So, Now That The Supreme Court Has Ruled ... What's Up With Indecency?

[author: Gregg Skall]
This article originally appeared at AllAccess.com
Pretty much everyone in broadcasting knows that the Supreme Court has ruled in the Fox/CBS case. The court did not settle the constitutional issue and, while the cases were dismissed on alternative grounds, the indecency issue and its enforcement are now back in the hands of the FCC. Bear in mind that the Second Circuit Court of Appeals has twice concluded that the FCC's standard for indecency and its application was an unconstitutional violation of the First Amendment.
Fox Case History
For those interested in a brief background, the networks challenged the FCC policy change that now includes spontaneous utterances an indecency violation. The Second Circuit held that the Commission had not adequately justified its policy change but the Supreme Court held that FCC need not offer detailed justification for changing policy direction.
Back to the Second Circuit; where the FCC indecency policy was again held to violate the First Amendment; and then, back again to the Supreme Court. In June, the Supremes punted again, avoiding the First Amendment issue, the Court decided instead that the Commission policy change violated the fair notice requirement of the Fifth Amendment Due Process Clause by not giving ABC and Fox affiliates adequate advance notice that a broadcaster would be held liable for fleeting instances of unscripted cursing or nudity.
Bottom Line
Boiled down, the Fox case stands only for this: The FCC may change to a diametrically different policy approach without the need to demonstrate why the new policy is superior. However, a licensee cannot be sanctioned for its violation without the FCC first providing fair notice of the change. That's about it!!
In the words of Justice Kennedy, "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."
What IS an indecency violation?
So, if indecency is still an FCC violation, what how do we define indecency? The million-dollar question ($64,000 is so yesterday) remains what constitutes a violation? Answer: Because the Supreme Court dodged the First Amendment issue, we still don't know!
Here's a short explanation of what we do know. It's not always an easy test and this is one where a lawyer can be of real help.
The Commission's indecency test is a "contextual" one. Whether an expression or a word or a picture can be deemed indecent depends on the context in which it occurs. That means that the broadcaster must be a good predictor, probably clairvoyant, of the Commission's views on context. If not very good at that, it could wind up with a fine, a sanction or a problem at renewal time.
Examples:
Let's look at an example. While these are television examples, they are also instructive to radio broadcasters.
In 2005, the American Family Association, and others, complained that ABC affiliates broadcast indecent and profane material by broadcasting the film, "Saving Private Ryan." The Commission dismissed the complaints, stating that the "full context in which material appeared is critically important," and reviewed the three "principal factors" to be analyzed in making indecency determinations:
1. The explicitness or graphic nature of the description or depiction of sexual or excretory activities;
2. Whether the material dwells on or repeats at length descriptions of sexual or organs or activities;
3. Whether the material appears to pander or is used to titillate, or appears to have been presented for its shock value.
In the FCC's view, "[e]ach indecency case presents its own particular mix of these, and possibly, other [unknown] factors," but how they balance out will determine whether the broadcast is deemed patently offensive.
So, when the Commission weighed these factors against a complaint that an episode of the PBS documentary series, "Martin Scorsese Presents the Blues," the filmmaker's artistic decision that the words objected to were necessary to provide an unedited window into the world of the interviewed jazz greats with their own words as an educational experience for the viewer, it came to a different conclusion. Because the interviews contained repeated utterances of the "F-Word," the "S-Word," and their variants, the Commission held that broadcasts containing the expletives were patently offensive under contemporary community standards and thus indecent.
A New York Times account of Fox Case oral argument before the Supreme Court reported that even Supreme Court Justices were confused by FCC policy rulings:
"One cannot tell what's indecent and what isn't," Justice Ruth Bader Ginsburg said, referring to the agency as "the censor." . . . The commission has, for instance, said that swearing in "Saving Private Ryan," the Steven Spielberg war movie, was not indecent, while swearing by blues masters in a music documentary produced by Martin Scorsese was indecent. Nudity in "Schindler's List," another Spielberg movie, was allowed, but a few seconds of partial nudity in "NYPD Blue" was not ... Justice Elena Kagan offered a summary of the state of federal regulation in this area. "The way that this policy seems to work," she said, "it's like nobody can use dirty words or nudity except for Steven Spielberg."
With such statements from the bench, communications lawyers had some hope that, finally, we would get some Supreme Court guidance that would make sense of the policy or require a more rational and predictable standard, making the six-plus years since the appeal was filed worth the wait. We did not get it.
The question of what is indecent, and even whether any indecency regulation remains constitutional, is left an unfinished work. We still do not know the permissible First Amendment limit of broadcasting under the indecency standard. We have the fair notice that fleeting expletives are now considered actionable indecency, but we still do not have fair notice of what, or under what circumstance, speech will be considered indecent.
So, where are we?
Is there any guidance or are broadcasters just S.O.L. (oops, forgive me)?
Here is what we know.
Relief from Congress is unlikely. Various press reports indicate that Congress has no appetite for tackling this issue and lawmakers are hoping that the FCC will take up the issue again.
There are an estimated 1.5 million indecency complaints pending at the FCC that have been allowed to linger while we waited for a Supreme Court decision. Hundreds of stations now having to file license renewal have never had their last license renewal acted upon.
There is pressure on the FCC to act. With all these actions pending, the eyes of the public, broadcasters and the Congress are on the FCC; they will have to do something. Justice Kennedy stated: "This opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements and leaves courts free to review the current, or any modified, policy in light of its content and application."
Broadcasters are speaking out, demanding that the FCC provide more guidance and claiming that affiliates should not be held responsible for what happens on a network.
No question, we need more guidance for rational action. Nevertheless, there is some reasonably reliable guidance that broadcasters can rely upon now that the Court has established that if the FCC were to change its policy, even "without providing a reasoned explanation justifying the about-face," they could not be held in violation without adequate prior notice of the change and the new policy.
In the next article, we'll review some of those policies and standards.

Gregg Skall represents individual broadcasters and other parties in their regulatory dealings before the Federal Communications Commission and in their commercial business dealings. He serves as Washington Counsel to several state broadcaster associations. He also works with telecommunications companies and with radio device manufacturers to obtain FCC approvals and to assure regulatory compliance. Skall is a frequent author on broadcasting and the law and is published in Radio Business Report/Television Business Report and AllAccess, where his column “FCC Uncensored” is a regular feature.