Supreme Court Shoots Down FCC Fines For Fleeting Expletives/Nudity In Narrow Ruling

Rules Intact For Now

The Supreme Court, in a narrow ruling confined to due process considerations, has vacated and remanded the Second Circuit Court of Appeals ruling in the FOX V. FCC "fleeting expletives" case that found the FCC's indecency rules unconstitutional and found only that the FCC gave inadequate notice of its rules to plaintiffs FOX and ABC, but the ruling stuck to procedural issues and left unconsidered for now the constitutionality of the rules themselves.

The Supreme Court decision found that the Commission failed to give FOX or ABC fair notice about the impermissibility of fleeting expletives or momentary nudity, making the application of that standard vague, but the ruling does not extend to a consideration of the merits of the rules or a reconsideration of the PACIFICA "seven words you can't say on television" case.  The decision was unanimous, with Justice SONIA SOTOMAYOR recusing herself and Justice RUTH BADER GINSBURG joining only with an opinion concurring in the judgement.

The court explained, "First, 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 or reconsider PACIFICA at this time. Second, because the Court rules that FOX and ABC lacked notice at the time of their broadcasts that their material could be found actionably indecent under then-existing policies, the Court need not address the constitutionality of the current indecency policy as expressed in the GOLDEN GLOBES Order and subsequent adjudications. Third, 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 leaves courts free to review the current, or any modified, policy in light of its content and application."

NAB Statement On Supreme Court Ruling

In response to TODAY's ruling by the Supreme Court regarding the FCC's indecency regulations, NAB EVP/Communications DENNIS WHARTON said, "NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content. 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."

The Supreme Punts Again in the Fox Case

GREGG P. SKALL of D.C.-based WOMBLE CARLYLE SANDRIDGE & RICE, LLP, who writes FCC UNCENSORED for ALL ACCESS, noted:

"Because the SUPREME COURT decided the case on fair notice grounds under the due process clause, it did not address the First Amendment implications of the Commission's indecency policy or reconsider Pacifica, at this time. The SUPREME COURT left broadcasters again to 'twist slowly in the wind.' This question of what is indecent, or even whether indecency regulation remains constitutional is left an unfinished work and what is permissible First Amendment limit of broadcasting under the indecency standard, or whether the indecency standard remains undecided.

"The COURT leaves for another day, and for another brave broadcaster to challenge, the question of whether or not the First Amendment prohibits FCC regulation of the type of language at issue in the Fox cases or the type of visuals at issue in the ABC case. The decision was essentially decided on the Fifth Amendment due process standard that is a fundamental principle of American jurisprudence that those who are regulated must give fair notice of what conduct is required or proscribed.

"But we still do not have that fair notice. Until the FCC acts to provide proper guidance under the Fifth Amendment due process clause deemed so important by the Supreme Court, perhaps under a new rulemaking proceeding, broadcasters are still left with an extremely vague standard to consider when speech or visual depictions would be deemed to be indecent. It is not clear that the examples that now went to the SUPREME COURT, in the FOX and ABC cases, provide that guidance or whether the Commission will have to issue new, more specific guidance and offer broadcasters an opportunity to participate with comments in rulemaking.

SKALL concludes "This is like watching a football game comprised entirely of punts. No passes, no runs, just punts."

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