The Supreme Court on Thursday struck down the FCC’s punishments of the broadcast networks for airing so-called fleeting expletives, calling the rules “vague,” but avoided weightier free speech questions and held open the possibility of the agency revising its indecency policy.
In an 8-0 opinion, the high court said on Thursday that the FCC’s Bush-era crackdown on unexpected utterances of swear words and brief shots of nudity was undertaken without giving the broadcast networks proper notice.
“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 ruling was the latest in a legal showdown that started in 2004, when the FCC took a hardline approach toward celebrities uttering swear words on award telecasts and, perhaps most famously, Janet Jackson’s fraction of a second flash of her breasts in the infamous “wardrobe malfunction” during the Super Bowl halftime show.
The case stemmed from the FCC’s ruling 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. Although the case originally dealt with such “fleeting expletives,” its ramifications were great enough that it was combined with another challenge to the FCC’s policy: ABC’s suit against the government after its stations were fined $1.24 million for showing an episode of “NYPD Blue” featuring a seven-second clip of a woman’s behind.
The networks argued that the FCC had changed its policy after years of not cracking down on “fleeting” moments of swearing or nudity, having instead punished repetitive use of coarse language and naked shots.
The ruling does not strike down the current indecency policy, even toward fleeting expletives, but the procedures that were followed. Yet were the FCC to start acting on complaints, the networks would likely to continue to argue that the policy is vague, and arbitrary in the way that it is carried out.
The court’s opinion, written by Justice Anthony Kennedy, even implied that the lack of specifics in the policy raised the 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.”
FCC chairman Julius Genachowski said in a statement: “We are 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, and its implementation has largely been on hold in recent years given the court challenges.
Commissioner Robert McDowell said, “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.”
Tim Winter, the president of the Parents Television Council, which has brought many of the complaints over objectionable content, said that 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.”
A Fox spokesman said in a statement that the network was “pleased” with the decision but left open the possibility of further court action on First Amendment grounds.
“Those issues remain for further litigation depending on what regulatory approach the FCC takes to those broadcasts in the future,” the spokesman said. “We have always believed that the government must tread carefully with regard to matters implicating speech, and we hope in the future broadcasters will have the ability to rely on a governmental review process that takes careful account of the important constitutional principles at stake.”
A spokeswoman for ABC said, “We’re pleased with the decision of the Supreme Court regarding the episode of ‘NYPD Blue,’ and we are reviewing the entire ruling carefully.”
The court stopped short of issuing a sweeping decision that would have scaled back the commission’s authority to regulate indecent content overall, as the broadcast networks wanted. The networks argued that the FCC policy chilled free speech, but they also asked the court to reconsider its landmark 1978 decision in FCC vs. Pacifica, in which the court ruled that the government could sanction stations for airing indecent material. That case centered on a radio broadcast of George Carlin’s famous “seven dirty words” monologue during the middle of the day.
The broadcasters argued that because there are so many other choices competing for viewers, it made no sense for them to have to comply with stringent indecency guidelines when other media did not have the same constraints. In a one-paragraph, concurring opinion, Justice Ruth Bader Ginsburg said 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.”
Jonathan Rintels, executive director of the Center for Creative Voices in Media, expressed satisfaction at the ruling but 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,” he said. Rintels’ org, representing content creators such as Warren Beatty, Steven Bochco and Tom Fontana, was an intervening party in the case.
Despite the appeal to the conservatives’ libertarian sensibilities, it was clear during oral arguments in January that some of the justices still favored the FCC’s authority, seeing broadcast television and the family hour as a safe harbor from objectionable content elsewhere in the TV universe.
“That cuts both ways,” Chief Justice John Roberts said during the arguments. “People who want to watch broadcasts … where these words are used, where there is nudity, there are 800 channels where they can go for that. All we are asking for, what the government is asking for, is a few channels where you can say, ‘I’m not going to … hear the s-word, the f-word.”
Justice Samuel Alito suggested that the problem would disappear because “broadcast TV is living on borrowed time.” Justice Antonin Scalia said that because the airwaves were public, the government “is entitled to insist upon a certain modicum of decency.”
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 high court originally ruled in 5-4 in favor of the FCC in 2009, but it was on procedural grounds, and constitutional questions were left to a lower court. To little surprise, the 2nd Circuit Court of Appeals ruled in favor of Fox, and the FCC appealed back to the Supreme Court.
Justice Sonia Sotomayor recused herself from the decision on Thursday.