Supreme Court overturns indecency fines against Fox, ABC

The Supreme Court on Thursday struck down the Federal Communications Commission’s (FCC) fines of ABC and Fox for broadcasting “indecent” content.

But the ruling was narrow, and the federal government retains the power to police the airwaves.

The court unanimously found that the fines were illegal because the FCC failed to give fair notice that fleeting expletives and momentary nudity were considered indecent. But the court did not address whether fines over indecent content violate the First Amendment’s free speech protections.

In 2002, the singer Cher swore during a live broadcast of the Billboard Music Awards on Fox. The next year, Nicole Richie swore during the same awards show. And a 2003 episode of “NYPD Blue” on ABC showed a woman’s naked rear.

{mosads}After those incidents, the George W. Bush-era FCC in 2004 adopted a tough anti-indecency policy, banning even unscripted fleeting expletives and momentary nudity. The commission then fined Fox and ABC for violating the standard.

The Supreme Court already ruled once in the FCC v. Fox case in 2009, upholding the FCC’s indecency policy. But the court only addressed an administrative challenge, and sent the case back to a lower court to determine its constitutionality. That lower court struck down the policy as violating the First Amendment, and the Supreme Court agreed to re-hear the case. 

But rather than address the First Amendment issue, the court on Thursday ruled that the FCC violated the stations’ due process rights by applying a new indecency policy that wasn’t in effect when the incidents occurred. The court said the enforcement was unconstitutionally “vague.”

“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,” Justice Anthony Kennedy wrote in the court’s opinion. 

The broadcasters had urged the court to strike down the FCC’s entire indecency enforcement system as a violation of the First Amendment, but the court declined to overturn its 1978 decision in FCC v. Pacifica, which upheld the constitutionality of policing speech on the airwaves. 

Although the ruling was unanimous, Justice Ruth Bader Ginsburg issued a separate opinion saying the court should have reversed Pacifica and struck down the indecency fines.

The National Association of Broadcasters said viewers don’t need to worry that the ruling will unleash a flood of HBO-style content on network television.

“NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content,” NAB spokesman Dennis Wharton said in a statement. “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.”

In a statement, Robert McDowell, a Republican commissioner on the FCC, urged his agency to “expeditiously implement the Court’s decision to put an end to years of litigation and uncertainty regarding the Commission’s regulation of indecent content on America’s airwaves.”

“We owe it to the American public and the broadcast licensees involved to carry out our statutory duties with all deliberate speed,” he said.

— This story was updated at 12:00 p.m.