WASHINGTON, D.C.— The U.S. Supreme Court on Thursday avoided reconsidering the First Amendmentrights of broadcasters, striking down government penalties for indecentprogramming on narrow due process grounds.
The Court, in a unanimous decision, held that ABC and Foxtelevision stations didn’t have fair notice of the federal government’s ban onbrief uses of profanity and nudity in 2002 and 2003. The dispute stems fromairings of the Billboard Music Awards during those years, when swear words fromcelebrities made it to air, along with an episode of NYPD Blue that included a woman’s bare buttocks.
After receiving complaints, the Federal CommunicationsCommission declared the broadcasts indecent. It fined ABC and its affiliatestations nearly $1.24 million, but opted not to fine the Fox affiliates.
More than 30 years ago, the justices allowed the FCC toregulate “indecency” over the airwaves in the landmark Pacifica decision involving George Carlin’s “filthy words”monologue. At the time, the Court reasoned that the pervasive nature ofover-the-air broadcasting and its unique accessibility to children justifiedgiven broadcasters a reduced level of First Amendment protection. Historically,however, the government had limited its enforcement to repeated uses ofprofanity, not one-time “fleeting expletives.”
The justices had the opportunity to revisit or overturn Pacifica with the Fox case, but passed. Justice Ruth Bader Ginsburg, in abrief concurring opinion, wrote that she believes Pacifica was wrongly decided and should be reconsidered. In a prioropinion, Justice Clarence Thomas has also suggested his willingnessthe re-examine prior broadcasting decisions.
The Court on Thursday opted to dodge the First Amendmentissue altogether. Instead, it held that the FCC did not give ABC and Foxadequate notice that it would begin fining stations for brief nudity andprofanity. The commission’s conflicting prior decisions, the Court ruled, leftit unclear whether such content was prohibited. The ruling is based on theFifth Amendment right to due process of law.
While the ruling is a win for ABC and Fox, it comes as adisappointment to other broadcasters who hoped the Court would eliminate thegovernment’s ability to regulate indecency – something it cannot do in an othermedium.
The Parents Television Council, which advocates for decencyon television to protect children, applauded the decision.
“Once again the Supreme Court has ruled against the networksin their years-long campaign to obliterate broadcast decency standards,” PTCPresident Tim Winter said in a press release. “The FCC must now rule on themerits 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 casesat issue today, has already been satisfied for all the pending complaints.”
The National Association of Broadcasters, in a statement,vowed that Thursday’s decision would not have a significant impact ontelevision and radio programming. It reiterated its position thatself-regulation of content is preferable to government enforcement.
The Student Press Law Center and College Broadcasters Inc. filed a friend-of-the-court brief in the case, arguing student broadcasters would be uniquely impacted by the decision because they carry live sports programming and edgy popular music.
The broader impact of the Supreme Court’s ruling is likelylimited. Justice Anthony Kennedy noted in his opinion that thedecision leaves the FCC free to revise its indecency policy – and leaves lowercourts free to rule on the constitutionality of the existing policy.
It also means the First Amendment protection of broadcasters isan issue the Court will have to resolve another day.
By Brian Schraum, SPLC staff writer