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Supreme Court Says FCC Indecency Policy, As Applied, Was Too Vague

The Supreme Court Thursday vacated a Second Circuit decision that the FCC's indecency enforcement regime as applied to swearing and nudity on Fox and ABC TV stations was unconstitutional, but concluded that the FCC did not give broadcasters sufficient notice.

It is a victory for Fox and ABC, who were the subjects of the complaints at issue -- and in ABC's case a fine -- but not for First Amendment attorneys hoping for the court to rule on the constitutionality of the overarching policy. It also leaves the FCC's indecency enforcement policy in limbo, and likely means the FCC will not be handing out fines or findings anytime soon.

"We're pleased with the decision of the Supreme Court regarding the episode of NYPD Blue, and we are reviewing the entire ruling carefully,"  said ABC in a statement.

The court did not reach the constitutionality of the FCC indecency enforcement policy, but instead said that "because 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, the Commission's standards as applied to these broadcasts were vague."

The decision was unanimous -- Associate Justice Sonia Sotomayor did not participate -- and the court went out of its way to point out how narrow the ruling was.

"Because the Court resolves these cases on fair notice grounds under the Due Process Clause," said Justice Anthony Kennedy, writing for the majority and according to the syllabus, "it need not address the First Amendment implications of the Commission's indecency policy or reconsider Pacifica at this time. Second, because the Court rules that Fox and ABC lacked notice at the time of their broadcasts that their material could be found actionably indecent under then-existing policies, the Court need not address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and subsequent adjudications. Third, 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."

"Courts are as good as the rest of us at dodging hard decisions and making easier ones," said veteran First Amendment attorney John Crigler of Garvey Schubert Barer. "That's what the Court has done in Fox. It ducked the hard questions of whether the FCC's indecency policy violated the First Amendment and decided the much easier question of whether Fox and ABC had sufficient notice that the FCC would apply its policy even to 'fleeting' words and images. Because the prior indecency policy required that material "dwell on" or repeated offensive material, the rulings against Fox and ABC deprived them of due process. The FCC will be given a chance to repair the fair notice defect and bolster its indecency policy against the First Amendment challenge that has been merely delayed by today's decision."

The court found that the first time the FCC gave notice that it was pursuing fleeting indecency was in the 2004 Golden Globes order and, since the Fox and ABC broadcasts preceded that, there was insufficient notice. Since the court did not rule on the constitutionality of the fleeting enforcement  policy or underlying indecency policy, the FCC would appear to be free to act on any pending complaints--the FCC has more than a million in the hopper--for broadcasts after the Golden Globes notice was given. Republican FCC commissioners and the Parents Television Council suggested Thursday  that should be the FCC's next move.

The decision, in Fox v. FCC, was in response to the government's challenge to a Second Circuit court ruling that the FCC's indecency findings against swearing on a Fox awards show and nudity in ABC's NYPD Blue, and the FCC's indecency enforcement policy in general, were unconstitutionally vague. The argument was before eight Justices, with Justice Sotomayor recusing herself as a former member of the Second Circuit appeals court whose ruling is at issue (she was not part of the panel that rendered the decision).

The decision Thursday (June 21) comes a year after the Supreme Court agreed to accept the constitutional challenge to the rules last June.

In oral argument last January, the Justices seemed uncomfortable with the idea of removing the indecency regs entirely. Court watchers had been looking for an "as applied" decision from the Supremes, one which left the FCC with the power to enforce indecency rules, but that found that the way they had applied that power was too vague. That appears to be what they got.

It was the second round for the FCC Fox decision at the High Court, which had initially overturned the Second Circuit decision that the FCC's ruling was arbitrary and capricious on procedural grounds. The Supremes remanded the FCC decision back to the Second Circuit, which proceeded to throw out the Fox indecency finding on constitutional, rather than procedural, grounds, saying it was vacating not only the specific order, but "the indecency policy underlying it."

In Thursday's ruling, the court essentially said that alhough the FCC's policy was not arbtrary and capricious, it had applied it in these cases without giving sufficient notice to Fox and ABC.

By contrast, it was the court's first look at the bare behind of actress Charlotte Ross in a 2003 episode of NYPD Blue, which drew an FCC fine for ABC stations.

The Fox case involved 2002 and 2003 Fox broadcasts of the Golden Globes involving swearing by Cher and Nicole Richie, respectively. The High Court had signaled back when it upheld the FCC's decision on other grounds that it expected to get the case back. The court generally takes cases where a government rule has been declared unconstitutional, as was the case when last July, the Second Circuit Court of Appeals threw out the FCC's indecency enforcement policy as unconstitutionally vague and chilling.

It then applied that decision in throwing out the FCC's $1.4 million fine against 52 ABC affiliates for the 2003 NYPD Blue broadcast.

Back in April, the FCC asked the Supreme Court to review the Second Circuit decision throwing out the FCC's $550,000 fine against CBS for the Janet Jackson Super Bowl halftime show reveal,but asked the court to hold the petition in abeyance until it had ruled on the Fox challenge.

Crigler says the FCC could ask that the Third Circuit decision not apply until it can revising the "fleeting" indecency notice issue. "Janet Jackson was not decided on First Amendment grounds, but also on grounds of notice, namely whether elimination of the "fleeting usage" policy applied to words as well as images," he says. "Since the FCC is probably going to invite comment on the whole 'fleeting' issue, it could ask that the 3rd Circuit decision be held in abeyance or remanded until the FCC can address the issue."

FCC Chairman Julius Genachowski was keeping his cards close to the vest. "We are reviewing today's decision, which appears to be narrowly limited to procedural issues related to actions taken a number of years ago," he said. "Consistent with vital First Amendment principles, the FCC will carry out Congress's directive to protect young TV viewers."

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.