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Supreme Court blocks FCC “fleeting expletive” sanctions, but ducks First Amendment issue

New FCC logoIn a case with huge implications for broadcast radio, the Supreme Court has overturned the Federal Communications Commission’s sanctions against Fox Television News for broadcasting so called “fleeting expletives”—essentially potty talk spoken on the fly. The same relief was extended to ABC for broadcasting a brief nudity scene on NYPD Blue.

“Because 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, the Commission’s standards as applied to these broadcasts were vague,” the High Court ruled on Thursday. That vagueness ran afoul of principles rooted in the Fifth Amendment of the constitution’s Due Process clause.

The Supremes noted that the FCC issued guidelines in 2001 which emphasized that indecent content could be understood as such if it dwelled on or repeated such fare “at length.” But the agency’s 2004 Golden Globes Order against Fox changed this policy without giving the broadcaster “fair notice” as to the nature of the new standard.

That Order sanctioned Fox for various brief but very ripe comments made by Nicole Richie and Cher during the 2002 and 2003 BillBoard Music Awards. “I’ve also had critics for the last 40 years saying that I was on my way out every year,” Cher triumphantly declared. “So fuck ’em.” It was called “Golden Globes” because the original fleeting comment provoking the agency’s displeasure came from Bono at a 2003 Golden Globes ceremony. “This is really, really fucking brilliant” Bono exclaimed.

“Regulated parties should know what is required of them so they may act accordingly; and precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way,” the court ruled. “When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.”

But the Supremes did not rule on whether the underlying decision, FCC versus Pacifica, adhered to the First Amendment. Because the FCC had violated the constitution’s Due Process clause, the constitutionality of Pacifica did not need to be examined, the justices contended.

This decision takes some heat off of broadcast radio. During oral arguments before the court in January, the Department of Justice made it pretty clear that if the FCC’s fleeting expletive policy was declared constitutional, the government would soon set its sights on radio.

A lot of the most “lewd material really is in radio,” DOJ Solicitor General Donald B. Verrilli warned. “It’s just as ubiquitous as it was. There isn’t even any argument that there is blocking technology available. I want to make sure, given the kind of vile material that the record demonstrates has been transmitted over time on radio, that the Court focuses on the breadth of the argument that the Respondents are making here.”

The “Respondents” were the broadcasters, asking for judicial relief from the FCC’s sanctions and fines, which they have now obtained. But there’s nothing in this court decision blocking the FCC from giving its indecency policies another go.

“This opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements,” the court’s opinion concluded. “And it leaves the courts free to review the current policy or any modified policy in light of its content and application.”

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