Fox "fleeting expletives" decision does little to clear the air in regulation of indecency

High court dodges First Amendment issues on controversial policy
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Although the U.S. Supreme Court has ruled on the issue of fleeting expletives twice in three years, questions about what constitutes indecent programming on the public airwaves still remain largely unanswered.

AP Photo by Damian Dovarganes

Reality TV star Nicole Richie

In June, the high Court decided the case many legal observers thought would definitively find the agency’s indecency policy unconstitutionally vague under the First Amendment. The particularly hopeful among them thought the ruling would drastically change how the broadcast media — as an industry — generally are regulated.

But the narrowly decided opinion, which was a victory for the networks that faced millions of dollars in FCC-imposed fines, did not address the First Amendment implications of the policy.

Rather, it explicitly authorized the agency to modify its current indecency policy and lower courts to review that or any modified policy based on its content and application — a decision that makes further self-censorship by broadcasters and review by the Supreme Court likely, media advocates say.

The ruling: Due process v. First Amendment vagueness

The Court found in Federal Communications Commission v. Fox Television Stations, Inc. that the government agency violated constitutional due process procedures by not providing adequate notice of increased efforts to enforce its indecency rules before imposing fines. Rooted largely in criminal law, the constitutional due process doctrine requires that individuals know precisely what conduct is prohibited so that they can adequately conform their conduct to the law.

“Regulated parties should know what is required of them so they may act accordingly ... ; Precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way ... ;When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech,” Justice Anthony Kennedy wrote in an 8-0 decision. Justice Sonia Sotomayor did not participate in the ruling.

“These concerns are implicated here because, at the outset, the broadcasters claim they did not have, and do not have, sufficient notice of what is proscribed ... ; [nor] fair notice of what was forbidden.”

Because the Court resolved the matter on these grounds, there was “no need to address the constitutionality” of the vaguely worded policy’s ban on isolated utterances of profanities and images of nudity, Kennedy said on June 21 in announcing the Court’s ruling. The nearly 18-page opinion, only about seven pages of which discuss the legal issues — an anomaly for a Court that regularly issues hundreds-pages opinions — demonstrates the narrowness of its holding.

“Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court,” it stated, quoting a 1950 Supreme Court opinion.

The decision voids the fines imposed for three past instances of so-called fleeting expletives and momentary images of nudity: the broadcast of reality star Nicole Richie’s utterance of two expletives — “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple” — during a live airing of the Billboard Music Awards in 2003; Cher’s unscripted statement during a televised acceptance speech that “People have been telling me I’m on the way out every year, right? So fuck ‘em”; and the brief display of nudity in a 2003 episode of ABC’s “NYPD Blue.”

It also foreshadowed the Court’s decision about a week later to decline review of FCC v. CBS Corp., another lower court’s ruling that the agency improperly fined the network for the infamous “wardrobe malfunction” of pop star Janet Jackson during the 2004 Super Bowl halftime show.

But the Fox Court did not decide whether the FCC’s broadcast indecency policy, under which the fines were imposed, chills free speech — a “disappointing” and “frustrating” outcome that provides “no greater certainty” about what speech the policy restricts and how it is applied, said Stephen Wermiel, a constitutional law professor at American University in Washington, D.C.

An independent government agency, the FCC first exercised its Congressionally vested authority to regulate indecent material over the public airwaves in 1975, when it fined a New York radio station for airing comedian George Carlin’s “Filthy Words,” a 12-minute monologue rife with expletives, in the afternoon.

In 1978, the Supreme Court in FCC v. Pacifica upheld the FCC’s actions and has continued to rely on the medium’s twin pillars of pervasiveness and accessibility to children to justify limited First Amendment protection for broadcast speech.

Following Pacifica, the agency did not fine broadcasters for fleeting expletives. But although the wording of its indecency policy did not change, the agency’s method of enforcement did, after U2 frontman Bono exclaimed during a live broadcast of the 2003 Golden Globe Awards, “This is really, really, fucking brilliant. Really, really, great,” upon his band’s receipt of the award for best original song.

Various broadcasters — including Fox, which aired the Richie and Cher comments — legally challenged the imposition of fines for fleeting expletives, claiming the FCC changed its policy on the issue without adequate notice.

In its first ruling on this case, the Supreme Court in 2009 rejected the networks’ claim that technological advances have eliminated the need for a lower standard of First Amendment protection for broadcast speech. The high Court instead upheld the policy on administrative grounds.

The recent decision, which likewise avoided consideration of the broadcast industry’s standard of review, was an appeal from a 2010 ruling by the U.S. Court of Appeals in New York (2nd Cir.). That court found the policy unconstitutionally vague on First Amendment grounds. It did not specifically address the standard of review issue but noted that “the past 30 years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus.”

On appeal, broadcasters argued that the vagueness of the FCC’s current indecency policy, along with its lack of discernible standards and resultant selective and arbitrary application, force them to self-censor — a difficulty that was not resolved by the Court’s reliance on due process, rather than First Amendment, vagueness considerations.

“Vagueness in this context simply means that Fox and ABC didn’t have adequate notice of what the standard was in order to be able to conform their practices to the law. The Court did not say for sure that there is anything wrong with the FCC’s indecency standard. It was just not clear enough to be applied to the actions of the broadcasters,” Wermiel said.

