This morning, the Supreme Court issued a unanimous decision in which it invalidated sanctions imposed by the FCC upon Fox and ABC for allegedly indecent broadcasts, but declined to determine whether the FCC’s indecency policies met Constitutional standards. The decision was limited to a ruling that Fox and ABC had been given inadequate notice of the FCC’s policy change to consider fleeting expletives or nudity indecent. The result is to prolong the uncertainty that broadcasters face in their programming, including coverage of live events.
The consolidated cases involved instances of single uses of the “f-word” and “s-word” and a seven-second view of nude buttocks. The Court faulted the FCC for applying a policy that now regards fleeting expletives and nudity as indecent to incidents that had been broadcast prior to its adoption. On that basis, the Court held that the networks had received insufficient notice of the policy change and could not be sanctioned for violating it. Rather, the Court considered it fair to judge these incidents under the prior 2001 policy then in effect, in which the FCC had routinely considered isolated or fleeting use of expletives and nudity to be a mitigating factor in analyzing the overall context of alleged indecent programming.
Three years ago, the Supreme Court considered these same cases and upheld the FCC’s change of policy as having been adequately justified. It had remanded the cases to the Second Circuit Court of Appeals, which then found the policy too vague to pass Constitutional muster and exposed broadcasters to massive penalties unless they suppressed protected speech.
In the new decision, the Supreme Court emphasized the need for both notice and precise guidance, especially for abrupt policy changes in sensitive First Amendment areas. It held that the FCC had failed to notify Fox or ABC (and, presumably, others in the industry) that a single expletive or brief shot of nudity henceforth would be actionable. The Court noted that even though the FCC had not fined Fox, and stated that it would not take the matter into consideration for license renewal or in any other context, the strongly disapproving terms in which it described Fox’s conduct constituted “reputational injury” with audiences and advertisers to which broadcasters necessarily are sensitive. It further questioned the FCC’s attempt to distinguish ABC’s nude scene from those in other programs which the FCC had permitted without sanction.
The opinion emphasized that it was decided on a narrow Due Process ground and does not address the constitutionality of the FCC’s current indecency policy, a rather surprising result after the Court had specifically asked the parties to brief the constitutional issues decided by the Second Circuit. The opinion concludes by “leav[ing] the FCC free to modify its current policy in light of its determination of the public interest” and “leav[ing] the courts free to review the current policy or any modified policy in light of its content and application.” That, in turn, would seem to give the FCC, at least for now, a green light to apply its “fleeting indecency” policy to broadcast programming and leaves licensees in the position of facing potentially severe sanctions for even the inadvertent broadcast of a single expletive. More immediately, it would appear to endorse fines against broadcasts that occurred after the new policy had been announced. Indeed, two Commissioners have already released statements urging the FCC to process its backlog of nearly 1.5 million pending indecency complaints.