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Supreme Court says broadcast decency standards too vague

The Supreme Court ruled that the FCC didn’t give broadcasters enough notice before enforcing new standards on language and nudity. But because the court didn't address the underlying constitutional issue of free speech, a variety of interest groups all claimed a measure of victory.

By Staff writer / June 21, 2012

Madonna, center, performs with Nicki Minaj, left, and M.I.A. during halftime of the NFL Super Bowl football game broadcast on NBC in February from Indianapolis. During the performance, British rapper M.I.A. used an obscene gesture.

Michael Conroy/AP



The Federal Communications Commission failed to give fair notice to television broadcast companies before enforcing tough new standards against brief instances of foul language and nudity during primetime, the US Supreme Court ruled on Thursday.

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The high court reversed FCC enforcement decisions against both Fox and ABC, saying that the commission’s new standards for indecency were so vague that the companies could not know precisely what was forbidden.

But in a surprising move, the justices declined to address the larger, more important, issue raised in the case – whether the FCC’s tough indecency policy violated the broadcasters’ free speech rights under the First Amendment.

“Because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy,” Justice Anthony Kennedy wrote for the court.

The court voted 8 to 0 to resolve the case in this fashion. Justice Sonia Sotomayor did not participate because she had served on an appeals court panel that heard an earlier stage of the case.

The action invalidates FCC orders against the two networks. It also reverses imposition of $1.24 million in fines levied by the FCC against ABC stations.

“This opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements,” Justice Kennedy wrote. “And it leaves the courts free to review the current policy or any modified policy in light of its content and application.”

Because the case was resolved without addressing the underlying constitutional issue, a variety of interest groups all claimed a measure of victory.

The Parents Television Council, which favors stricter indecency standards, praised the court for allowing the FCC’s tough policy to remain in place.

“The Court today specifically acknowledged the FCC’s ability to continue broadcast decency enforcement,” said PTC President Tim Winter, in a statement.

“The FCC must now rule on the merits of more than 1.5 million backlogged indecency complaints,” he said. “The notice requirement, which allowed Fox and ABC to slip off the hook in these two cases at issue today, has already been satisfied for all the pending complaints.”

TV Watch, a group that promotes parental controls like the V-Chip and content ratings, said the Supreme Court’s decision supports its outlook.

“Parents, not the government, are the best arbiters of what their children should be watching on TV,” Executive Director Jim Dyke said in a statement.

Andrew Schwartzman, a First Amendment lawyer with the Center for Creative Voices, praised the high court’s decision, but said it didn’t go far enough.

“The Court’s decision quite correctly faults the FCC for its failure to give effective guidance to broadcasters. Its lack of precision has been a particular problem for writers and others in the creators’ community,” he said in a statement.

“It is, however, unfortunate that the justices ducked the core First Amendment issues,” he said. “The resulting uncertainty will continue to chill artistic expression.”

The case stems from an FCC crackdown in 2004 against so-called fleeting expletives and brief images of nudity during primetime on broadcast television.

At issue when the case was argued in January was whether the crackdown amounted to unconstitutional censorship in violation of the First Amendment.

The FCC has claimed the authority to require family-friendly programming from 6 a.m. to 10 p.m. by television broadcasting companies that are being permitted the use of public airwaves.


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