[lg policy] Linguistic Hygiene: US Supreme Court Rules FCC's Indecency Policy 'Vague'

Harold Schiffman hfsclpp at GMAIL.COM
Fri Jun 22 14:25:54 UTC 2012

Supreme Court Rules FCC's Indecency Policy 'Vague' but Allows Agency
to Further Police Nudity and Language on TV

Despite First Amendment concerns from broadcasters, the high court
rules unanimously that the government still has a role in policing the
7:42 AM PDT 6/21/2012 by Eriq Gardner

The U.S. Supreme Court handed TV networks a win Thursday by
determining that the FCC violated their due process in failing to give
advance notice on policies concerning isolated instances of fleeting
naughty words and nudity on television. But the high court declined to
issue a much broader ruling that the broadcasters had hoped to get
that the FCC's indecency policies constituted a violation of the First
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Justice Anthony Kennedy wrote a unanimous opinion that called FCC's
past indecency enforcement "vague."

But for the second time in five years, the justices have decided not
to shake up more than three decades of legal precedent that has guided
racy content on broadcast television. The high court says it won't yet
address the larger First Amendment issues. Instead, the justices are
allowing the FCC to have continued authority to oversee indecency on
the airwaves. Eight justices voted to vacate and remand a decision
from the 2nd Circuit. Justice Sonia Sotomayor didn't participate, and
Justice Ruth Bader Ginsburg concurred.

According to Kennedy's opinion, the FCC is free to amend its policy to
further the public interest, and future courts will be able to review
changes and how evolving policy will be applied. The opinion is a
narrow one and likely will cause more battles over indecency in the

The high court was tasked with reviewing FCC policies started under
the George W. Bush administration. In 2001, the FCC put out a policy
statement that it would no longer punish fleeting and isolated uses of
expletives. But during the next few years, the FCC changed its stance,
warning Fox over curse words uttered by Cher and Nicole Richie on
awards shows and fining ABC for fleeting nudity on the drama NYPD
Blue. The new toughness also came amid Janet Jackson's high-profile
"wardrobe malfunction" during the 2004 Super Bowl halftime show.

Fox and ABC challenged the FCC's actions, and the 2nd Circuit Court of
Appeal vacated the regulatory agency's policy enforcement as
"arbitrary and capricious." In 2009, the dispute went to the Supreme
Court, which reversed the 2nd Circuit but failed to make a broad
ruling on the First Amendment challenges brought by broadcasters. The
dispute was sent back to the 2nd Circuit, which again found that the
FCC was wrong, hinting that the time had come to re-examine indecency
on broadcast television in light of the development of cable
television, YouTube, Twitter and various new media.

The Supreme Court granted a rare second review, taking a new
opportunity to address the previous landmark ruling pertaining to
indecency on the airwaves -- the 1978 Pacifica decision authored by
Supreme Court Justice John Paul Stevens, which upheld the FCC's
authority while preaching some vague restraint. That case is most
famous for taking on late comedian George Carlin's "Seven Words You
Can Never Say on Television" monologue and establishing that "when the
Commission finds that a pig has entered the parlor, the exercise of
its regulatory power does not depend on proof that the pig is

On Thursday, the Supreme Court took another look at the pig and
decided that the FCC should provide better notice to how it determines
obscenity, but the court declined to make a much bigger decision about
exactly what the FCC should do. The justices deferred that judgment to
the agency, and future courts will continue to review enforcement
actions and broadcaster challenges.

In making the decision that the FCC should have given ABC and Fox
proper notice, Kennedy based it on an interpretation of the Due
Process Clause of the Constitution. In doing so, he noted that the
Supreme Court "need not address the First Amendment implications of
the Commission’s indecency policy or re-consider Pacifica at this

In an analysis that follows, Kennedy went on to say there is no need
for the FCC to "provide detailed justifications for every change or to
show that the reasons for the new policy are better than the reasons
for the old one."

He said that is why when the Supreme Court ruled the first time in
this case, it determined that the agency hadn't acted arbitrarily and
capriciously. Plus, it determined that the agency had a rational basis
for adopting a policy on isolated and fleeting instances of profanity
and nudity.

But now, upon further review, Kennedy found something else troubling.
"A fundamental principle in our legal system is that laws which
regulate persons or entities must give fair notice of conduct that is
forbidden or required," he wrote. "This requirement of clarity in
regulation is essential to the protections provided by the Due Process
Clause of the Fifth Amendment. It requires the invalidation of laws
that are impermissibly vague."

Perhaps most important for future fights, Kennedy then added, "When
speech is involved, rigorous adherence to those requirements is
necessary to ensure that ambiguity does not chill protected speech."

The justice then said it's clear that the FCC gave no notice to Fox or
ABC that fleeting expletives or a brief shot of nudity could be
actionable. "Therefore, the Commission’s standards as applied to these
broadcasts were vague, and the Commission’s orders must be set aside."

The broadcasters get a small victory, but not the broad one they might
have been hoping for. The opinion says the high court has decided not
to analyze whether the commission's powers should be looked at again
in the context of whether everything has been "overtaken by
technological change and the wide availability of multiple other
choices for listeners and viewers."

The outcome has disappointed First Amendment observers, who believe
that the court has merely kicked the big issues into the future for
yet another showdown.

“The Supreme Court decided to punt on the opportunity to issue a broad
ruling on the constitutionality of the FCC indecency policy," says
Paul Smith of Jenner & Block. "The issue will be raised again as
broadcasters will continue to try to grapple with the FCC's vague and
inconsistent enforcement regime.”

The TV networks are weighing in.

"We're pleased with the decision of the Supreme Court regarding the
episode of NYPD Blue, and we are reviewing the entire ruling
carefully," ABC said in a statement.

“We are pleased,” Fox spokesman Dan Berger, said in a statement. “The
court recognized that the case has significant First Amendment
implications that require notice to be clearer.”

The MPAA also gave comment.

"The MPAA’s preference has always been for self-regulation," said
Henry Hoberman, senior executive vice president and global general
counsel. "But we are pleased that the Supreme Court today recognized
that any rules regulating broadcast indecency must provide clarity and
fair notice about what is permissible on the public airwaves. Vague
rules that leave broadcasters guessing as to the legality of their
programming chill legitimate speech, depriving viewers of the content
they could otherwise enjoy."

If there's any doubt that this isn't the full victory the networks
wanted, the Parents Television Council has also put out a statement
that proclaims victory.

"Once again the Supreme Court has ruled against the networks in their
years-long campaign to obliterate broadcast decency standards," said
PTC president Tim Winter. "The court today specifically acknowledged
the FCC’s ability to continue broadcast decency enforcement as part of
its public interest obligation. Pacifica is still good law. The FCC
must now rule on the merits of more than 1.5 million backlogged
indecency complaints. The ‘notice’ requirement, which allowed Fox and
ABC to slip off the hook in these two cases at issue today, has
already been satisfied for all the pending complaints."


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