In a ruling with important implications for broadcasters, Fox and ABC are off the hook for fines incurred under the Federal Communication Commission’s policy of policing “fleeting expletives” and nudity on broadcast television, the Supreme Court ruled unanimously on Thursday. But the Court also ruled that the structure of the FCC’s authority to regulate the airwaves remains in place.
In an 8-0 decision, the Court decided the case in terms of the Fifth Amendment right to due process, ruling that Fox and ABC were not adequately notified that their broadcasts would expose them to fines. It vacated an Appeals Court decision, couched in the First Amendment, ruling that the FCC’s authority over such broadcasts is “arbitrary and capricious.” That means that the standards for regulating broadcast content as articulated in FCC vs. Pacifica--the famous case involving George Carlin’s monologue about dirty words--are still the law of the land.
The case was remanded to the Second Circuit Court of Appeals for any further action. The ruling also stated that the FCC was free to alter its policy on broadcast indecency as it saw fit.
Justice Anthony Kennedy wrote the opinion, which was joined by the rest of the Court, except for Justice Sonia Sotomayor, who recused herself, and Justice Ruth Bader Ginsburg, who issued a concurring opinion.
The case is Federal Communications Commission v. Fox.