Supreme Court Knocks Down FCC Indecency Rules in Fox Case, Ducks First Amendment Question

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Supreme Court says FCC didn't give adequate notice of policies on "fleeting expletives" and brief nudity — leaves it open for FCC to modify the rules

The Supreme Court on Thursday vacated key FCC enforcement actions based on "fleeting expletives" and brief nudity, saying the commission had not given networks adequate notice of changes in its policies.

The broadcasters could not have known in advance about the fleeting expletives and nudity and that they would give rise to sanctions, the court said.

It did allow that the FCC is free to address its policy, thus avoiding the question of whether the rules were allowable under the First Amendment.

The vote was 8-0, with Justice Sonia Sotomayor recusing herself because as an appeals court judge, she heard the case before it went to the Supreme Court.

The case — FCC vs. Fox Television Stations — was the result of challenges from Fox TV and other broadcasters to the FCC’s decision in 2004 to adopt a stricter standard regulating off-color language on broadcast television. The Supreme Court agreed to combine its review of the Fox case with a separate FCC case stemming from the appearance of actress Charlotte Ross’ bare buttocks on a 2003 episode of ABC’s “NYPD Blue.”

"Because the commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the commission's standards as applied to these broadcasts were vague," the court said in an 8-0 ruling.

Also read: Supreme Court to Decide if FCC Can Fine Networks for Language, Nudity

The court's decision Thursday leaves the FCC free to modify its rules — and detail them for networks.

The FCC adopted the tougher standard — barring the utterance of even “fleeting” indecencies on air — in the wake of public complaints about several high-profile incidents, including Janet Jackson’s breast-baring wardrobe malfunction during the 2004 Super Bowl half-time show.

Though it was one of the factors that played into the FCC's adoption of stricter standards, the Jackson incident was not part of the case. It arose over the use of the F-word by celebrities during Fox’s 2002 and 2003 broadcasts of the Billboard Music Awards shows.

During the first year’s awards show, Cher used the F-word. During the following year’s broadcast coverage, Nicole Richie used the F-word and joked about challenges of getting “cow shit out of a Prada purse.”

Also in 2003, U2 rock star Bono said "fucking brilliant" during NBC’s coverage of the Golden Globes Awards.

Also read: FCC Renews Its Battle to Oversee Indecency

In the "NYPD Blue" matter, the FCC fined dozens of ABC TV network affiliates a total of more than $1 million for airing the episode.

The FCC expectedly expressed disappointment with Thursday's ruling.

“Today, the Supreme Court held that the FCC failed to provide fair notice that Fox’s airing of fleeting expletives and ABC’s broadcast of brief nudity during an NYPD episode would trigger enforcement action and, therefore, the indecency standards as applied to these broadcasts were impermissibly vague," Commission Robert McDowell said in a statement.

"The FCC must expeditiously implement the Court’s decision to put an end to years of litigation and uncertainty regarding the Commission’s regulation of indecent content on America’s airwaves. As a matter of good governance, it is now time for the FCC to get back to work so that we can process the backlog of pending indecency complaints – which currently stands at just under 1.5 million involving about 9,700 TV broadcasts."  Some of these complaints date back to 2003.  We owe it to the American public and the broadcast licensees involved to carry out our statutory duties with all deliberate speed."

Other groups lauded the decision.

The Motion Picture Association of America addressed the vagueness of the FCC's rules: 

"The MPAA’s preference has always been for self-regulation," said spokesman Henry Hoberman. "But we are pleased that the Supreme Court today recognized that any rules regulating broadcast indecency must provide clarity and fair notice about what is permissible on the public airwaves. Vague rules that leave broadcasters guessing as to the legality of their programming chill legitimate speech, depriving viewers of the content they could otherwise enjoy."

"NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content," National Association of Broadcaserts spokesman Dennis Wharton said in a statement following the decision. "As broadcasters, we will continue to offer programming reflective of the diverse communities we serve, along with program blocking technologies like the V-chip that empower parents in monitoring media consumption habits of children."

"We're happy that the Supreme Court struck down the illegal fines against Fox and ABC," watchdog group Public Knowledge said in a statement. "The Court has held that the FCC cannot hold broadcasters to overly vague standards about what is and is not allowed on the air. This is the right result, although the Court did not address whether the indecency rules violate the First Amendment. In this case, our primary concern was free expression, not administrative procedure.

"We have been, and still are, concerned with the First Amendment problems caused by the FCC's current indecency rules. But those problems will have to be addressed another time."

"We're pleased with the decision of the Supreme Court regarding the episode of 'NYPD Blue,' and we are reviewing the entire ruling carefully,” ABC said in its statement Thursday morning.

In 2009, the Supreme Court ruled that the FCC had followed the proper procedures in broadening its policy in 2004 to ban even fleeting indecencies. But the high court did not decide whether the agency’s indecency prohibitions violated the constitution.

The following year, the U.S. Court of Appeals for the Second Circuit in New York held that the FCC’s policies banning “fleeting expletives” were unconstitutionally vague.

In addition, the appellate court overturned the ABC fines over the nudity during “NYPD Blue” show. Both Fox and ABC have been contending that the FCC’s indecency regulations violate the First Amendment.  

The Obama administration asked the Supreme Court to review the appeals court’s decisions.

In April, the Obama administration also asked the Supreme Court to review a federal appeals court decision throwing out a $550,000 FCC indecency fine levied against CBS over Janet Jackson’s breast-baring incident during the 2004 Super Bowl half-time show.

The Third Circuit federal appeals court in Philadelphia tossed out the fine against the network over Jackson’s baring of her breast last year, contending that the FCC’s effort to enforce a beefed-up indecency standard in the CBS case was arbitrary and capricious.