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.

Michael Conroy/AP
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.

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.

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.

Lawyers for the broadcast companies had argued that the new, tougher FCC regulations were vague, confusing, and obsolete given the emerging popularity of cable television and internet-based programming.

Unlike broadcast programming, cable and internet-based transmissions do not rely on exclusive access to a limited band of government-controlled broadcast frequencies. In contrast, cable television relies on a distribution infrastructure that is privately built and privately owned.   

The FCC crackdown was prompted in part by several “bloopers” in which famous entertainers blurted out the S-word, or the F-word during live music awards shows broadcast during primetime. The offenders included Bono, Cher, and Nicole Richie. Such programs attract significant viewership among children and teens, and the FCC received a significant number of complaints.

The agency also received complaints about a 2003 episode of the ABC police drama NYPD Blue that featured a seven-second image of a woman’s naked buttocks. The episode aired at 10 p.m. on the east and west coasts of the US, but it was also broadcast at 9 p.m. – primetime – in the Midwest.

That was the basis of the FCC objection, that it had been broadcast at 9 p.m. rather than 10 p.m. The award shows could have used a delay procedure to bleep out any offensive language. They did not. In the alternative, the award shows could have been broadcast after 10 p.m.

Broadcast companies challenged the FCC crackdown, by noting that the agency had traditionally embraced a permissive policy that proved over time to be more advisory than punitive. Broadcasters were expected to avoid egregious violations, but the FCC made it clear that the occasional blooper or brief nudity would not trigger punishment.

That changed in 2004, when the FCC adopted new standards for what it considered “indecent” during a primetime broadcast.

The agency declared for the first time that so-called fleeting expletives and brief nudity crossed the line.

Broadcasting companies sued, seeking to reverse the policy. The Second US Circuit Court of Appeals in New York agreed with the companies, ruling that the agency did not follow the correct administrative procedure in changing its policy.

The US Supreme Court reversed that decision, and sent the case back to the appeals court for it to decide whether the FCC’s action amounted to unconstitutional censorship.

The Second Circuit ruled that the tougher FCC policy violated the First Amendment rights of broadcast companies because it was impermissibly vague and created a chilling effect on creative programming that exceeded efforts to regulate an occasional blurted swear word.

The FCC appealed and the Supreme Court agreed to take up the case.

In addition to arguing against the FCC crackdown, lawyers for the broadcasters urged the high court to overturn a 1978 legal precedent that established the basis of FCC indecency regulation. That case involved an FCC enforcement action against a radio station for broadcasting in mid-day a comedy routine by the late George Carlin.

The monologue involved Mr. Carlin’s attempt to artfully repeat and highlight each of the seven “dirty words” that the government says can’t be uttered during a broadcast on public airwaves.

The 1978 case left the high court deeply divided, but the majority justices ultimately upheld the FCC’s judgment, ruling that the government could take action to punish speech on public airwaves during primetime when that speech involved repeated and egregious use of indecent language or images that might be seen or overheard by young viewers or listeners.

In an opinion concurring in the court’s decision on Thursday, Justice Ruth Bader Ginsburg announced that she is prepared to overturn the 1978 case. “Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why [the 1978 decision] bears reconsideration,” she said.

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