Carter Phillips of Sidely Austin, last year's cover subject in Washington, DC Super Lawyers, appeared yesterday before the U.S. Supreme Court to represent his client, Fox Television, in a case concerning FCC regulation of indecent content--such as fleeting expletives on awards shows or brief nudity on a show like NYPD Blue--on the public airwaves. We caught up with him to get his thoughts on the day's arguments.
How did you think things went?
I thought things went better than I had reason to hope in some respects. The last time I argued this case in the court was on the administrative procedure issue. The chief justice and Justice [Antonin] Scalia were decidedly more hostile in that context than they were today. Not that they were supportive of our arguments but they didn't seem nearly as aggressive in their questioning. I thought everybody else who asked questions seemed to be either open-minded or decidedly favorable to our view of the world. Justice [Ruth Bader] Ginsberg made essentially the same comment she'd made the first argument around about the inconsistencies between allowing certain language to be played without editing--for Saving Private Ryan--and yet penalizing the Martin Scorsese documentary about blues singers and the expletives they used in ordinary, every-day conversation, saying, How can you reconcile the way these things are being approached? Justice [Elena] Kagan had much the same reaction. Justice [Steven] Breyer seemed a little perplexed about how the ABC partial nudity case ended up inside his fleeting-expletives case. [Backgrounder: in a ruling issued April 28, 2009, the United States Supreme Court ruled to uphold the Federal Communications Commission (FCC) fleeting expletive rule.[12] The court reversed a lower court ruling in the 2nd U.S. Circuit Court of Appeals in New York which found in favor of Fox Television that the FCC had not properly followed procedures in creating the rule. In the 5-4 ruling by Justice Antonin Scalia, "the court did not definitively settle the First Amendment implications of allowing a federal agency to censor broadcasts."]
How did that happen?
The Solicitor General {Donald Verrilli] for whatever reason decided when these two cases were resolved within a reasonably short period of time from each other that if you can get enough extensions on one and push the other one along you could actually connect them in a single cert petition. There's nothing in the rules that prohibits it. I couldn't figure out whether he thought that the court would be more outraged by partial nudity and that that would weaken their resolve about language or they thought that they would be more outraged by language and that that would weaken their resolve about partial nudity, but either way it seems the tactics backfired at least with Justice [Steven] Breyer trying to figure out what to do. On the other hand, he basically seemed, at least from my perspective, to think that if the court were simply to reaffirm what it did in FCC v. Pacifica Foundation [which permitted FCC sanction of a 12-minute monologue by George Carlin repeating seven expletives] that this would suggest that the actions here were unconstitutional because this goes way beyond Pacifica and deals with fleeting expletives. Again, he's still going to have to figure out what rule he wants to adopt for fleeting nudity (laughs).
I thought there some amusing moments. At one point Justice [Samuel] Alito asked me, Isn't broadcast television essentially going the way of the buggy whip and if we just let it go it will die on its own, and I suggested that my clients wouldn't be that enthusiastic about that development (laughs). Obviously, to the extent what they're talking about is true over the airwaves, not aided by satellite or cable, I think the answer may be yes. I think over time eventually there will be no point in having over-the-airwaves broadcast. These content providers called networks will provide content on a mechanism other than the spectrum and in part that will be driven because the independent uses of the spectrum will become so valuable it will be in the government's interest to sell them to people who will pay the highest price.
And in respect to Seth [Waxman's] part of the case [Waxman represented ABC], he had the best catch of all, because he and I talked about it as we were sitting in the courtroom looking up at the friezes, in that candidly there are two naked butts on the friezes, and one of them is actually fairly weird because it's an older man who's got his arm around the boy and his hand on the boy's rear end. Anyway, so, I can't exactly remember how the question came up, but Seth made a reference to the frieze and all the justices are looking up and I pointed up in the corner to the one that was the most striking, at least from where I was sitting, which caused Justice [Antonin] Scalia to say, Huh, I've never noticed that (laughs).
