Hollywood's Snotty Day in Court

By Brent Bozell
Friday, January 13, 2012

It was symbolically perfect that on the same day Hollywood went to the Supreme Court to make the case for broadcast profanity, Entertainment Weekly reported that the next showing of the ABC smutcom "Modern Family" would feature a two-year-old girl dropping the F-bomb. The episode's title will be "Little Bo Bleep."

Shameless. There's no other way to describe the people running these networks. We're told "It might be the first time in a scripted family broadcast TV series where a child has said the F-word." But it won't be the last -- especially if the high court grants Hollywood's demands and shreds any regulation of nudity or profanity on TV.

The most telling exchange in the oral arguments came when Justice Stephen Breyer told former Clinton Solicitor General Seth Waxman, who represents ABC, he couldn't find Hollywood's idea of what they wanted the content regulations to be.

It is because, as Waxman admitted, they suggested no standard. "In our brief, we don't suggest what the rule should be, because (A) it's not our burden; (B) it's not yours; and (C) there are any number of options." Who's going to implement the options Waxman suggests if it's no one's burden to do so? What Hollywood really wants is to shred the 1978 decision in FCC vs. Pacifica Foundation that insisted on a decency regime from 6 a.m. to 10 p.m.

"It's not our burden." The TV networks don't want to be held accountable by anyone for what they broadcast. They're not arguing that regulation is unnecessary because they already provide a glorious safe haven for children. They argue that it's unfair to discriminate against the broadcast networks because cable and satellite television are smutty. So why not let everyone race to the gutter? Their utter shamelessness is transparent, as they stand before the Supreme Court justices insisting the Founding Fathers in some sort of time warp would protect the networks? First Amendment right to televise Paris Hilton swearing like a sailor in the nude in front of Thomas Jefferson's children.

Carter Phillips, the lawyer arguing on behalf of Fox Television, said that the FCCs policies suddenly became "dysfunctional" in 2004, when "thousands and thousands" of complaints began streaming into the FCC.

What's dysfunctional wasn't Janet Jackson getting her bra ripped off during the Super Bowl halftime show in front of millions of children. What's dysfunctional wasn't Paris Hilton and Nicole Richie swearing at an awards show on Fox in a clearly pre-scripted bit of profanity. What wasn't dysfunctional was "NYPD Blue" showing a young boy walking in on a nude woman in his bathroom. What was dysfunctional was letters of protest sent from Idaho, Texas and Ohio.

This is their standard of corporate responsibility: We have none, and we resent that someone would send a letter to Washington insisting that we do.

Team Obama deserves some credit. Even though their FCC under Julius Genachowski is a paper tiger with the TV "tastemakers," Solicitor General Donald Verrilli did defend the current FCC policies in court. He effectively pointed out that broadcasters want to have it both ways.

"The spectrum licenses they have are worth billions and billions of dollars. Spectrum is staggeringly, staggeringly scarce, and they're sitting on an enormously valuable resource which they got for free," he noted. "Then they have a statutory benefit of 'must carry' which gets them on cable systems automatically, and a further statutory benefit of preferred channel placement." And yet, despite all this favoritism from Congress, these billionaire sultans of sensationalism are complaining about the government. Yes, somehow, they're unfairly picked on by red-state grandmas on a fixed income who write letters.

Perhaps the worst thing to recognize in these oral arguments is just how lawyers like Phillips can argue fiercely against reality. Justice Samuel Alito asked: "If Hollywood were free to broadcast without FCC meddling, might we see streams of expletives and parades of nudity?"

Phillips replied: "Not under the guidelines that Fox has used consistently from 10 p.m. until 6 a.m." Ahem. Not only does Fox display no identifiable "guidelines" on taste at any hour, it doesn't broadcast any shows after 10 p.m. Fox stations air late news at 10 p.m.

The Supreme Court should stay the course with the FCC. No one should expect Hollywood to improve. But at least there's still a threadbare expectation that Hollywood should try and behave when children may be watching.