Supreme Court Rules FCC's Indecency Policy 'Vague,' But Allows Agency to Further Police Nudity and Language on TV
The U.S. Supreme Court handed TV networks a win on 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 the last five years, the justices have decided not to shake up more than 30 years 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 will likely 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 over 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 the high-profile "wardrobe malfunction" by Janet Jackson at 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 U.S. 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 has declined to make a much bigger decision about what exactly the FCC should do. The justices defer 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, Justice Kennedy makes it on an interpretation of the Due Process Clause of the Constitution. In doing so, he notes that the Supreme Court "need not address the First Amendment implications of the Commission’s indecency policy or re-consider Pacifica at this time."
The decision applies backward to the FCC's past determinations on indecency, but not pertaining to the "constitutionality of the current indecency policy."
"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," writes Kennedy.
In an analysis that follows, Kennedy goes onto say that 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."