Verrilli was really good, he did a good job. He made a big push about radio, saying nothing has changed on the radio side, but we were ready for that one. All we're asking for is television, where I do think things have changed pretty dramatically over the last 30 years.
I think it is quite possible that there could be four or five different opinions in this case, which suggests that we probably won't hear anything until fairly late in June, but I would be deeply disappointed and even quite surprised ultimately if the Court doesn't find a way to affirm what the Second Circuit did, even if for reasons other than the ones offered up by the Second Circuit.
Were there any surprises for you?
Yes, seeing the naked butt on the guy (laughs). No, not really. The only surprise was I thought that Justices Scalia and the chief justice would be a little more aggressive than I thought they were. Not that they were hitting me with kid gloves, but the last time it was a much more hostile tone. I don't know what drives that, I don't know if they have their own misgivings about their resolve or if they realize that this notion of creating a safe haven really is flatly at odds with any notion of the First Amendment, where you can't say, Well, we're going to disadvantage one form of speech in order to allow another form of speech to flourish, the argument being if cable is getting more and more coarse we need to have something to counterweight that, so let's stick it to broadcast. If you followed that logic obviously you'd say, well, magazines have gotten more and more nasty, so newspapers have to be nicer and nicer and can't print stuff about wars or things like that that would upset people. You've got to have that safe harbor.
You offered the argument that there already is a regulating mechanism in place for broadcasters in the form of advertisers. Did you feel that got some traction?
Well, certainly people noticed it. A couple heads nodded during that period, and obviously Verrilli felt the need to come back in and say something about advertisers as part of his rebuttal.
It would be foolhardy to think that networks, at least the broad sweep in general, are going to risk audience share or advertising revenue for anything that they think would cause it a serious, irreparable problem.
The real concern here ought to be live broadcasting. This is the one thing that is virtually impossible to regulate. Even with time delays there are going to be mistakes made. I mean the most outrageous thing, I guess if I was surprised by anything, I was surprised that Verrilli could stand there and say with a straight face that the FCC has a scienter requirement here because the FCC has taken precisely the opposite position, which is that all they have to know is that you intentionally broadcast, not that you knew what you were broadcasting was indecent or even remotely suspected it, it's that you knew that what you were doing was broadcasting. Well, most broadcasters I think probably intend to broadcast, but none of them intends to broadcast offensive material, so if you're essentially in a strict-liability world where you offer the s-word and it ends up being broadcast across national television you are now on the hook for $10 million to $20 million in forfeiture penalties. Not a lot of companies--I don't care how big they are--are going to take that much of a hit. Instead, they're going to say, Just don't take the chance. And that's in spades when you're talking about much smaller, local stations that simply can't afford to take the risk that there's going to be a sign that's going to be held up on a poster that has language that the FCC has strictly forbidden. There isn't anything they can do about that. Putting aside, that it's ridiculous, I don't know what world any of those guys at the FCC are living in, but in the world I inhabit that language is ubiquitous. It has little or nothing to do with broadcast TV. It's everywhere else I go that I hear these words, particularly sporting events (laughs).
There was another amusing moment, although I don't know if he meant it amusingly. Chief Justice Roberts was trying to say that context makes all the difference in the world and that a young child would understand the difference between the use of the f-word if an adult slams his finger with a hammer as opposed to the s-word in the case of Nicole Richie [saying it on air], which I thought was curious because I'm not sure that it's true (laughs), at least if the concern is that this is expanding the child's vocabulary, aside from the obvious lack of desire by the child to bang his own finger with a hammer, I don't know why once they hear the word and they're trying to process it, exposure in one context would be substantially different than in any other context, but it suggested to me that perhaps maybe his own children might have heard that language from him while doing home repairs (laughs).
Were there any strong words used today in court?
No, unlike the last argument in the Supreme Court where it would have been easier to be able to use the words as part of the ordinary give and take in the conversation, today there wasn't any point when I was talking that I thought to myself this would be a place where I would use the words, although I have to say dropping the f-bomb on the Second Circuit was a lot of fun.
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