Fox was criticized but not fined by the FCC for allowing the broadcast of vulgar words during live award shows before 2004. ABC and local affiliates were fined $1.2 million for showing a 2003 episode of “NYPD Blue” in which an actress’s bare buttocks were displayed for seven seconds in a shower scene.
“The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent,” Justice Anthony M. Kennedy wrote for the court. “Therefore, the commission’s standards as applied to these broadcasts were vague, and the commission’s orders must be set aside.”
The case had raised constitutional questions about whether the FCC should still monitor the nation’s airwaves; the court in 1978 gave the commission the power to regulate the airwaves for indecency during the times children were most likely to be watching, from 6 a.m. to 10 p.m.
The networks had argued successfully in lower courts that those regulations were relics from a time when broadcast television played a significantly different role in American households.
Now, in a world where broadcast networks exist “side by side” with cable channels that are beyond the FCC’s regulation and the Internet is unrestricted, singling out the networks is not only nonsensical but unconstitutional, they argued.
That debate seemed to divide the justices when the case was argued, and the length of time it took to come up with the narrow resolution announced Thursday suggested the court remained knotted.
The case was argued in early January, with Justice Sonia Sotomayor recusing herself. The eight remaining justices may have been evenly split over whether continued regulation by the FCC was warranted or violated the First Amendment.
Only Justice Ruth Bader Ginsburg said, in a concurring opinion, that the court’s 1978 FCC v. Pacifica ruling needed to be reexamined. “Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration,” she wrote.
Groups that have urged the FCC to take an even stronger role in monitoring what they say is a coarsening of the broadcast networks were pleased that the commission’s role was not diminished.
“Once again, the Supreme Court has ruled against the networks in their years-long campaign to obliterate broadcast decency standards,” said Tim Winter, president of the Parents Television Council.