But on Tuesday they were being asked to rule on it, and the discussion was more titillating than usual.
The subject? The Federal Communications Commission’s ability to police obscenity on broadcast television.
To make the point that potentially objectionable nudity was not the sole province of broadcast networks, ABC lawyer Seth Waxman glanced up at the frieze in the courtroom and noted, according to “USA Today,” “There’s a bare buttock there, and there’s a bare buttock here. I had never focused on it before."
“Me neither,” said Justice Antonin Scalia.
Fortunately for the Supreme Court justices and all others who prefer to be untroubled by bare buttocks, there is a whole body of people who focus on these things. They are called the Parents Television Council, and they spend their days taping everything that’s on television and going through it for objectionable material with a fine-toothed obscenity comb, if that’s the phrase I mean.
Television warps our children’s development, they argue. But unfortunately you so seldom have children who point at the television and scream, “Help! My development’s being warped!” So this task is left to members of the PTC, who are forced to watch and rewatch hours of footage of young and nubile houris removing their clothes and edit it into a montage of Footage Of Which We Especially Disapproved, accompanied by the Britney Spears classic “I’m a Slave 4 U.” I am not making this up. They evidently view this as something of a sacred trust.
In a recent interview, Winter, PTC President Tim Winter noted that it was critical to get specifics. “If you are a proctologist, you are involved with certain things in your work that might not be dining-room conversation for most folks. . . . We pick our careers here at this organization because we are concerned about the impact on kids, and that means you have to get clinical.”
Television’s full of objectionable things, once you start looking. And the PTC certainly looks. Then it complains to the FCC, which duly charges the network with — whatever it was.
It’s long been said that indecency is in the groin of the beholder. That’s especially true these days, where no one seems to have a clear standard for what’s indecent. “Saving Private Ryan”? Couldn’t possibly be FCC-complaint-worthy. That’s a Spielberg film. A PBS documentary on blues singers? Sounds wrong already.
“It's like nobody can use dirty words or nudity except for Steven Spielberg,” said Supreme Court Justice Elena Kagan.
Broadcast networks Fox and ABC were trying to argue before the Supreme Court that the FCC’s efforts to regulate their content are an infringement on their First and Fifth Amendment rights to free speech and due process. Unlike a few decades ago, when they were uniquely pervasive and it made sense to shield viewers from all the lewd displays generally to be found elsewhere, there’s now cable in every house and the Internet in every phone. What’s the point in trying to police poor Fox, which is hard-pressed enough as it is, what with having to find 18 more American idols?
The justices still saw some point.
“If we rule in your favor on First Amendment grounds, what will people who watch Fox be seeing between 6 a.m. and 10 p.m.? Are they going to be seeing a lot of people parading around in the nude and a stream of expletives?” asked Samuel Alito.
Still, most acceptable censorship is based on the idea that there are some environments where it is acceptable to police what is said — because children are watching, because the airwaves are public and the public gets some say in what goes over them, or just because you don’t like to have people yelling, “NUDITY AND OBSCENITY!” in the middle of a crowded theater.
But for broadcast television, this depended on the idea that broadcasters possessed a captive audience that would be adversely affected and that there was a clear standard of indecency that could be applied. Neither of these is still true. Most would argue that, at best, the FCC’s guidelines are vague. “If they weren’t vague,” the FCC argues, “you’d be able to get around them.” This seems wrong. Meanwhile, nine out of 10 households now have cable and all but 28 percent have broadband.
Maybe this makes the FCC even more crucial. With the forces of misrule hemming it in on every side, broadcast remains the sole bulwark of decency. Leave your child unattended in front of a television without cable, and you can be fairly certain that nothing terrible will happen. You won’t turn your back for a second and discover that the letter F is sponsoring a special episode of Sesame Street and Big Bird is dropping S-bombs. Sure, Big Bird is nude, but bird nudity has never been high on anyone’s list of Worrisome Censorship Things.
Lose the censorship authority, and then what?
We’ll see how the court rules. I just hope they don’t relieve the FCC of its responsibility. Then the PTC would have nothing to do with all that footage.