The Supreme Court on Thursday let two television networks off the hook for broadcasting “fleeting expletives” years ago, but it avoided making any big decision about indecency and the First Amendment.
In a long-awaited but narrow ruling, the court unanimously agreed that the Federal Communications Commission had failed to give Fox and ABC sufficient warning before it disciplined them for briefly airing racy content. The justices, though, stopped short of tackling more far-reaching free-speech questions, leaving to another day the First Amendment implications of the FCC’s indecency policy.
“It is unnecessary for the court to address the constitutionality of the current indecency policy,” Justice Anthony Kennedy wrote, adding that “the court adheres to its normal practice of declining to decide cases not before it.”
All eight justices who took part in the case agreed that Fox and ABC shouldn’t face punishment from the FCC, though Justice Ruth Bader Ginsburg added that the court should take technological advancements into account and overturn a 1978 ruling governing broadcast indecency.
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“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,” Kennedy noted.
The set of facts in the complicated cases decided Thursday flip the dial back to a television show that’s been canceled and some celebrities who’ve since lost their sizzle. The 18-page majority decision also delicately tiptoed around the specific words in question.
During the 2002 Billboard Music Awards, the singer Cher said, "People have been telling me I’m on the way out every year, right? So (F-word) `em.” The next year, at the same music awards show, Nicole Richie declared, “Have you ever tried to get cow (S-word) out of a Prada purse? It’s not so (F-word gerund) simple.”
The FCC found the programs indecent, but it didn’t impose a fine on the Fox television channel.
The federal regulators also characterized as indecent a 2003 “NYPD Blue” episode in which a woman’s nude buttocks were flashed on-screen for a total of about seven seconds. The FCC imposed fines of $27,500 each on ABC-owned stations and affiliates.
The FCC defines “indecent” as material that depicts or describes “sexual or excretory organs or activities” and is also “patently offensive” as measured by contemporary community standards.
In 2010, the New York-based 2nd U.S. Circuit Court of Appeals struck down the FCC’s actions on the grounds that the commission’s enforcement policy on indecency was too vague to provide meaningful guidance for broadcasters.
For instance, the FCC found that isolated use of the word “bull (S-word)” on “NYPD Blue” was indecent but that the use of the words “dick” and dickhead” was not. Swear words have been permitted on television airings of the war movie “Saving Private Ryan,” but not on a documentary about blues musicians.
Although the Obama administration inherited the enforcement actions from the Bush administration, Obama’ solicitor general, Donald Verrilli Jr., fully adopted his predecessor’s hard-line position, declaring in one brief that “millions of children in the audience” were subjected to the swear words uttered on the Fox shows.
“The regulatory history, however, makes it apparent that the commission policy in place at the time of the broadcast gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent,” Kennedy wrote.
The court’s decision leaves standing for now a landmark, and later criticized, 1978 case that centered on the late comedian George Carlin’s use of the “seven filthy words.” Some advocates, citing the vast expansion of information sources since then, had urged the court to explicitly overrule the earlier decision, which had been based on the notion of broadcasting being a “uniquely pervasive” medium.
Justice Sonia Sotomayor didn’t participate in the case, as she formerly served on the appellate court that handled the dispute.