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Victory But Not Clarity at the Supreme Court

| June 22, 2012

By Steven J. J. Weisman
Legal Editor

BOSTON — Yesterday (6/21/12) the United States Supreme Court issued its long-awaited decision on the FCC’s indecency standards for broadcast radio and television and the decision hardly seems worth the wait.

In a decision that reminded me of a story about the comedian Professor Irwin Corey, who billed himself as the world’s foremost authority, he was asked, “Why do you wear sneakers?”  He replied by saying that this actually was two questions.  The first question was “Why?” and he went on to a long philosophical discussion of “why.”  Then he went on to the second question, “Do you wear sneakers?” and he promptly responded, “Yes.”

In this case the Supreme Court was asked whether or not the FCC’s indecency rules were in violation of the First Amendment.  However, rather than answer that question, the court merely determined unanimously, after much discussion, that the standards were applied retroactively and therefore they could not be enforced against ABC and Fox.  As for the overriding question of the unconstitutionality of the rules themselves, the Court ruled that it did not even have to answer that question because the application of the FCC’s indecency rule was improperly done in a manner that violated the Due Process clause of the 14th Amendment.

The Supreme Court first ruled on indecency on broadcast radio and television back in 1978 when it dealt with George Carlin’s famous “Filthy Words” monologue.  At that time it defined as indecent “language that describes in terms patently offensive as measure by contemporary community standards for the broadcast medium, sexual or excretory activities and organs.”  Although these words did not qualify as obscenity, which would not be protected by the First Amendment under any circumstances, indecency could be limited on the broadcast airwaves to hours during which children were unlikely to be listening or viewing in order to protect children from the corrupting influence of such language.

The cases before the Supreme Court in this case, FCC et al vs. Fox Television Stations, Inc. et al dealt with FCC indecency actions against Fox television and ABC television.  The Fox indecency actions dealt with the fleeting use of the word that the FCC will only refer to as the “f word” even when it argued the case before the Supreme Court.  Specifically, the word was fleetingly used in acceptance speeches at two Golden Globe Awards ceremonies as where Cher, upon receiving an award said, “I’ve also had my critics for the last 40 years saying that I was on my way out every year.  Right.  So fuck ‘em.”  The FCC indecency action against ABC dealt with a 2003 episode of “NYPD Blue” in which the nude buttocks of an adult female character was shown for approximately seven seconds and for a moment the side of her breast.  In this instance the Court indicated that the FCC “determined that regardless of medical definitions, displays of buttocks fell within the category of displays of sexual or excretory organs because the depiction was ‘widely associated with sexual arousal and closely associated by most people with excretory activities.’”

From 1978 until 1987 the Commission narrowly interpreted its indecency rules and brought no indecency actions.  In 1987, however, the FCC determined that it had been interpreting the rules too narrowly and broadened their definition of indecency.

The FCC at this time determined that three factors would determine whether or not material was indecent:

  1.  The explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities;
  2. Whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; and
  3. Whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.

Specifically, for years, the FCC consistently took the position that passing or fleeting utterances of indecent words would not qualify as violation of the indecency rules because it did not dwell or repeat the words at length.

Later, however, the FCC changed course and ruled that, as they put it, any use of the “F-word” or the “S-word” regardless of how fleeting would qualify as objectionable indecency.  This change of policy by the FCC was applied retroactively to the ABC and Fox shows which were the basis of the Supreme Court case.  Thus, the Supreme Court ruled that because the television networks had no notice at the time that the shows were broadcast that a standard formulated after the broadcasts of their shows would be used to determine whether the shows violated indecency standards, the FCC was guilty of violating the 14th Amendment guarantee of Due Process of law.  It was impossible for the networks to comply with a standard that had not been implemented at the time they broadcast the shows that were later judged by the FCC to have violated the new standard after the fact.

The Supreme Court decision written by Justice Anthony Kennedy then concluded that because the case was resolved on fair notice grounds of the Due Process clause of the 14th Amendment, it was not necessary to deal with, what to most of us was the more compelling issue, whether the indecency policy violated the First Amendment.  Finally, the court said that the FCC was “free to modify its current indecency policy in light of its determination of the public interest and applicable requirements.  And it leaves the courts free to review the current policy or any modified policy in light of its content and application.”

If only the Court had narrowed its decision as much as this when it ruled in Citizens United.


Steven J.J. Weisman, a practicing attorney, is a senior partner in the talent management firm Harrison Strategies, LLC. He is also legal editor for TALKERS magazine. He can be e-mailed at:

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Category: Legal