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High Court Avoids Constitutionality of TV Indecency Censures

WASHINGTON: The U.S. Supreme Court once again bounced TV indecency enforcement back to a lower federal court, which had ruled it “unconstitutionally vague.” The high court instead said censures against Fox and ABC for cursing and nudity could not be enforced because the Federal Communications Commission did not give the networks “fair notice” that the content could be found “actionably indecent.” The Justices kept the ruling intentionally narrow to avoid taking up the ongoing question of whether federal indecency policy is a violation of the First Amendment—for the time being.

“Here, the court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the court to address the constitutionality of the current indecency policy.” wrote Justice Anthony Kennedy, who delivered the decision. “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. And it leaves courts free to review the current, or any modified, policy in light of its content and application.”

The Justices ruled unanimously, with Associate Justice Sonia Sotomayor not participating. Only Justice Ruth Bader Ginsburg issued a statement in conjunction with the judgment, with Justice Clarence Thomas concurring that the foundation of indecency policy needs overhauled:

“In my view, the court’s decision in FCC v. Pacifica Foundation was wrong when it was issued. Time, technological advances and the commission’s untenable rulings in the cases now before the court show why Pacifica bears reconsideration.”

Pacifica represents the legal framework for indecency enforcement. Argued 34 years ago, the court then determined that broadcast signals could be regulated because they were “uniquely pervasive.” Through Pacifica, determination of indecency rests on descriptions or depictions of “sexual or excretory organs or activities,” that are patently offensive by community standards—airing on broadcast television between 6 a.m. and 10 p.m. The material must also be found to lack “artistic merit.”

Today’s decision marked the second time the high court rejected the interpretation of the Manhattan-based U.S. Court of Appeals for the Second Circuit regarding broadcast TV indecency enforcement.

The case goes back to 2002, when Cher used the F-word in a live telecast of the Billboard Music Awards. Nicole Richie did likewise in 2003. The FCC under former Chairman Michael Powell let the incidents slide because interjectory usage was not considered indecent. Then in 2006, the commission reversed itself under former Chairman Kevin Martin, who oversaw an indecency dragnet that resulted in $4.5 million in fines and other censures. While Fox wasn’t fined over the expletives, the commission charged the network with indecency violations. ABC separately was fined $1.4 million in 2008 for brief female nudity in a 2003 episode of “NYPD Blue.” (The scene, where a character's boyfriend's young son walks in on her after a shower, is pictured at right.)

Fox, joined by other networks censured for speech indecency, appealed on several points, including the First Amendment. The case went to the Second Circuit, which initially ruled that the FCC’s fleeting expletive censures were “arbitrary and capricious” without taking up the First Amendment challenge.

The FCC then appealed, and in 2009, the Supreme Court upheld the commission’s authority to regulate spontaneous cursing on broadcast TV. It also told the lower court to take up the First Amendment question of constitutionality. It did, and the following year, the Second Circuit determined that the FCC’s indecency enforcement policy was unconstitutionally vague. The “NYPD Blue” fine was argued separately in the Manhattan court, which tossed it out in 2011 on the basis of its Fox decision.

In 2009, the Supreme Court also bounced a ruling by the federal appeals court in Philadelphia against the FCC’s fine against CBS for what became known as “Nipplegate.” The incident involved the 2004 telecast of the Super Bowl, when Janet Jackson’s bare breast appeared during the half-time show. The high court instructed the Philly court to review its decision and consider reinstating the FCC’s $550,000 fine against the network and its affiliates. The Philly court ruled again last November that the fine was invalid because it was not consistent with FCC policy at the time.

The Parents Television Council, an ardent indecency watchdog group, hailed today’s decision as a “victory.”

“Once again the Supreme Court has ruled against the networks in their years-long campaign to obliterate broadcast decency standards,” said PTC President Tim Winters in a statement. “Contrary to some erroneous media reports, the Court today did not strike down the FCC’s broadcast decency policy, but in fact only ruled against the timing and order of events related to the FCC’s enforcement.”

Dennis Wharton, executive vice president of communications for the National Association of Broadcasters, did not view the ruling as a landmark decision:

“We don't believe that broadcast programming will change as a result of today’s decision, given the expectation from viewers, listeners and advertisers that our programming will be less explicit than pay-media platform providers. As broadcasters, we will continue to offer programming reflective of the diverse communities we serve, along with program blocking technologies like the V-chip that empower parents in monitoring media consumption habits of children.”

And finally, from FCC Chairman Julius Genachowski:
“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’s directive to protect young TV viewers.”

~ Deborah D. McAdams