WASHINGTON –– The Supreme Court, in a unanimous ruling, said the Federal Communications Commission did not give sufficient notice that certain words or depictions on broadcast television could be considered indecent and thus subject to fines or other sanctions.
The June 21 ruling removes the threat of penalties against Fox and ABC — Fox for language used on awards shows that aired live, and ABC for showing female rear nudity and a side view of a breast on the long-since-canceled police drama “NYPD Blue.”
But in the 8-0 decision, the high court did not rule on the constitutionality of the FCC’s policy banning broadcast indecency. Justice Sonia Sotomayor did not participate in the case; she had been a member of a federal district court that heard one aspect of the indecency suit in the 2000s.
“Any time you have a potentially hot-button issue that the court decides unanimously, you know the court is doing something very narrow,” said Fordham University Law School professor Abner Greene, a First Amendment expert. Even so, he added, the case is “a good teaching example that justices from different parts of the (ideological) spectrum can get together and agree on something.”
Greene told Catholic News Service in a June 21 telephone interview that the indecency issue is “a very complicated law that the justices keep not wanting to address.”
As for the future, “we need to wait to see if the FCC is going to continue imposing its policy or not,” Greene said, adding that followers will have to note the “pattern of its application. Is it fairly clear or is it going to be scattershot?”
Greene added that the policy, were it to pass constitutional muster, would not now be seen as being too vague for time reasons if an alleged violation were to take place on the airwaves.
“The (FCC) failed to give Fox or ABC fair notice prior to the broadcast in question that fleeting expletives and momentary nudity could be found actionably indecent,” the justices said. “Therefore, the (FCC’s) standards as applied to these broadcasts were vague, and the (FCC) orders must be set aside.”
The justices dealt with only these two cases. Neither the expletive uttered by singer Bono during the 2003 Golden Globe awards ceremonies broadcast live on NBC, nor the Janet Jackson breast exposure incident during the 2004 Super Bowl halftime show on CBS were part of the decision.
The FCC first won at the Supreme Court in 1978 when it upheld that a radio station’s broadcast of comedian George Carlin’s “seven dirty words” routine was indecent. In the mid-1980s, the FCC decided that its enforcement of indecency was too narrow if based solely on that standard. It started asserting that material focusing on sexual or excretory activities or functions aired between 6 a.m. and 10 p.m. could be liable for action.
Broadcast networks and stations have fought for nearly a decade against the FCC’s latest round of indecency declarations and fines, contending that there was no way to know what the FCC would consider indecent and that such sanctions by the FCC could lead to the federal government determining broadcast content.
Justice Ruth Bader Ginsburg, with Justice Clarence Thomas supporting, issued a brief concurring opinion supporting her fellow justices, but on different grounds.
“In my view, the court’s decision in FCC v. Pacifica (the ‘seven dirty words’ case) was wrong when it was issued,” Ginsburg said. “Time, technological advances, and the (Federal Communications) Commission’s untenable rulings in the cases now before the court show why Pacifica bears reconsideration.”