The Supreme Court ruled yesterday on whether or not the Federal Communications Commission is constitutionally free to impose fines on broadcast television networks for instances of fleeting profanity or nudity.
The short answer from the nation’s highest court to the FCC? No. The long answer? Well, it’s quite a bit longer. But it’s worth wading through the court’s seemingly Byzantine logic to understand how this ruling might influence what shows up on public broadcast networks in the future.
The case in question, Federal Communications Commission v. Fox, has been bouncing back and forth between the Supreme Court and New York’s Second District Court of Appeals for years. At issue is whether the FCC has the right to impose fines for fleetingly indecent content. The instances of indecency in question here involved Cher and Nicole Ritchie using the f-word and s-word on the 2002 and 2003 Billboard Music Awards shows. A separate, but related case, involved ABC’s 2003 airing of an episode of NYPD Blue that included seven seconds of footage of a woman’s unclothed backside in a shower.
The FCC tightened its broadcast indecency rules in 2001 and began enforcing those rules more aggressively in 2004. Both cases involved the FCC retroactively censuring Fox and ABC for the profanity and nudity broadcast on their networks. Fox received a formal reprimand, while ABC and a number of its affiliate stations received a $1.24 million fine.
The Supreme Court ruled that the FCC imposed its penalties arbitrarily without giving the networks enough notice that the material they were broadcasting could be worthy of punitive action. “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,” wrote Justice Anthony M. Kennedy on behalf of the court, which decided the case with a unanimous 8-0 vote. (Justice Sonia Sotomayor recused herself because of previous involvement in the case while working for the Second District Court of Appeals.) “Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside,” he said.
While the ruling seems to be a clear victory for networks, the court sidestepped a larger issue that some had hoped it would address. Leading up to the case, there was speculation that the Supreme Court might go further. Some thought it might possibly declare the 1978 case that established the FCC’s authority to police public airwaves for indecency (FCC v. Pacifica) to be an unconstitutional limitation of the networks’ First Amendment speech. The justices sidestepped that issue, however, affirming the ongoing authority of the FCC while simultaneously hinting that it may be time to revisit whether or not a statute from 1978 is still relevant today.
The networks’ argument against the FCC’s indecency rules is that content on cable and satellite TV does not fall under the FCC’s jurisdiction. Further, because the vast majority of households subscribe to such services, the broadcast networks are held to a tighter content standard that effectively puts them at a competitive disadvantage. Responding to that assertion, Justice Ruth Bader Ginsburg wrote that it’s probably time for the 1978 FCC precedent to be revisited. “Time, technological advances and the Commission’s untenable rulings in cases now before the court show why [the case FCC v. Pacifica] bears reconsideration.”
Kennedy also dropped what could be construed as a hint regarding how the FCC should respond to the ruling when he wrote that the FCC should feel “free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements.” Translation No. 1: The court is unlikely to side with the FCC in future indecency disputes. Translation No. 2: If you can’t beat ’em, join ’em.
The Supreme Court has essentially said that the FCC’s enforcement of indecency standards is at times arbitrary, and that the FCC is trying to enforce standards that don’t apply to cable and satellite television. It seems likely, then, networks will be emboldened by this precedent, as well as the high court’s hint that the FCC’s public broadcasting indecency standards are unfair and outdated.
All that nasty stuff on cable? Don’t be surprised to see it turning up more frequently on broadcast TV in the near future.
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