U.S. Supreme Court

Supreme Court to Decide Whether FCC Ban on Nudity, Expletives Violates First Amendment


The U.S. Supreme Court will revisit the Federal Communications Commission’s indecency ban in two cases accepted for review today.

The Supreme Court didn’t reach the First Amendment issue when it ruled in 2009 that an FCC policy switch barring so-called fleeting expletives was not arbitrary or capricious.

Since then, the New York-based 2nd U.S. Circuit Court of Appeals has ruled in two cases that the FCC’s indecency policy violates the First Amendment because it is unconstitutionally vague. One case concerns an NYPD Blue episode with a shot of a female character’s nude buttocks. The other concerns four-letter words in awards broadcasts.

The FCC policy at issue bars broadcast of indecent material during day and evening hours. The agency has said indecent material involves “patently offensive” depictions or descriptions of sexual or excretory organs or activities.

The United States had sought review, Fox News reports. The network was penalized in one of the cases for fleeting expletives used by Bono, Cher and Nicole Ritchie during awards programs. The government’s cert petition (PDF posted by SCOTUSblog) does not spell out the words that led to penalties. Instead, the government brief uses asterisks after an initial “f” and an initial “s.”

The cases are FCC v. Fox Television Stations Inc. and FCC v. ABC Inc. Justice Samuel A. Alito Jr., who voted with the majority in the 5-4 Supreme Court decision in 2009, said earlier this month that he should have recused himself because he owned stock in ABC’s parent Walt Disney Co. He has since sold his stock and will be able to participate in the new appeal.

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