Supreme Court Issues Narrow Ruling in Vacating FCC Fines

The narrow Supreme Court ruling marks the second, and probably not the last, time the court has scrutinized the commission's broadcast indecency regulations. After finding in 2009 that the regulations were not arbitrary or capricious, the Supreme Court sent the case back to lower courts to determine the regulations' constitutionality under the First Amendment.

The Second Circuit found the rules unconstitutional, holding that current policy is “unconstitutionally vague” and creates a “chilling effect that goes far beyond the fleeting expletives at issue here.” Fox Television Stations Inc. v. Federal Communications Commission, 613 F.3d 317 (2d Cir. 2010). The FCC brought the case back to the Supreme Court this term, where the justices heard arguments more than five months ago.

On June 21, the justices again sidestepped the First Amendment issue, determining instead that the networks were not given adequate notice that fleeting use of expletives and brief nudity on the air would amount to a violation. Because the decision was based on Fifth Amendment due process considerations, Justice Anthony Kennedy wrote, the court “need not address the First Amendment implications” of the policy. The court also declined to use the case to re-examine the court's long-standing rationale for giving broadcasters less First Amendment protection than newspapers and other media.

Kennedy said the FCC did not adequately explain that under the current policy “a fleeting expletive or a brief shot of nudity could be actionably indecent.” He wrote that the High Court's 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.”

“Although [the] decision is a narrow one, the indecency regime is now on life support,” said American Civil Liberties Union legal director Steven Shapiro.

Media lawyer Andrew Schwartzman applauded the court for faulting the FCC for its lack of clarity, but added that it is “unfortunate that the justices ducked the core First Amendment issues. The resulting uncertainty will continue to chill artistic expression.”

But supporters of the indecency rules were also pleased, because the court had not rejected outright a role for the FCC in regulating indecency.

“Once again the Supreme Court has ruled against the networks in their years-long campaign to obliterate broadcast decency standards,” said Tim Winter of the Parents Television Council.

FCC chairman Julius Genachowski said in a statement: “We are reviewing [the] decision, which appears to be narrowly limited to procedural issues related to actions taken a number of years ago. Consistent with vital First Amendment principles, the FCC will carry out Congress's directive to protect young TV viewers.”

For his part, attorney Carter Phillips, Sidley Austin's co-chairman and veteran advocate who argued for the networks in the case, counts the 8-0 decision as a solid win for broadcasters, because the justices told the FCC it had “violated the Fifth Amendment, and maybe the First.” (Supreme Court Justice Sonia Sotomayor, who was a judge on the Second Circuit when the case was before it, had recused herself.) Phillips added, “There is no way to read that as a win for the FCC. The most you can do is say it is not Little Big Horn for them.”

The Supreme Court unanimously threw out fines and sanctions against broadcasters who violated the Federal Communications Commission (FCC) policy regulating curse words and nudity on broadcast television. But the justices declined to follow the U.S. Court of Appeals for the Second Circuit and issue a broad ruling on the constitutionality of the FCC indecency policy. Instead, the court concluded only that broadcasters could not have known in advance that fleeting obscenities uttered during awards programs and a brief display of nudity on an episode of ABC's NYPD Blue could give rise to sanctions. Federal Communications Commission v. Fox Television Stations Inc., 10-1293.

ABC and 45 affiliates were hit with proposed fines totaling nearly $1.24 million.

Supreme Court and Indecency

The narrow Supreme Court ruling marks the second, and probably not the last, time the court has scrutinized the commission's broadcast indecency regulations. After finding in 2009 that the regulations were not arbitrary or capricious, the Supreme Court sent the case back to lower courts to determine the regulations' constitutionality under the First Amendment.

The Second Circuit found the rules unconstitutional, holding that current policy is “unconstitutionally vague” and creates a “chilling effect that goes far beyond the fleeting expletives at issue here.” Fox Television Stations Inc. v. Federal Communications Commission , 613 F.3d 317 (2d Cir. 2010). The FCC brought the case back to the Supreme Court this term, where the justices heard arguments more than five months ago.

On June 21, the justices again sidestepped the First Amendment issue, determining instead that the networks were not given adequate notice that fleeting use of expletives and brief nudity on the air would amount to a violation. Because the decision was based on Fifth Amendment due process considerations, Justice Anthony Kennedy wrote, the court “need not address the First Amendment implications” of the policy. The court also declined to use the case to re-examine the court's long-standing rationale for giving broadcasters less First Amendment protection than newspapers and other media.

Kennedy said the FCC did not adequately explain that under the current policy “a fleeting expletive or a brief shot of nudity could be actionably indecent.” He wrote that the High Court's 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.”

“Although [the] decision is a narrow one, the indecency regime is now on life support,” said American Civil Liberties Union legal director Steven Shapiro.

Media lawyer Andrew Schwartzman applauded the court for faulting the FCC for its lack of clarity, but added that it is “unfortunate that the justices ducked the core First Amendment issues. The resulting uncertainty will continue to chill artistic expression.”

But supporters of the indecency rules were also pleased, because the court had not rejected outright a role for the FCC in regulating indecency.

“Once again the Supreme Court has ruled against the networks in their years-long campaign to obliterate broadcast decency standards,” said Tim Winter of the Parents Television Council.

FCC chairman Julius Genachowski said in a statement: “We are reviewing [the] decision, which appears to be narrowly limited to procedural issues related to actions taken a number of years ago. Consistent with vital First Amendment principles, the FCC will carry out Congress's directive to protect young TV viewers.”

For his part, attorney Carter Phillips, Sidley Austin's co-chairman and veteran advocate who argued for the networks in the case, counts the 8-0 decision as a solid win for broadcasters, because the justices told the FCC it had “violated the Fifth Amendment, and maybe the First.” (Supreme Court Justice Sonia Sotomayor, who was a judge on the Second Circuit when the case was before it, had recused herself.) Phillips added, “There is no way to read that as a win for the FCC. The most you can do is say it is not Little Big Horn for them.”