The Supreme Court on Monday agreed to review the Federal Communications Commission's broadcast indecency rules in the hopes of clearing up once and for all whether things like a fleeting F-bomb or a bare butt are indecent. Oral arguments will be scheduled for this fall.
Since a year ago when the Second Circuit Court of Appeals struck down the FCC's rules in two cases (one involving Fox, the other ABC), the FCC hasn't issued a single indecency fine.
"The court's decisions—which involve both indecent expletives in live programming (Fox) and images of adult nudity in a scripted show (ABC)—preclude the FCC from carrying out its statutory responsibility to ensure that broadcasters honor their longstanding public interest obligation not to air indecent material," wrote the FCC and the Department of Justice in their certiorari petition to the Supreme Court.
Broadcasters also stand to gain from some clarity. "If they walked away from it, there would be several more years of great confusion," Scott Flick, a partner with Pillsbury Law who represents several broadcast clients, says.
The Supreme Court will consider the First Amendment issues raised by two instances: A February 2003 broadcast of ABC's NYPD Blue, which showed a full view of a woman's butt, and the FCC's "fleeting expletive" rule, established after live Fox and NBC broadcasts in 2002 and 2003 in which celebrities used the F-word.
Justice Sonia Sotomayor, who sat on the Second Circuit before President Obama appointed her to the Supreme Court, recused herself from the case.