The Supreme Court said the FCC imposed unfair punishment for isolated profanity and sexual content during evening prime-time hours.
While the specific case concerned television, the arguments apply to radio.
In an 8–0 vote, the justices decided the FCC cannot enforce its current policy to punish broadcasters for airing “fleeting” expletives and nudity. The commission began imposing heavier fines for such violations nearly a decade ago, sparked by outrage from public interest groups after Janet Jackson’s breast-baring incident during the 2004 Super Bowl halftime show.
A federal appeals court had twice concluded that the indecency policies were vague and inconsistently applied.
The incidents decided on today by the justices aired on Fox and ABC Television. The former concerned fleeting utterances of obscene words during a live awards broadcast and the latter concerned about seven seconds of female nudity.
“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,” wrote Justice Anthony Kennedy for the majority.
Under the 2001 indecency guidelines in force when the broadcasts occurred a key consideration was whether the material dwelled on or repeated at length the “offending description,” but in its 2004 order specific to these cases, the commission “changed course,” he wrote.
The justices found the government’s contrary arguments to be unpersuasive and said the FCC is free to modify its indecency guidelines.
The court did not address whether the FCC’s current indecency policy is constitutional.
Broadcasters have argued the policies have a chilling effect on free speech.
FCC Commissioner Robert McDowell sayid the FCC must expeditiously implement the court’s decision to put an end to years of litigation and uncertainty regarding the commission’s regulation of indecent content.
The commissioner called on the commission to “get back to work” and process the backlog of pending indecency complaints — numbering just under 1.5 million involving about 9,700 TV broadcasts. Some of the complaints go back to 2003, McDowell said, adding that some 300 TV license renewals remain pending due to the indecency litigation.
Chairman Julius Genachowski and new Commissioner Jessica Rosenworcel, both Democrats, were reviewing the decision.“Consistent with vital First Amendment principles, the FCC will carry out Congress’s directive to protect young TV viewers,” stated the chairman.
Their colleague Commissioner Ajit Pai, a Republican, said the decision “does not call into question the commission’s overall indecency enforcement authority or the constitutionality of the current policy. What the Justices’ action does do, said Pai, is highlight the need for the FCC to make its indecency policy clear. Pai, too, called for his colleagues to reduce the backlog of indecency complaints.
NAB believes the practical impact of a Supreme Court decision may be less dramatic than it may appear because indecency rules have been applied between 6 a.m. and 10 p.m., the hours outside the so-called “safe harbor.”
The trade group “has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content,” said NAB EVP Communications Dennis Wharton. “We don’t believe that broadcast programming will change as a result of today’s decision, given the expectation from viewers, listeners and advertisers that our programming will be less explicit than pay-media platform providers.”
Activist group Public Knowledge was pleased with the court decision, calling it the “right result.”
“We have been, and still are, concerned with the First Amendment problems caused by the FCC’s current indecency rules. But those problems will have to be addressed another time,” said PK Senior Staff Attorney John Bergmayer.