“It’s a significant difference because vagueness on a First Amendment decision is a substantive assessment of the legitimacy of a policy on the constitutional grounds. An indecency standard that is too vague [under the First Amendment] means the standard is not valid and cannot be valid.”

And the Court’s failure to strike down the policy has far-reaching implications for broadcasters of which most people are unaware, said Washington, D.C., media attorney Kathleen Kirby, who submitted a friend-of-the-court brief on behalf of the Radio-Television Digital News Association.

For example, the FCC will not grant a broadcast license renewal, nor may a station be bought or sold, when an indecency complaint against the broadcaster is pending. Although the agency adopted in 2005 a policy that allows license renewals despite pending indecency complaints in certain circumstances, such unresolved complaints nonetheless negatively affect the value of the license and can inhibit the owner’s refinancing and recapitalization, Kirby said.

And since indecency enforcement has been on hold pending final resolution of the legal challenges to the policy, more than a million complaints “have been just sitting there for years,” directly affecting the financial well-being of those broadcasters, she added.

The implications

Hours after the Supreme Court announced the Fox ruling, all five FCC commissioners issued statements, most of which acknowledged the narrowness of the decision and expressed an intent, in carrying out the agency’s duty to protect young viewers and listeners, to adhere to the constitutional principles the Court enunciated.

“Citizens depend on laws that protect their families, and look to both industry and government to ensure that no child is unduly influenced by harmful material before they reach the age of understanding. However, we must be mindful of the rights guaranteed under the First Amendment,” according to Commissioner Mignon L. Clyburn’s statement.

Commissioners Ajit Pai and Robert M. McDowell said the agency must now work to expeditiously process and resolve the complaints that have amassed since the litigation began — a backlog of nearly 1.5 million indecency complaints, some of which date back to 2003, involving nearly 10,000 television broadcasts, and more than 300 pending license renewal applications, according to McDowell’s statement.

“Today’s narrow decision by the U.S. Supreme Court; highlights the need for the Commission to make its policy clear. I look forward to working with my colleagues to provide the clarity that both parents and broadcasters deserve,” Pai said.

But what action, if any, the FCC eventually takes is ultimately anybody’s guess, both Kirby and Wermiel said. Kirby speculated that Chairman Julius Genachowski — for whom broadcast indecency is “certainly not a front-burner issue’’ — is unlikely to enforce regulations as aggressively as the agency has done in the past. And any efforts to do so are not likely to occur before the presidential election this fall, she added.

“It will be interesting to see what the FCC will do,” Kirby said. Regardless of how it opts to address the pending complaints, “it is incumbent on the FCC to come up with some new policy statement with examples” of the types of speech the agency would and would not deem indecent, “because otherwise you’re just on a never-ending, merry-go-round where you have all these fine lines of what is and what is not acceptable.”

And even in cases where there is some guidance, sufficient certainty is still lacking, she said. Consider Chief Justice John Roberts’ opinion concurring with the Court’s denial of the FCC’s request to consider the lower-court decision that relieved CBS of a $550,000 fine for the Super Bowl halftime show, which, like the broadcasts at issue in Fox, aired before the policy change on fleeting images of nudity and utterances of expletives.

Although he noted that “any future ‘wardrobe malfunctions’ will not be protected on the ground” that a sanction constituted an unexplained departure from the FCC’s prior indecency policy, broadcasters and others have no idea just what a “wardrobe malfunction” is, Kirby said.

“Is whipped cream on a nipple covering it up or not?” she asked hypothetically. “There really aren’t any good guidelines.”

Wermiel said the issue now becomes a question of policy with many options the FCC could consider. Agency officials may now assess whether the current policy will survive First Amendment challenges or whether it needs to be modified, he said. Or they could decide to revert to the agency’s post-Pacifica policy of not imposing indecency fines for the broadcast of fleeting expletives, he added.

But whether the indecency policy should apply to the broadcast of a single, fleeting incident of nudity or expletive like those at issue in Fox — as opposed to the “in-your-face” broadcast at issue in Pacifica — is a question that divides the Court, Wermiel said. In fact, he speculated that it dodged the First Amendment analysis and decided the case on the significantly narrower, due process grounds as a compromise for a Court that may have been deadlocked 4-4 on the free speech issues.

Justice Ruth Bader Ginsburg’s one-paragraph concurring opinion highlights this tension. She said she would have reached the First Amendment issues and overruled Pacifica, which “was wrong when it issued” and in need of reconsideration, particularly in light of “time, technological advances, and the Commission’s untenable rulings in the cases now before the Court.”

But absent a ruling on that constitutional issue, “none of the First Amendment issues are solved,” Wermiel said. “There’s still the question of why the expletives in ‘Saving Private Ryan,’ [the Academy Award-winning World War II film the 2004 broadcast of which the FCC refused to sanction] are acceptable because they are fleeting and historical whereas the nudity in ‘NYPD Blue’ is indecent because it is gratuitous and unnecessary.”

With so much uncertainty and such a significant backlog, “I assume some of those [pending complaints] are ripe cases that could come back up to the Supreme Court,” Wermiel added, echoing Kirby’s similar prediction.

“The [indecency] policy is so vague and subject to the whim of whomever the commissioners are,” she said. “This is not the end of the litigation.”