Supreme Court Tosses Broadcast Indecency Back to FCC

Narrow decision says the commission's rules are vague

After all the teeth-gnashing and nail-biting over how the Supreme Court might address the First Amendment issues plaguing the Federal Communications Commission's broadcast indecency rules for years, the court turned around Thursday and tossed it all back in the FCC's lap.

In a very narrow opinion, the court unanimously decided that the FCC failed to give Fox or ABC fair notice prior to their network broadcasts that fleeting expletives (on Fox) and brief nudity (on ABC's NYPD Blue) would be considered indecent.

The ruling dodged the big constitutional issues, such as whether the FCC's broadcast indecency rules—first set 33 years ago with George Carlin's "seven dirty words" monologue—violate the First Amendment.

"It's not the worst result for broadcasters, but it's not the most favorable one," said Scott Flick, a partner with Pillsbury Winthrop Shaw Pittman and longtime FCC attorney.

In 2004, the FCC departed from its rule that indecent material must be dwelled on or repeated at length, fining Fox when Bono dropped the F-bomb during an awards show and ABC for showing a bare butt in an NYPD Blue episode.

Problem was, the FCC handed down its decision on Fox and ABC broadcasts before it issued a notice of apparent liability, a procedural requirement.

"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 standards as applied to these broadcasts were vague," the Supreme Court wrote in its decision.

Even though the decision was narrow based on Fifth Amendment due process grounds, both ABC and Fox parent News Corp. said they were pleased. ABC will not have to pay the $1.4 million FCC fine. 

The First Amendment questions will have to wait for another day, leaving broadcasters with many of the same concerns they had before. Fox said in a statement: "The court recognized that the case has significant First Amendment implications that require notice to be clearer, but declined to decide the broader First Amendment issues concerning the FCC’s authority to regulate the content of speech. Those issues remain for future litigation depending on what regulatory approach the FCC takes to these broadcasts in the future. 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."

The justices were unanimous in the decision. Justice Ruth Bader Ginsburg filed a concurring opinion, and Justice Sonia Sotomayor recused herself from the case.

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