The Supreme Court agreed on Monday to decide whether the Federal Communications Commission’s indecency rules are too broad.
At issue is whether the indecency regulations, which the FCC uses to enforce standards on the airwaves, are “impermissibly vague,” as an Appeals Court ruled last year. The lower court also said that the commission's rules violate the First and Fifth Amendment rights of broadcasters.
Taking the case to the Supreme Court is a gamble for the FCC, which won narrow support for its efforts from a divided Court in 2009. In that instance, the Court found that the commission's increased enforcement was a legitimate use of its authority. This time, the Appeals Court threw out the FCC’s entire indecency policy.
Both cases stem from a decision by Fox and ABC to take the FCC to court after the agency decided to strictly enforce indecency rules in 2004. In Fox’s case, the FCC found that expletives uttered during the 2002 and 2003 Billboard Music Awards were legally “indecent,” but the agency did not impose sanctions. ABC and 45 of its affiliates were fined after a 2003 episode of NYPD Blue showed a woman’s naked buttocks.
An FCC spokesman said that the agency is pleased that the Supreme Court will consider the case.
“We are hopeful that the Court will affirm the commission’s exercise of its statutory responsibility to protect children and families from indecent broadcast programming,” the agency said in a statement.
To be indecent under FCC rules, “material must describe or depict sexual or excretory organs or activities." Further, the content must be “patently offensive as measured by contemporary community standards for the broadcast medium." Broadcasters are allowed to air indecent speech between 10 p.m. and 6 a.m. That stance, they say, is unrealistic and unwarranted with the range of unregulated media such as cable and Internet. “In 2004, the FCC abandoned its previously restrained approach to indecency enforcement and assigned to itself the role of public censor of the good taste of broadcast television,” Fox lawyers argued in court documents.
The media companies say that the FCC has gone too far in imposing fines for unscripted, “fleeting expletives,” among other things. The National Association of Broadcasters said on Monday that content control is best left up to broadcasters and viewers.
“Responsible programming decisions by network and local station executives, coupled with program-blocking technologies like the V-chip and proper guidance of children by parents and caregivers, are far preferable to government regulation of program content,” Dennis Wharton, NAB's communications vice president, said in a statement.
Justice Samuel Alito recently acknowledged that he owned stock in Walt Disney, ABC's parent company, when he took part in the 2009 decision. He has since sold the stock and plans to hear the latest case. Justice Sonia Sotomayor, however, participated in some of the Appeals Court proceedings and has recused herself.
In 2008, an Appeals Court also ruled against the FCC after it fined CBS for Janet Jackson's 2004 Super Bowl "wardobe malfunction," in which a breast was exposed. But after deciding in favor of the commission in 2009, the Supreme Court ordered the Appeals Court to reconsider the case.
Enforcement of indecency issues has slowed in recent years as cases make their way through the courts. The FCC has faced criticism over a backlog of unprocessed indecency complaints generated by pauses in the process.
Earlier on Monday the Supreme Court struck down a California law banning the sale of violent video games to people younger than 18. The Court ruled that the statute violated free-speech protections. The high court also agreed to decide whether police need a warrant to use GPS to track cars.
This article appears in the June 27, 2011 edition of National Journal Daily PM Update.