U.S. Supreme Court

Supreme Court Issues Narrow Opinion Supporting Broadcasters in FCC Indecency Case

The U.S. Supreme Court has avoided the First Amendment issue in a ruling on behalf of broadcasters fighting an indecency finding for broadcasts of the F-word and nudity.

The court ruled 8-0 in FCC v. Fox Television Stations that Fox and ABC did not have fair notice from the Federal Communications Commission that fleeting expletives and momentary nudity could be found indecent.

At the time of the broadcasts at issue, the FCC policy was to consider whether a broadcaster had dwelled on offensive material or repeated it at length, Justice Anthony M. Kennedy wrote in his opinion for the court. It wasn’t until later that the FCC held fleeting expletives could be indecent. As a result, FCC standards as applied to the broadcasts were unconstitutionally vague, he wrote.

SCOTUSblog founder Tom Goldstein writes at his blog that the decision is “very narrow” and “doesn’t decide the big questions.” Kennedy acknowledged the limited scope of his opinion for the court. “Because the court resolves these cases on fair notice grounds under the due process clause, it need not address the First Amendment implications of the Commission’s indecency policy,” he wrote.

In the case before the court, three broadcasts were targeted by the FCC: an NYBD Blue episode on ABC showing a shot of a bare female buttocks, and two Billboard Awards shows on Fox Television that broadcast fleeting expletives. Kennedy wrote that singer Cher and “a person named Nicole Richie” had both used the F-word on the awards shows. Richie had used the S-word as well in her remarks: “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.”

“Here, the court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies,” Kennedy wrote. “Given this disposition, it is unnecessary for the court to address the constitutionality of the current indecency policy.”

Justice Sonia Sotomayor did not participate in the decision. Justice Ruth Bader Ginsburg wrote in a concurrence that she believes the court should reconsider its ruling in FCC v. Pacifica Foundation, the 1978 decision upholding an FCC determination that George Carlin’s “Filthy Words” monologue was indecent. The Pacifica opinion had noted the pervasive presence of the broadcast media, its accessibility to children, and the government’s regulation of the limited broadcast spectrum.

Kennedy acknowledged the concern. “It is argued that this court’s ruling in Pacifica … should be overruled because the rationale of that case has been overtaken by technological change and the wide availability of multiple other choices for listeners and viewers,” he wrote. “The government for its part maintains that when it licenses a conventional broadcast spectrum, the public may assume that the government has its own interest in setting certain standards. … These arguments need not be addressed here. In light of the court’s holding that the Commission’s policy failed to provide fair notice it is unnecessary to reconsider Pacifica at this time.”

The case was also before the Supreme Court in 2009, when it ruled the policy switch barring fleeting expletives was not arbitrary or capricious.

Prior coverage:

ABAJournal.com: “ABC Lawyer Points to Unclothed Supreme Court Sculptures During Indecency Arguments”

ABA Journal: “A Fox Rerun: Justices Get a New Look at the Old Problem of Dirty Words”

ABAJournal.com: “Supreme Court to Decide Whether FCC Ban on Nudity, Expletives Violates First Amendment”

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