Supreme Court Punts on Broadcast Indecency

Yesterday, the high court issued its long-awaited opinion in FCC v. Fox Broadcasting, 567 U.S. ____ (2012). In its unanimous opinion, the panel gave broadcasters a temporary victory by invalidating the present indecency standards as constitutionally vague based on lack of adequate notice, but failed to consider whether there is a rationale for instituting them in the first place. I have written about the effect that the latest interpretation of the rules, which were expanded to prohibit "fleeting expletives," can cause undue harm to over the air broadcasts of sports events where single instances of the f-word or other such language may be picked up and broadcast.

The litigation saga of the case covers two Supreme Court rulings and several appeals court rulings. In Fox I, 556 U.S. 502 (2009), the court only addressed administration law claims, concluding that the new rules -- which significantly changed enforcement of the standards from the "7 dirty words" and contextual applications of profane speech over the years to a one-word wonder, was not arbitrary and capricious, but reserved the First Amendment questions for another day. On remand, Second Circuit concluded that the standards were unconstitutional, 613 F. 3d 317 (2010) and this appeal ensured.

The court, in what could be called Fox II, focused on the more narrow question of the constitutionality of the promulgation of the regulations, but not the free speech implications of the fleeting expletive standard. Ideally, the question of the due process of the manner in which the policy was enacted could have been addressed in the earlier opinion because it is so dovetailed with the administrative law issues. But it was not, since the Second Circuit did not address those questions at that time when it ruled on the administrative law issues in 2007.

This time around, Justice Kennedy, writing for the court, focused on the void for vagueness and lack of notice issues. At the time of the violations in question -- which did not involve a sports broadcast, but rather a show of nudity on an episode of ABC's "NYPD Blue" and the use of one-time f-words by Cher and Nicole Ritchie on two separate Billboard Music Awards show broadcast by Fox -- no notice of the change of policy was made. While the restrictions on "obscene and indecent" broadcasts are based on statute -- 18 USC 1464 -- the interpretation of the scope of that statute has been the province of the FCC for six decades. The commission essentially backpedaled its way into the new rules, since in 2001 it was FCC policy that the single use of a profanity was not enough to show indecency, while in 2004, after these incidents, the commission changed course in a 2004 order.

The court stopped there, however, noting that the First Amendment questions need not be addressed at this time -- much to the consternation of Justice Ginsburg, who argued in concurrence that they should have been determined. That means that the Pacifica ruling upholding the FCC's right to regulate indecency stands and the commission has the power to issue new indecency rules and it is likely that yet another round of challenges will occur. Sports broadcasters should not get rid of their time-delay machinery just yet.