Digital Media and Data Privacy Law Blog

Earlier this summer, the U.S. Supreme Court released during the last week of its 2011 term its long-awaited opinion in the broadcast indecency cases FCC v. Fox Television Stations, Inc. and FCC v. ABC, Inc. This decision represents an important victory for broadcasters, but, as explained below, leaves several important questions unresolved.

Background

The Fox case arose from the 2002 and 2003 Billboard Music Awards shows, in which Cher used the F-word during the live broadcast of the 2002 show and Nicole Richie used both the F-word and the S-word during the 2003 show. Its counterpart, the ABC case, arose from a February 2003 episode of the award-winning prime-time drama NYPD Blue in which an actress’s bare buttocks were shown for fewer than seven seconds. The FCC found all three broadcasts indecent and imposed substantial forfeitures on 45 ABC stations for their broadcast of NYPD Blue.

In 2010, the Second Circuit Court of Appeals ruled in the Fox case that the FCC’s indecency policy was so vague that it violated the Constitution because it did not give broadcasters sufficient notice of what material the Commission would consider indecent. The Second Circuit’s decision in Fox overturned the indecency findings arising from the Billboard Music Awards broadcasts; the court later applied that decision to overturn the indecency finding against the episode of NYPD Blue. The U.S. Supreme Court heard the appeal from both lower court decisions in January and issued its decision five months later, on June 21, 2012.

The Supreme Court’s Opinion

As the opinion explained, under the FCC's more restrained indecency enforcement policy in place at the time of the challenged broadcasts, the Commission did not sanction fleeting and isolated uses of expletives but, rather, only sanctioned expletives used in a “verbal shock treatment” like George Carlin’s famous “Filthy Words” monologue. (A midafternoon radio broadcast of the Carlin monologue led to the Supreme Court’s 1978 decision in Pacifica Foundation v. FCC, which for the first time upheld the FCC’s authority to regulate the broadcast of indecent material by radio and television stations.)

The FCC’s change in its indecency policy was first announced in a decision following the 2003 broadcast of the Golden Globes awards show, during which singer Bono uttered the F-word during his acceptance speech. The Commission’s Golden Globes decision in March 2004 held, for the first time, that a single, unscripted expletive could be indecent. The FCC then applied its new “fleeting expletives” policy, after the fact, to the Fox broadcasts of the 2002 and 2003 Billboard Music Awards shows. It subsequently found the 2003 episode of NYPD Blue to be indecent.

In a unanimous opinion authored by Justice Kennedy, the Supreme Court held in June that broadcasters could not have known in 2002 and 2003 that the FCC would later find isolated expletives uttered during live awards shows or briefs displays of nudity to be indecent. Because the indecency policy in place at the time of the challenged broadcasts did not give broadcasters “fair notice” of where the line would be drawn with respect to “fleeting expletives” or brief nudity, the Due Process Clause required the indecency findings to be set aside against the broadcasters in Fox and ABC.

Because the Court was able to resolve both cases on the more limited ground that these parties did not have fair notice that these broadcasts would be deemed indecent, the Court declined to decide broader constitutional questions, including: (1) whether the Commission’s indecency policy as it now stands is, on its face, so vague and uncertain that no broadcaster could have fair notice of what speech is prohibited, and (2) whether the First Amendment prohibits the Commission from regulating constitutionally-protected indecent speech (and thus whether Pacifica should be reconsidered).

What Does This Mean Going Forward?

What does the Fox decision mean for broadcasters going forward? The Supreme Court’s opinion leaves several avenues open to the FCC. The Commission cannot impose indecency sanctions on the 2002 and 2003 broadcasts at issue in these cases, and it almost certainly cannot treat other “fleeting expletives” broadcast prior to the 2004 Golden Globes order as indecent in any other pending cases. For cases involving brief nudity, the date line is less clear, but broadcasters are presumably on notice since the FCC’s order in the 2004 Super Bowl/Janet Jackson case, as noted below.

For broadcasts that occurred after the 2004 Golden Globes decision, however, the Commission may elect to impose its current fleeting indecency standard. Should it choose to do so, broadcasters are sure to challenge that policy on the broader constitutional grounds: (1) that the policy itself is so vague that it violates the Due Process Clause because broadcasters simply cannot tell what material the Commission ultimately will deem indecent and (2) that indecency regulation, at least beyond the narrow contours of Pacifica, tramples on broadcasters’ First Amendment rights. The Second Circuit Court of Appeals has struck the current policy, so the FCC is fully aware that its existing policy is not likely to survive a further court challenge.

The 2004 Super Bowl broadcast, in which Janet Jackson’s breast was briefly revealed, was not a part of the Fox decision. In November 2011, the Third Circuit Court of Appeals threw out the $550,000 fine against the CBS stations for the broadcast of the “wardrobe malfunction” on the grounds that it was a departure from the FCC’s existing policies. Earlier this year, the government appealed the Janet Jackson decision to the Supreme Court and asked the Court to hold the appeal until Fox was decided, but the Court issued an order on June 29, 2012, declining to review the decision. The Third Circuit’s decision, which was based on procedural rather than constitutional grounds, thus stands as the final word on the Janet Jackson broadcast. In his comments accompanying the order, however, Chief Justice Roberts warned that “the brevity of an indecent broadcast—be it word or image—cannot immunize it from FCC censure,” and that “any future ‘wardrobe malfunctions’ will not be protected.” So where the law on “fleeting” expletives and pictures is headed remains unclear.

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Although the Fox decision, which set aside more than a million dollars in fines imposed on the ABC stations that aired NYPD Blue, was a victory for the broadcaster parties, the narrow decision nevertheless leaves a number of important issues unresolved. The Supreme Court’s limited holding promises further proceedings, at the FCC and in the federal courts, before the contours of the Commission’s constitutional authority to regulate broadcast indecency are finally settled.
 

Currently there are nearly 1.5 million indecency complaints at the FCC that have remained pending in light of the Fox case. These complaints involve about 9,700 television broadcasts. Some date back to 2003 and are holding up more than 300 license renewal applications. In separate statements, both Commissioner Robert McDowell and Commissioner Ajit Pai expressed that it is now time for the FCC staff to get to work and start processing this significant backlog. How the FCC will process these complaints in light of the Fox decision will likely depend on a variety of factors. Some believe the Commission will not act until after the November elections. It is impossible to say at this time.