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DoJ to Supreme Court: radio is where the “vile and lewd” stuff is

The Supreme Court heard oral arguments on Fox vs. Federal Communications Commission on Tuesday. That’s the case reviewing the First Amendment constitutionality of the FCC’s sanctions against Fox for broadcasting Cher and Nicole Richie’s famous “fleeting expletive” potty talk comments during the 2002 and 2003 Billboard Music Awards. Also attached to the case are Commission fines against various ABC affiliates for broadcasting an edition of NYPD Blue that included some brief bathroom nudity.

The FCC rulings have both been rebuked by the Second Circuit Court of Appeals on First Amendment grounds, hence the Supremes get the final word. Fox and friends were in full force to push the free speech line. But what struck my eye in reading the transcript were Department of Justice Solicitor General Donald B. Verrilli comments before the justices. Verrilli attempted to parry broadcaster arguments that broadcast television is no longer ubiquitous, hence Pacifica vs. FCC, the 1978 case that backed FCC indecency regulation on ubiquity grounds, is no longer relevant.

But he also warned the panel that if the high court sweeps away the FCC’s relatively new strictures against fleeting dirty talk, the decision will have the most impact on radio.

“I want to point out at the outset something I think is significant,” he began, “which is that their [the broadcaster’s] argument would sweep away indecency restriction with respect to radio as well as television, and they would sweep that away in the arguments they are making today without making any showing that circumstances have changed at all with respect to the ubiquity of — or accessibility of radio.”

“And I think if one looks at the FCC orders that this Court cited in its prior decision in this case, one would see that a lot of the most vile and lewd material really is in radio. So I just want to put that marker down at the beginning here because I do think it is quite important. No showing has been made about radio.”

“I didn’t quite understand that,” interjected Justice Anthony Kennedy. “Today there’s a — there is either a potential or a fact of violent and objectionable broadcasting in radio? I didn’t quite understand your point.”

“Yes. Pacifica itself, Justice Kennedy, was a case about a radio broadcast,” Verilli noted.

“Yes, I understand that. Yes,” Kennedy agreed.

“And the Respondents are arguing in this case that Pacifica ought to be overruled because the circumstances that justified its rule no longer obtain,” Verilli continued:

“I want to put a marker in at the outset here with respect to radio because I do think it’s quite important, that they haven’t made any argument that those circumstances are any different with respect to radio. It’s just as ubiquitous as it was. There isn’t even any argument that there is blocking technology available. I want to make sure, given the kind of vile material that the record demonstrates has been transmitted over time on radio, that the Court focuses on the breadth of the argument that the Respondents are making here.”

So there you have it. Radio is where the really nasty stuff is, according to Uncle Sam. But if that’s really the case, why are all the indecency suits up before the Supremes about broadcast TV?

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