justices Ruth Bader Ginsburg and Elena Kagan try to make very strongly, that if you're gonna go ahead and start fining people for shots of nudity, do it evenhandedly and across the board because by fining ABC for one shot of naked buttocks but allowing Private Ryan or allowing Schindler's List to go unsanctioned, you're setting a standard that's both arbitrary and, this is the deeper point, chills the networks, makes the networks very reluctant to ever - air anything controversial because they don't know what the standard is.
Elena Kagan says, is the policy just, quote, “that nobody can use dirty words or nudity, except for Steven Spielberg?“
BOB GARFIELD:
But there's a difference between arbitrary and capricious and nuanced, isn't there?
DAHLIA LITHWICK:
That's exactly right, and the Chief Justice really responds to that. He says, look, you don’t want us to go around saying, you can say this but not that, you can show a hip but not a rear end. So what we’re gonna do is embrace the fact that context matters and, as the Chief Justice said, there's a difference between Nicole Richie dropping the F-bomb and Saving Private Ryan.
BOB GARFIELD:
What's gonna happen? What will the ruling be?
DAHLIA LITHWICK:
I think there’s a very good chance that some version of the FCC policy stands, and that the Court really, really takes up the notion that some speech is not acceptable, in some places, at least as regards network television.
BOB GARFIELD:
If you’re right, and the Court sends this back to the FCC, saying, you know, you're pretty well doing it right as it is, it's all gonna come down to politics and the culture wars. If there is a conservative administration, the FCC will be at pains to be less lenient, and if there is a liberal administration, the FCC will be more forgiving.
DAHLIA LITHWICK:
This policy change to start going after fleeting epithets, to start going after tiny flashes of nudity really happened in 2004 in the Bush White House, and that was clearly a political climate that drove that change. But I think it's really important to caveat that with the observation that the Obama Administration has been as zealously defending [LAUGHS] this policy as the Bush Administration.
But beyond that, and this was a point that was made by FOX's lawyer, he says, look, this isn’t determined by politics at all. This is determined by the market. If we show nudity, we will lose advertisers, we will lose viewers. And so, we're self-policing enough that we don't need the government to be involved at all.
BOB GARFIELD:
Dahlia, as always, thank you so much.
DAHLIA LITHWICK:
Thank you very much for having me.
BOB GARFIELD:
Dahlia Lithwick covers legal issues for Slate.
