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The U.S. Supreme Court handed TV networks a win Thursday by determining that the FCC violated their due process in failing to give advance notice on policies concerning isolated instances of fleeting naughty words and nudity on television. But the high court declined to issue a much broader ruling that the broadcasters had hoped to get that the FCC’s indecency policies constituted a violation of the First Amendment.
Justice Anthony Kennedy wrote a unanimous opinion that called FCC’s past indecency enforcement “vague.”
But for the second time in five years, the justices have decided not to shake up more than three decades of legal precedent that has guided racy content on broadcast television. The high court says it won’t yet address the larger First Amendment issues. Instead, the justices are allowing the FCC to have continued authority to oversee indecency on the airwaves. Eight justices voted to vacate and remand a decision from the 2nd Circuit. Justice Sonia Sotomayor didn’t participate, and Justice Ruth Bader Ginsburg concurred.
According to Kennedy’s opinion, the FCC is free to amend its policy to further the public interest, and future courts will be able to review changes and how evolving policy will be applied. The opinion is a narrow one and likely will cause more battles over indecency in the future.
The high court was tasked with reviewing FCC policies started under the George W. Bush administration. In 2001, the FCC put out a policy statement that it would no longer punish fleeting and isolated uses of expletives. But during the next few years, the FCC changed its stance, warning Fox over curse words uttered by Cher and Nicole Richie on awards shows and fining ABC for fleeting nudity on the drama NYPD Blue. The new toughness also came amid Janet Jackson‘s high-profile “wardrobe malfunction” during the 2004 Super Bowl halftime show.
Fox and ABC challenged the FCC’s actions, and the 2nd Circuit Court of Appeal vacated the regulatory agency’s policy enforcement as “arbitrary and capricious.” In 2009, the dispute went to the Supreme Court, which reversed the 2nd Circuit but failed to make a broad ruling on the First Amendment challenges brought by broadcasters. The dispute was sent back to the 2nd Circuit, which again found that the FCC was wrong, hinting that the time had come to re-examine indecency on broadcast television in light of the development of cable television, YouTube, Twitter and various new media.
The Supreme Court granted a rare second review, taking a new opportunity to address the previous landmark ruling pertaining to indecency on the airwaves — the 1978 Pacifica decision authored by Supreme Court Justice John Paul Stevens, which upheld the FCC’s authority while preaching some vague restraint. That case is most famous for taking on late comedian George Carlin‘s “Seven Words You Can Never Say on Television” monologue and establishing that “when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.”
On Thursday, the Supreme Court took another look at the pig and decided that the FCC should provide better notice to how it determines obscenity, but the court declined to make a much bigger decision about exactly what the FCC should do. The justices deferred that judgment to the agency, and future courts will continue to review enforcement actions and broadcaster challenges.
In making the decision that the FCC should have given ABC and Fox proper notice, Kennedy based it on an interpretation of the Due Process Clause of the Constitution. In doing so, he noted that the Supreme Court “need not address the First Amendment implications of the Commission’s indecency policy or re-consider Pacifica at this time.”
In an analysis that follows, Kennedy went on to say there is no need for the FCC to “provide detailed justifications for every change or to show that the reasons for the new policy are better than the reasons for the old one.”
He said that is why when the Supreme Court ruled the first time in this case, it determined that the agency hadn’t acted arbitrarily and capriciously. Plus, it determined that the agency had a rational basis for adopting a policy on isolated and fleeting instances of profanity and nudity.
But now, upon further review, Kennedy found something else troubling. “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required,” he wrote. “This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. It requires the invalidation of laws that are impermissibly vague.”
Perhaps most important for future fights, Kennedy then added, “When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.”
The justice then said it’s clear that the FCC gave no notice to Fox or ABC that fleeting expletives or a brief shot of nudity could be actionable. “Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.”
The broadcasters get a small victory, but not the broad one they might have been hoping for. The opinion says the high court has decided not to analyze whether the commission’s powers should be looked at again in the context of whether everything has been “overtaken by technological change and the wide availability of multiple other choices for listeners and viewers.”
The outcome has disappointed First Amendment observers, who believe that the court has merely kicked the big issues into the future for yet another showdown.
“The Supreme Court decided to punt on the opportunity to issue a broad ruling on the constitutionality of the FCC indecency policy,” says Paul Smith of Jenner & Block. “The issue will be raised again as broadcasters will continue to try to grapple with the FCC’s vague and inconsistent enforcement regime.”
The TV networks are weighing in.
“We’re pleased with the decision of the Supreme Court regarding the episode of NYPD Blue, and we are reviewing the entire ruling carefully,” ABC said in a statement.
“We are pleased,” Fox spokesman Dan Berger, said in a statement. “The court recognized that the case has significant First Amendment implications that require notice to be clearer.”
The MPAA also gave comment.
“The MPAA’s preference has always been for self-regulation,” said Henry Hoberman, senior executive vice president and global general counsel. “But we are pleased that the Supreme Court today recognized that any rules regulating broadcast indecency must provide clarity and fair notice about what is permissible on the public airwaves. Vague rules that leave broadcasters guessing as to the legality of their programming chill legitimate speech, depriving viewers of the content they could otherwise enjoy.”
If there’s any doubt that this isn’t the full victory the networks wanted, the Parents Television Council has also put out a statement that proclaims 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 Winter. “The court today specifically acknowledged the FCC’s ability to continue broadcast decency enforcement as part of its public interest obligation. Pacifica is still good law. The FCC must now rule on the merits of more than 1.5 million backlogged indecency complaints. 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.”
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