Ruling avoids big-picture questions and opens door for FCC to revise guidelines

The Supreme Court on Thursday didn’t strike down the FCC’s indecency authority, or even its power to curtail so-called fleeting expletives. But in its narrow, long-awaited, ruling that avoided free speech concerns, the court certainly threw open the question of just how and to what extent the agency wants to crack down on racy content on broadcast television.

The decision raises doubts of how the FCC will move forward in addressing the nearly 1.5 million indecency complaints that have been largely on hold as the networks and the government awaited an outcome from the high court. While there was already pressure from family groups, lawmakers and some FCC commissioners, the nets will view any action with skepticism, ready to raise again the First Amendment concerns they have spotlighted all along.

The nets sought a full reappraisal of the FCC’s indecency regime, essentially an overturning of the Supreme Court’s 1978 Pacifica decision in light of the dramatic changes in technology since then. Instead, the court tried to resolve the issue on the “narrowest grounds they could have chosen,” in the words of Fordham law professor Abner Greene.

Rather than weighing in on the FCC’s authority in the digital age, the high court found fault in the way that it was carried out. Launching a crackdown on so-called fleeting expletives in 2004, the FCC ruled against Fox after Cher uttered an f-bomb on the Billboard Music Awards in 2002 and Nicole Richie swore on the same kudocast the following year, and it fined ABC stations for an “NYPD Blue” episode featuring a seven-second clip of a woman’s behind.

The networks argued that the FCC changed its policy after years of not punishing the nets for “fleeting” moments of swearing or nudity but only for repetitive use of coarse language and naked shots.

“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 standard as applied to those broadcasts were vague,” the court said.

The court’s opinion, written by Justice Anthony Kennedy, implied that the lack of specifics in the policy raised due-process concerns: “Regulated parties should know what is required of them so they may act accordingly; and precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. When speech is involved, adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.”

Observers said that the court’s narrow decision may have indicated that they were sharply divided on First Amendment issues, or would have been reluctant to issue an opinion that was a tie vote. Justice Sonia Sotomayor recused herself from the case. Justice Ruth Bader Ginsburg issued a one-paragraph, concurring opinion, writing that the Pacifica decision was “wrong when it (was) issued” and needed to be reconsidered, given “time, technological advances and the commission’s untenable rulings in the cases now before the court.”Shortly after the decision, FCC chairman Julius Genachowski said in a statement that the commission is “reviewing today’s decision, which appears to be narrowly limited to procedural issues related to actions taken a number of years ago. Consistent with vital First Amendment principles, the FCC will carry out Congress’ directive to protect young TV viewers.”

The policy was carried out by Genachowski’s predecessor, Kevin Martin, amid concerns of the coarsening of primetime content. Another commissioner, Robert McDowell, said it is “now time for the FCC to get back to work so that we can process the backlog of indecency complaints.”

The FCC could try to make its indecency policy more specific, although it is unlikely to resolve network arguments that it doesn’t make sense to patrol the airwaves with so many viewing choices from cable, satellite and the Internet. Or the agency could try to press forward with its existing policy, even if the networks are likely to argue that it remained vague even after 2004. The networks contended that the crackdown on indecent content marked a change from past practice that was arbitrary: a PBS broadcast of the Ken Burns documentary “Jazz,” in which blues singers utter expletives, was found indecent, while a broadcast of “Saving Private Ryan,” in which soldiers use foul language, was not.

The commission also could go back to standards in effect in the years after Pacifica, the decision that gave the FCC the power to sanction a station for broadcast of George Carlin’s “seven dirty words.” For years afterward, the networks argued, the FCC was concerned merely with repetitive use of expletives.

“They will have to set out a new policy,” Carter Phillips, who argued the case for Fox, told Variety. He saw in the court’s decision a “fairly sizable message of clarity” to guide the FCC: “You cannot have a situation where the broadcasters are left to guess as to whether a particular word or image are going to be sanctionable. You have to tell them this is what we think is OK and what is not OK.”

Attorney Larry Iser, partner with Kinsella, Weitzman, Iser, Kump and Aldisert, said, “You can absolutely expect that if the FCC promulgates new and more specific regulations, the networks will challenge them on Fifth Amendment grounds and also First Amendment grounds.”

While TV content often becomes an issue in an election year, and the FCC could face pressure to get moving on its backlog, Phillips said he would be “completely shocked” if the agency can do much before November, given what is currently on the agency’s plate and the complexities of moving forward.

The networks are also watching to see if the court takes up another case that could bolster their argument that FCC restrictions are outdated in light of changing technology. Some station groups are challenging the media “cross ownership” rule on First Amendment grounds, arguing the “scarcity” rationale for such regulations no longer exists with so many viewing options.

Nevertheless, there were contrasting reactions from groups on both sides of the issue.

Although the ruling was in favor of the networks, Jonathan Rintels, exec director of the Center for Creative Voices in Media, expressed regret that the high court didn’t go further. “As a result of the court’s actions, creative media artists now likely face many more years of uncertainty as to what precisely is or is not ‘indecent’ under FCC policy, and whether the policy is consistent with the First Amendment,” Rintels said. His org, representing content creators such as Warren Beatty, Steven Bochco and Tom Fontana, was an intervening party in the case.

And although the ruling was a blow to the “fleeting” expletives policy, Tim Winter, president of the Parents Television Council, highlighted a positive for his org, which has brought many of the complaints regarding objectionable content. Winter said the court “only ruled against the timing and order of events related to the FCC’s enforcement. The court today specifically acknowledged the FCC’s ability to continue broadcast decency enforcement as part of its public interest obligation.”

KEY POINTS

• FCC didn’t give broadcasters “fair notice” of what is deemed indecent.

• No ruling on FCC’s authority or First Amendment issues

• Door is open for FCC to revise its rules.

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