WASHINGTON-The Supreme Court, in its second major opinion released on Thursday that wasn't a healthcare opinion (see "Labor loses again"), dodged a decision on whether the Federal Communications Commission's laws regulating indecency on public broadcast television and radio are good or not. Instead, a unanimous court simply said the federal agency could not fine two networks in the case because it had not given the networks sufficient notice on the rules.
"Here the court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies," Justice Anthony Kennedy wrote for the unanimous court. "It is unnecessary for the court to address the constitutionality of the current indecency policy."
Upon the release of the decision, the Associated Press-and other news outlets-reported that the court had "struck down" the indecency law. But saying profane words and showing nudity on broadcast television or radio still isn't acceptable-the high court just said the FCC had to give "fair notice" to broadcasters about what counts as "indecent." The opinion was narrow, saying its scope was limited to the two cases and encouraging the FCC to review its regulations in light of the ruling.
The FCC dinged the broadcasters for showing "fleeting" expletives and nudity before it issued its official rule on such indecencies, so now that an official rule is in place, it may count as "fair notice" to the networks. But the court explicitly said it would not decide whether the current fleeting expletive rule was fair.
The Parents Television Council, which has supported the FCC's regulations on the grounds that they protect children from indecent content, celebrated the decision because the court did not dismantle the regulations. PTC also said that the FCC has by now fulfilled its obligation to give networks "fair notice" on what is indecent and can move forward to enforce fines against broadcasters.
The FCC prohibits indecency on federally owned airwaves between the hours of 6 a.m. and 10 p.m., when children are most likely to be watching. The cases addressed several incidents of "fleeting" indecency on the broadcast channels: The FCC dinged Fox for two awards ceremony speeches that included expletives and fined ABC affiliates for broadcasting an episode of NYPD Blue that showed several seconds of nudity. The networks argued in court that the FCC's indecency standards were arbitrary (see "Indecent exposure," Jan. 10). The justices in their opinion agreed that at the time, the FCC's standards were "vague," but declined to comment on the current indecency standards.
Justice Ruth Bader Ginsburg filed a concurring opinion saying she disagreed with the original Supreme Court case in 1978 that gave the FCC authority to police indecency: FCC v. Pacifica. Ginsburg said the court should reconsider the FCC's authority given "time" and "technological advances."
Patricia Ann Millett, who argues many cases before the high court, echoed Ginsburg on Tuesday, noting that the content the FCC can regulate for indecency is shrinking. Instead of a handful of broadcast channels, today there are hundreds of unregulated cable channels, and an infinite number of programs on the internet. Only 11 percent of U.S. households receive only broadcast channels, according to the consumer group Nielsen, and that number is declining.
"The question is, can the FCC still police this little island?" said Millett. The court seemed sympathetic to allowing the FCC to keep its little island in the arguments.
"There are 800 channels where they can go for that [indecent material]," Chief Justice John Roberts said at the time. "All we're asking for-all the government is asking for-is a few channels … where they are not going to hear the S-word, the F-word."
While the justices did not explicitly endorse the FCC's island of decency on Thursday, they didn't dismantle it-for now.