Regulating Indecency on Television: The Supreme Court Says Yes and No

The U.S. Supreme Court this week threw out penalties against television stations that violated the Federal Communications Commission policy regulating curse words and nudity on television airwaves.  The case was FCC v. Fox TelevisionStations.

Justice Anthony Kennedy wrote for a unanimous Court that the FCC’s actions violated due process because the agency failed to give broadcasters “fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.” 

The dispute arose out of a change in enforcement policy.  In 2001, the FCC announced that it would no longer punish fleeting and isolated uses of expletives.  In this case, however, the FCC did impose penalties for fleeting nudity on the television drama NYPD Blue and the use of the “F-word” by Cher and Nicole Richie on awards shows.

While striking down the penalties in this case on the ground that the enforcement policies did not give broadcasters sufficient notice of actionable conduct, the Court stated that the FCC was “free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements.”

The Court declined to issue a broader ruling on the Constitutionality of the FCC's indecency policies under the First Amendment.  As a result, the ruling does not change the FCC’s substantive authority to regulate indecency on broadcast television.

An interesting side note is that this dispute arose out of events that happened about a decade ago, in 2002 and 2003.  Broadcasters had argued in this case that the indecency regulations, which apply only to broadcast channels, were obsolete in light of the diversity of media available through the Internet, cable and satellite television, smart phones and related devices.

Given the speed with which technology and media are changing, it is fair to ask what technology and media will look like a decade from now, and whether a substantive legal challenge initiated today will be upheld if the Supreme Court finally gets the issue in about 2022.

John Howley, Esq.

New York, New York