High Court Rules for Broadcasters on TV 'Indecency'
Janet Jackson experiences a "wardrobe malfunction" while performing with Justin Timberlake during the 2004 Super Bowl halftime show. (KTLA-TV)
The justices said the broadcasters were not given "fair notice" the lapses would be treated as major violations of the federal broadcast rules against indecency.
The justices avoided a broad ruling on the 1st Amendment and whether traditional broadcasters now deserve the same free-speech rights as cable TV and other media.
They may have been closely divided on that fundamental question and opted to resolve the pending cases without making a major change in the law. Justice Sonia Sotomayor sat out the case because she had considered the same matter when on the U.S. Court of Appeals in New York. Her absence created the prospect of a 4-4 split.
Thursday's decision in Federal Communications Commission vs. Fox Television leaves uncertain the status of the current rules on indecency.
Since the 1930s, it has been illegal for radio and television broadcasters who use the public airwaves to transmit "any obscene (or) indecent" words or images. In 1978, the court agreed with the FCC that comedian George Carlin's "seven dirty words" monologue was indecent for broadcast at midday on the radio.
About a decade ago, the FCC decided to take a stronger stand against occasional four-letter words and displays of nudity on prime-time broadcasts. In 2004, the commission decided that Fox, ABC and NBC had violated this new policy. Fox and NBC had broadcast award shows in which celebrities, including Cher and Bono, had used obscenities. ABC was held to have violated the policy by airing a seven-second scene showing partial nudity on an episode of "NYPD Blue."
The broadcasters went to court in New York, arguing that the fines were unfair and unconstitutional. They have a won a series of rulings there, but no final victory.
Three years ago, the high court ruled that the FCC had the authority to adopt a new and stricter policy on indecency.
When the case went back to New York, the federal appeals court ruled again for the broadcasters and said the FCC's policy was vague and unconstitutional.
The case came back to the high court in January, and the justices sounded closely split on whether to uphold the strict anti-indecency policy. Chief Justice John G. Roberts Jr., who has two young children, said parents appreciate having TV channels that are safe and do not air objectionable words and scenes.
Others stressed that the media world has been transformed by cable and the Internet, and that there is less justification now for government oversight of the broadcast industry.
In the end, however, the court ruled only that the fines levied on Fox, ABC and NBC were unfair because their objectionable broadcasts came before the FCC had adopted its strict policy against "fleeting" expletives.
"A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required," said Justice Anthony M. Kennedy for a unanimous court. "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."
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