The Supreme Court today struck down the Federal Communications Commission’s findings of liability against two broadcasters that aired “fleeting” profanity and nudity on primetime television.  But in invalidating the sanctions on due process grounds, the Court sidestepped the much-debated question of whether the FCC’s indecency policy could withstand a First Amendment challenge.  

In Federal Communications Commission v. Fox Television Stations, Inc. and Federal Communications Commission v. ABC, Inc., the Supreme Court held 8-0 that the Commission did not give Fox and ABC fair notice that “fleeting” expletives and nudity could be found indecent in light of the Commission’s history of enforcement and the official guidance available at the time of the broadcasts.  As a result, the Court found the policy unconstitutionally vague as applied to the Fox and ABC shows and overturned the sanctions against the two media companies.

What Nicole Richie, Cher, Bono and NYPD Blue Have in Common

The cases arose from what the Commission alleged were three indecent incidents aired on Fox and ABC nearly a decade ago.  The first two occurred during Fox’s live broadcasts of the 2002 and 2003 Billboard Music Awards in which singer Cher and reality television star Nicole Richie used the expletives “f***” and “s***” and variations thereof in their unscripted remarks.  The third involved a brief nude scene in a 2003 episode of the ABC crime drama NYPD Blue.  The FCC received complaints from the public about all three broadcasts. 

In 2004, before the Commission made any determination of liability against Fox or ABC, it issued a decision imposing liability on NBC for airing an expletive during the 2003 Golden Globe Awards.  The Commission found that “f***,” the word uttered by U2’s Bono during the live broadcast, was “one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language” and that even the “fleeting” or “isolated” use of such a term would be indecent in violation of the statute.

Two years later, the Commission issued notices of liability to Fox and ABC based on the Billboard Music Awards and NYPD Blue incidents.  Fox and ABC appealed to the U.S. Court of Appeals for the Second Circuit on administrative, statutory, and constitutional grounds.  In a 2-1 decision, the Second Circuit held that the FCC’s finding of liability was “arbitrary and capricious” because the FCC had no history of enforcing such “fleeting” expletives or nudity prior to the broadcasts. 

On an appeal from that decision, the Supreme Court reversed and remanded, holding that the Commission’s decision was not arbitrary and capricious but declining to decide whether its indecency policy violated the broadcasters’ First Amendment rights.  On remand, the Second Circuit invalidated the Commission’s indecency policy as unconstitutionally vague because it determined that the broadcasters had not been given fair notice of what could be considered indecent. 

The Commission’s Failure to Offer Guidance and Inconsistent Enforcement is Key

In today’s decision, the Supreme Court affirmed the Second Circuit’s holding. Justice Kennedy’s opinion traced the Commission’s history of enforcing the statute at issue, 18 U.S.C. § 1464, which provides that “[w]hoever utters any obscene, indecent, or profane language … shall be fined … or imprisoned not more than two years, or both.”  The Supreme Court’s first ruling on the Commission’s enforcement scheme came in 1978, when it held 5-4 in FCC v. Pacifica Foundation that George Carlin’s “Filthy Words” monologue, in which several expletives were repeated for comedic effect, was indecent.

The Commission enforced the statute within the narrow confines of the Pacifica decision until 2001, when it issued a policy statement setting forth new guidelines for what the Commission would consider indecent in future actions.  Those included depictions of “sexual or excretory organs” or activities that were “patently offensive as measured by contemporary community standards for the broadcast medium.”  One of the factors in determining whether the material was “patently offensive,” the Commission said, was whether it “dwells on or repeats at length” any potentially offensive conduct or words.  In accordance with this guidance, the Commission in the years following repeatedly refused to impose liability on broadcasters for “fleeting” words or images that, if not for their isolated nature, could otherwise be considered indecent. 

The Supreme Court found that it was under this enforcement scheme that Fox and ABC aired the broadcasts at issue.  Justice Kennedy wrote that “[t]his regulatory history … makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent.”  Indeed, the majority recognized that it was not until the Commission’s 2004 order finding NBC liable for the expletive uttered by Bono that it “changed course and held that fleeting expletives could be a statutory violation.”

The Court Avoids the First Amendment Issue

As important as what the Supreme Court did hold is what it did not hold.  In finding the Commission’s standards as applied to the Fox and ABC broadcasts were vague, the majority noted that it “need not address the First Amendment implications of the Commission’s indecency policy,” including whether its Pacifica ruling should be overruled in today’s media environment.  Nor did it address whether the Commission’s current indecency policy was constitutional.  The Court did note, however, that the decision “leaves the Commission free to modify its current indecency policy … [a]nd … the courts free to review the current policy or any modified policy.” 

Justice Ginsburg wrote a concurring opinion stating the she would overrule the Court’s decision in Pacifica because both “time” and “technological advances” have made the Commission’s rulings on indecency “untenable.”   Justice Sotomayor recused herself from the case.

The cases are Federal Communications Commission, et al. v. Fox Television Stations, Inc., et al. and Federal Communications Commission v. ABC, Inc., et al., No. 10-1293 (June 21, 2012).

Opinion available at: