Landmark Ruling to Be Destroyed by the F-Bomb?: U.S. Supreme Court to Hear Broadcast Indecency Case
Media Law Bulletin
Last week, the U.S. Supreme Court agreed to decide whether the Federal Communications Commission’s (FCC) policies, which for 33 years have banned nudity, expletives and other indecent content on broadcast television and radio, violate the Constitution.
The granting of a hearing in FCC v. Fox Television Stations, No. 10-1293, puts into question whether the Court will overturn its landmark 1978 ruling on indecency, FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Pacifica upheld the FCC’s finding that George Carlin’s classic “seven dirty words” radio monologue was indecent. This policy established the FCC’s ability to regulate the public airwaves.
But in recent years, several cases have shown a number of justices questioning whether the Pacifica standards were still relevant in a world of unfiltered cable television, Internet, film and radio.
The case is an appeal by the FCC of a ruling in 2010 by the Second Circuit Court of Appeals that said the FCC’s policy against “fleeting expletives” and other indecency, measured on a case-by-case basis, was “unconstitutionally vague.”
The Supreme Court reframed the case slightly, saying it would hear arguments only on whether the FCC’s “indecency enforcement regime” violated the free speech or due process clauses of the Constitution.
To better understand how the Court has framed the question, a brief history of the FCC regulation is in order.
Congress gave the FCC the responsibility to enforce Section 1464 (18 U.S.C. 1464), which “prohibits the utterance of any obscene, indecent, or profane language by means of radio communication.” In Pacifica, the seminal case in the FCC’s regulation of indecent broadcast, a radio station aired Carlin’s comedic monologue, which included extensive vulgar and sexual language. In the case, the Court found that the broadcast was indecent within the meaning of Section 1464 because the station played the monologue at a time when children were undoubtedly in the audience. The court determined the FCC’s action complied with the First Amendment. It balanced protecting the broadcast with the interests of society.
Following this decision, the FCC applied sanctions to broadcasts that repeatedly used vulgar language, and broadcasts that occurred before 10 p.m. It also declared a new “safe harbor” time from midnight to 6 a.m., during which indecent material could be broadcast.
Broadcast networks challenged the FCC on the basis that the standards were unconstitutionally vague and overly broad. However, in Actions for Children’s Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988), the courts ruled that the generic indecency definition used by the FCC was not unconstitutionally vague and overly broad. The Court determined, however, that the FCC failed to articulate any rational connection between the evidence presented and the decision to move the safe harbor hours. This ruling continues to stand.
A few years later, in Action for Children’s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991), the Court once again ruled that the FCC did not violate the First Amendment. The Court determined that the government might regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. The court found the government had a strong interest in protecting children from indecent material.
And in FCC v. Fox Television Stations, 129 S. Ct. 1800, 1810 (2009), the Supreme Court held that the FCC’s indecency policy was not “arbitrary” or “capricious” under the Administrative Procedure Act (APA). The APA sets forth the full extent of judicial authority to review executive agency actions for procedural correctness. It permits the setting aside of agency actions that are “arbitrary” or “capricious.” The Court determined that the FCC’s reasons for expanding the scope of its enforcement activity were entirely rational.
Obscenities on the Air
At issue in Fox, which will be heard next term, are two live broadcasts on the Fox network of the Billboard Music Awards: In 2002, Cher used an obscenity while accepting an award. In 2003, Nicole Richie, while presenting an award, used two vulgarities.
The Supreme Court will also consider whether the appellate court was warranted in overturning a fine against ABC stations for the 2003 broadcast of an episode of the then-popular ABC series “NYPD Blue,” which included a naked woman.
Fox has previously come before the court. In 2009, the Supreme Court ruled in a 5-4 decision that the commission had followed proper administrative procedures when it invoked the ban on expletives during certain hours against broadcasters. But several justices, including at least one on each side of the decision, expressed skepticism that the ban on expletives was constitutional.
The appellate court held that the FCC’s policy was inconsistent, in part because the commission ruled that Fox stations violated its policy with the language on awards shows while it allowed the use of the same language in a broadcast of the film “Saving Private Ryan.”
While Pacifica gave the FCC authority to regulate indecent speech like the Carlin monologue, which made deliberate and repetitive use of vulgarities, it left uncertain whether the use of an occasional expletive could be punished. The FCC later said it could, and it has generally ruled that broadcasters could not allow indecent material from 6 a.m. to 10 p.m. All of the incidents at issue occurred within those protected hours.
Many broadcasters have taken to self-censorship out of an abundance of caution in the past few years since the lower court’s decision in Fox.
End of FCC’s Indecency Regime?
It is possible that the Supreme Court’s granting of certiorari in the Fox case may be the end of the FCC’s indecency regime. In plain English, the issue that will be before the Court is whether the FCC can regulate the broadcasts of radio and television broadcast stations on the basis of protecting children.
It is interesting to look to the recent Supreme Court decision overturning California’s ban on the sale or rental of violent video games to minors as an indication of how the Court may rule in the Fox case. In Brown v. Entertainment Merchants Association, 2011 DJDAR 9459 (June 27, 2011) (formerly Schwarzenegger v. EMA), by a vote of 7-2, the justices found that the California law was unconstitutional. But the 7-2 decision lends itself to a very important question: When should First Amendment privileges be suspended for the protection of children?
Justice Antonin Scalia, writing the majority opinion, stressed that depiction of violent acts has never been restricted, even for kids. Justice Clarence Thomas, in his dissent, believes that government has the right to restrict speech to children that bypasses parents, and Justice Stephen G. Breyer believes that the protection of children trumps First Amendment protections of video game manufacturers.
Given only two Supreme Court justices were willing to find in favor of a California statute designed to protect minors from violent video games, will the Court likewise find that broadcast stations are not always worthy of special treatment different from other media including cable, DVDs, CDs, MP3s and the Internet?