The networks said the rulings violate the First Amendment and the Fifth Amendment’s guarantee of due process.
Kagan sympathized with what the networks said was a quandary in not knowing exactly what the FCC would find objectionable. For example, the FCC allowed profanity in an ABC broadcast of the movie “Saving Private Ryan” but disallowed some of the same words in a PBS documentary about blues singers. It fined ABC over the “NYPD Blue” episode but allowed full frontal nudity in a broadcast of the movie “Schindler’s List.”
“The way that this policy seems to work, it’s like nobody can use dirty words or nudity except for Steven Spielberg,” Kagan quipped, calling it a “serious First Amendment issue.”
Justice Ruth Bader Ginsburg was concerned as well, she said, about FCC “censors.”
Seth Waxman, who was a solicitor general in the Clinton administration and was representing ABC, said such subjective standards are “constitutionally intolerable.”
He also said family groups were flooding the FCC with trivial complaints, such as “the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks.”
The justices looked up at the friezes on all four walls of their courtroom. “Right over here, Justice Scalia,” Waxman directed.
The justices are considering decisions from the U.S. Court of Appeals for the 2nd Circuit in New York that found for the networks, saying the agency’s context-heavy determinations about indecency mean that broadcasters “are left to guess” when profanity and nudity might be deemed appropriate or punishable.
Justice Sonia Sotomayor, who served on that court, has recused herself from the cases. They are FCC v. Fox Television Stations and FCC v. ABC.