Justices decline to address bid to overturn FCC indecency rules


Broadcast television isn’t going to look like cable television any time soon.

In a much-anticipated decision, the Supreme Court declined Thursday to address whether the Federal Communications Commission’s indecency rules — and how they are enforced — are unconstitutional. That determination vacated a lower court ruling that the FCC’s enforcement of its indecency rules was unconstitutional.

The ruling, which arose from a legal battle over the indecency rules between the FCC, News Corp.’s Fox and Walt Disney Co.’s ABC, means that broadcast TV will continue to have to steer clear of the swear words and nudity that have become prevalent on much of cable television, especially during hours when children might be in the viewing audience.

PHOTOS: Indecency through the years


For years, broadcasters have argued that the FCC’s enforcement of its indecency rules is chilling to free speech and handicaps the industry when it comes to competing with cable, which does not face any regulatory oversight regarding its content.

With broadcast television losing viewers to cable, in part because the latter can be more daring when it comes to content, there was the hope that the Supreme Court would take the FCC’s handcuffs off the broadcasters once and for all.

“The decision is extremely disappointing because the court failed to decide the 1st Amendment question presented in the case,” said T. Barton Carter, a law professor at Boston University’s College of Communication.

The court’s litmus test on indecency was its 1978 landmark Pacifica ruling. Often referred to as the “seven dirty words” decision, it tested Pacifica Radio’s right to broadcast the work of comedian George Carlin. The ruling gave the FCC the power to police the airwaves.

At the time of that ruling, the court said “broadcast media have established a uniquely pervasive presence in the lives of all Americans.” That, Carter said, has changed “in a world where broadcasting is no longer the dominant medium.”

Agreeing with Carter was Justice Ruth Bader Ginsburg, who said in statement that the Pacifica decision “was wrong when it was issued” and now, given the changes in the media landscape, “bears reconsideration.”


Broadcasters didn’t come away completely empty-handed. While the court punted on making a broad ruling on the indecency regulations, it did throw out — on something of a technicality — an FCC fine against ABC for brief nudity in a 2003 episode of the drama “NYPD Blue” and a finding that Fox was guilty of indecent programming over cursing by Nicole Richie and Cher in live awards show telecasts in 2002 and 2003.

“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.” Justice Anthony Kennedy wrote. He added that “because the court resolves these cases on fair notice grounds under the due process clause, it need not address the 1st Amendment implications of the commission’s indecency policy.”

The high court may have been closely divided on that fundamental question and thus 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 she was on the U.S. Court of Appeals in New York. Her absence created the prospect of a 4-4 split on the bigger issue of whether the indecency rules are still justifiable in the current media environment.

Fox and ABC decided to see the glass as half-full. Fox said it was pleased with the finding that the FCC did not comply with due process requirements. With regard to the broader 1st Amendment implications that the court did not address, Fox said, “Those issues remain for future litigation depending on what regulatory approach the FCC takes to these broadcasts in the future.”

ABC said it too was happy with the portion of the ruling regarding “NYPD Blue,” but declined to comment further.

Although cable can certainly push the envelope further than broadcasters, ABC, CBS, NBC and Fox have all increased the level of crude language and sexual innuendo over the years, to the chagrin of some media watchdogs who think broadcasters need to be reined in. Some cheered Thursday’s decision.


“Once again the Supreme Court has ruled against the networks in their years-long campaign to obliterate broadcast decency standards,” said Tim Winter, chairman of the Parents Television Council advocacy group. “Pacifica is still good law.”

The ruling is going to create a lot of work for the FCC. There is a backlog of more than 1.4 million indecency complaints that have been in limbo at the regulatory agency during the court case that will now have to be reviewed for potential violations and fines.

Many of the complaints awaiting action at the FCC have to do with the Fox animated comedy “Family Guy.” A 2009 episode of the show, which included a plot about horse semen, generated more than 200,000 letters. Typically, when a show has received that many complaints, it is a sign that an interest group is encouraging people to send letters to the FCC. The Parents Television Council has made “Family Guy” one of its targets over the years.

Whether the FCC will begin a new crackdown on broadcasters remains to be seen. The aggressive approach that began 10 years ago was under a Republican administration and followed Janet Jackson’s “wardrobe malfunction” during a Super Bowl halftime show, in which the year’s most massive TV audience got a fleeting glimpse of the singer’s bare breast. Although the FCC has asked the Supreme Court to review a lower court’s ruling that tossed its indecency order against CBS for that broadcast, the current regime has not been as focused on indecency as its predecessor.