[author: John Stephens]
Yesterday, the Supreme Court ruled on the much-anticipated Federal Communications Commission v. Fox Television Stations, No. 10-1293 (FCC v Fox), case. Rather than issue a game-changing opinion, the justices declined to address whether the government still had the authority to regulate indecency on broadcast television.
The court did not decide the constitutionality of the regulations, which have been challenged in light of changes in the media landscape that broadcasters say have undermined the rationales for limiting their free speech rights.
FCC v Fox arose from the broadcast of fleeting expletives by celebrities on awards shows on Fox and partial nudity on the police drama “NYPD Blue” on ABC. Justice Anthony M. Kennedy, writing for seven justices, said the commission did not give notice and had changed the rules in the middle of the game.
“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,” Kennedy wrote.
That left the larger free speech questions unresolved.
“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,” Kennedy wrote. “And it leaves the courts free to review the current policy or any modified policy in light of its content and application.”