Supreme Court ruling avoids constitutionality of FCC's indecency policy

In a narrowly decided opinion, the U.S. Supreme Court unanimously threw out millions of dollars in fines the Federal Communications Commission (FCC) imposed on broadcasters but did not address the First Amendment implications of the agency's indecency policy.

The court found that the FCC violated due process procedures by not providing adequate notice of increased efforts to enforce its indecency rules before imposing fines. Because the matter was resolved on these grounds, there was “no need to address the constitutionality” of the vaguely worded policy’s ban on isolated utterances of expletives and images of nudity, Justice Anthony Kennedy said today in announcing the Court's ruling.

The decision voids the fines imposed for certain past instances of so-called fleeting expletives and momentary images of nudity, such as the broadcast of reality star Nicole Richie's utterance of two expletives during a live airing of the Billboard Music Awards in 2003. But the Court did not decide whether the FCC’s broadcast indecency policy, under which the fines were imposed, chills free speech.

“[B]ecause 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,” Kennedy wrote on behalf of the 8-0 Court. Justice Sonia Sotomayor did not participate in the ruling because she was a member of the federal appellate court, a panel of which heard an earlier version of the case.

Stephen Wermiel, a constitutional law professor at American University in Washington, D.C., said the ruling "is really deferring the heart of the question about what the FCC can regulate."

In a friend-of-the-court brief, The Reporters Committee for Freedom of the Press argued that the indecency policy's news exemption, which protects the broadcast of indecent utterances during “bona fide news interviews,” is applied selectively and does not make the policy constitutionally safe.

“The commission exercises its authority to regulate indecency in news broadcasts with the same level of arbitrariness it applies to all other kinds of programming – a restraint on the publications of matters at the core of the First Amendment’s protections that this country cannot tolerate,” the Reporters Committee wrote.

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 utterances. Although the wording of its policy did not change, the agency's enforcement did, following the live broadcast of the Golden Globe Awards in 2003 during which U2 frontman Bono cursed upon receiving an award.

Various broadcasters, including Fox, which aired the Richie 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 rejected the networks' claim that technological advances eliminated the need for a lower standard of First Amendment protection for broadcast speech. The high Court upheld the policy on administrative grounds.

Today’s decision, which avoided reconsideration of the broadcast industry’s standard of review, was on appeal from the U.S. Court of Appeals in New York City (2nd Cir.). In 2010, 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.”

Justice Ruth Bader Ginsburg's concurring opinion in today's ruling agreed with the Second Circuit's observations about the current media landscape, citing, “time, technological advances and the Commission’s untenable rulings” as reasons to reassess the scope of indecency regulations.

Broadcasters argued that the FCC’s current indecency policy is unclear and forces them to self-censor — a difficulty that is not resolved by today's ruling. But they said they appreciated the Court's dismissal of the fines at issue.

"We're pleased with the decision of the Supreme Court,” said ABC, which was fined by the FCC for a brief display of nudity on a 2003 episode of “NYPD Blue,” in a prepared statement. “We are reviewing the entire ruling carefully.”

The other contested fines involved 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 Richie’s unscripted remark while presenting an award: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”

Ajit Pai, FCC commissioner, said in a press release that today’s ruling “does not call into question the Commission’s overall indecency enforcement authority or the constitutionality of the Commission’s current indecency policy. Rather, it highlights the need for the Commission to make its policy clear.”

In declining to rule on the First Amendment issues raised by the broadcasters, the Supreme Court said that it “leaves the Commission free to modify its current indecency policy . . . [and] leaves the courts free to review the current policy or any modified policy in light of its content and application.”