On June 21, 2012, the Supreme Court issued a ruling in the highly anticipated case Federal Communications Commission v. Fox Television Stations, No. 10-1293, (FCC v Fox). The Court, however, declined to address the big issue: Whether the government still has the authority to regulate indecency on broadcast television. But the Court did rule on narrow grounds in favor of two broadcasters that had faced potential sanctions for programs featuring cursing and nudity.
Our 24-hour news cycle, however, lit up like a Christmas tree in its collective rush to provide the “news” on this long-awaited decision. Amazingly, many got the story wrong, saying the Court overturned the FCC’s rules on indecency. The reality is that just as some leading “news” organizations appear to be confused about just what the Supreme Court ruled, broadcasters will likely be just as confused about what can be said and shown on broadcast TV.
Got It Wrong
For your edifice, here are some headlines of news organizations that got it wrong:
- Fox News: “High Court Strikes Down FCC Profanity Policy”
- Yahoo: “Supreme Court Knocks Down FCC Indecency Rules in Fox Case, Ducks First Amendment Question”
- Daily Beast: “FCC Indecency Policy Tossed Out”
One of the most surprising wrong reports came from Lawrence O'Donnell in last Thursday’s segment on his show "The Last Word." "Today, the U.S. Supreme Court officially and unanimously rewrote what we could say and do and show on television. Now, profanity is okay and nudity is okay, all thanks to Cher," he said on Thursday’s show. Then, in celebration, he aired the scene from "NYPD Blue" that the FCC called into question – a brief image of a woman's buttocks.
The Supreme Court did not actually rule on the constitutionality of the FCC's ban on curse words and nudity on broadcast. The reason that ABC and FOX were let off the hook was because the FCC had changed its policies shortly before the segments were broadcast, and the networks weren't given enough notification that they would be fined for these types of incidents.
The FCC is still free to enforce its ban on profanity and indecency.
FCC v Fox
The Supreme Court ruled in FCC v Fox that the broadcasters had not been given fair notice of a new Federal Communications Commission policy. It left open the question of whether changes in the media landscape have undermined the rationales for limiting their free speech rights in ways the First Amendment would not tolerate in other settings. Cable television and the Internet are not subject to government regulation of ostensibly indecent material.
FCC v Fox was making a return appearance at the court. In 2009, the justices also passed up an opportunity to examine the First Amendment issues raised by the case.
The case arose from the broadcast of fleeting expletives by celebrities on awards shows on Fox and partial nudity on the police drama “NYPD Blue” on ABC. Justice Anthony M. Kennedy, writing for seven justices, said the broadcasters must win, but only because the commission had changed the rules in the middle of the game.
“The commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent,” Justice Kennedy wrote.
“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,” Justice Kennedy wrote. “And it leaves the courts free to review the current policy or any modified policy in light of its content and application.”
Only Justice Ruth Bader Ginsburg, who voted with the majority but did not join its reasoning, was prepared to address the First Amendment issues raised by changes in the world of broadcasting and related media since 1978, when the Supreme Court decided the leading case in this area, Federal Communications Commission v. Pacifica.
That decision said the government could restrict George Carlin’s famous “seven dirty words” monologue, which had been broadcast on the radio in the afternoon. The court relied on what it called the uniquely pervasive nature of broadcast media and its unique accessibility to children.
Broadcasts in Question
Two of the challenged broadcasts involved cursing on the Billboard Music Awards. Cher, who reflected on her career in accepting an award in 2002, said “I’ve also had critics for the last 40 years saying I was on my way out every year.” Then she, in the words of Justice Antonin Scalia in the earlier decision in the case, “metaphorically suggested a sexual act as a means of expressing hostility to her critics.” Justice Kennedy transcribed the crucial word as the letter “F” followed by three asterisks.
The second bout of celebrity cursing came in an exchange between Paris Hilton and Nicole Richie in 2003 in which Richie discussed in vulgar terms the difficulties in cleaning cow manure off a Prada purse.
The commission also took issue with a 2003 episode of “NYPD Blue” that included images of, in Justice Kennedy’s words, “the nude buttocks of an adult female character for approximately seven seconds and for a moment the side of her breast.”
In 2004, after the three broadcasts and in connection with cursing by singer Bono of U2 at the Golden Globe Awards, the commission announced that broadcasts of even fleeting indecency were subject to punishment. It did not matter, the commission said, that some of the offensive words did not refer directly to sexual or excretory functions. Nor did it matter that the cursing was isolated and apparently impromptu.
The commission imposed no punishment on Fox, but fined ABC and its affiliates $1.24 million.
The Future for Broadcasters
The ruling left open some key questions about censorship and the First Amendment, particularly in a technological age radically transformed from the Court’s previous opinions on the subject. The seminal opinion in this arena, Pacifica Foundation, dated back to 1978, when three networks – ABC, CBS and NBC – and radio stations dominated mass media. The ruling empowered the FCC to govern the nation’s airwaves and make determinations as to what constituted indecency.
With the proliferation of cable television and the Internet (not to mention changes in morality), this finding appeared outdated, leading some to ask the Court to reconsider its standards about what constituted indecency. Unlike other recent instances, where the Court has embraced the opportunity to make profound changes to constitutional law, it refrained from doing so by basing its ruling on a narrow, uncontroversial legal principle.
“These arguments need not be addressed here,” the Court held. In doing so, the Court reiterated a long-held judicial principle “of deciding constitutional questions only in the context of the particular case before the Court.”
The court essentially handed the hot potato back to the FCC by punting on the free speech issues in the case. But what — if anything — the FCC does is still an open question.
Some observers say the FCC’s most logical move would be to retreat to its practice before 2001, when the commission generally declined to sanction fleeting and isolated uses of expletives, except in specific circumstances. The commission could also decide to try to clarify when and how the current policy will be applied. In the incidents that gave rise to the Supreme Court case, broadcasters questioned why an unedited version of Steven Spielberg’s “Saving Private Ryan” was OK for network TV but not the “NYPD Blue” episode in question.
For now, the FCC isn’t saying what it might do, other than review its current rule. Reacting to the ruling on Thursday, Chairman Julius Genachowski and the other two Democratic commission members cited a need to protect children from broadcast indecency.
For their part, broadcasters say TV content won’t change after the ruling, mostly because viewers assume that broadcast television won’t be laced with expletives.
But the fact that the court ducked altogether the First Amendment issues will lead only to future scuffles between the FCC and broadcasters over on-air indecency questions.
But certainly the Court did not “strike down,” “toss,” “overturn” or “invalidate” the FCC’s policy. Many news outfits got the ruling wrong. In this case, broadcasters couldn’t rely on the media for accurate information about the decision.
This article was originally published in the "Daily Journal."