Supreme Court Kicks the Indecency Can Down the Road

Scott R. Flick

Posted June 21, 2012

By Scott R. Flick

In a unanimous decision, the U.S. Supreme Court today ruled that it would like to have as little to do with the FCC's broadcast indecency policy as possible. Rather than the momentous ruling on the constitutional future of broadcast indecency enforcement that advocates on all sides of the issue had hoped for, the mighty sound of the Court punting on the constitutional issue reverberated throughout Washington this morning.

Faced with a pair of Second Circuit decisions finding the FCC's indecency policy to be unconstitutionally vague and therefore chilling to broadcast speech, the Court ruled in an 8-0 vote that the FCC had failed to give adequate notice to Fox and ABC at the time of their assertedly indecent broadcasts that the FCC was going to start finding "fleeting indecencies" (verbal or visual) actionable and therefore subject to fines and other sanctions. As a result, the FCC rulings against both Fox and ABC were overturned by the Court. Having made that decision on the narrow grounds of "lack of notice", the Court concluded that it had no need to go further and delve into the constitutionality of the FCC's indecency enforcement.

On a pragmatic level, the Court's ruling seems to indicate that the appropriate "notice" on fleeting indecencies didn't occur until the FCC announced its decision to begin prosecuting such indecencies in a 2004 case involving NBC and the Golden Globes Awards. As a result, broadcast stations facing indecency complaints (and delayed license renewals) for allegations of fleeting indecency should see those complaints dismissed by the FCC as long as the program at issue aired before the 2004 Golden Globes decision. Unfortunately, stations facing indecency complaints for programs aired after that 2004 decision may find that today's Court ruling is irrelevant to them.

In fact, the Court went out of its way to make clear that it was not ruling on any issue but the "vagueness" in the FCC's treatment of fleeting indecencies caused by the lack of notice of its change in enforcement policy. Despite noting that the FCC's Golden Globes decision amounted to a change in the FCC's indecency policy, the Court wrote that "it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and subsequent adjudications." The decision takes the extra step of stating that "this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaved the courts free to review the current policy or any modified policy in light of its content and application."

The Court's ruling therefore appears to be little more than a "reset" in which, with the limited exception of parties accused of airing fleeting indecency prior to 2004, broadcast stations find themselves in the exact same position as before this litigation started many years ago: unsure as to what content is or is not permissible, and with no additional guidance from the courts as to where the FCC may permissibly draw that line.

While, as I noted in an earlier post, the Supreme Court will usually avoid making a constitutional ruling if it can decide a case on other grounds, the Court's hesitance to step into this fray is striking. Rather than eliminating the chilling effect on First Amendment speech by providing clarity as to what the FCC can constitutionally demand of broadcasters, the Court actually increased the chilling effect. Airing anything that a single member of the public might allege is indecent can lead to:

1. a prolonged indecency investigation by the FCC;

2. withholding of FCC action on a station's license renewal application while the investigation proceeds;

3. withholding of FCC action on any application to sell or transfer that station; and

4. large fines, short-term renewals, and other FCC sanctions.

On top of all that, the Court has now undeniably added another contributor to the chilling effect:

5. years of expensive litigation to demonstrate that the FCC's actions in sanctioning a station for indecency were administratively or constitutionally improper.

With all these chilling factors, only a foolhardy broadcaster would air content that could subject it to this process, even if it knew from the beginning that it would ultimately win in court. That is the very definition of an impermissible chilling effect upon First Amendment speech. The Second Circuit decisions leading to today's decision clearly recognized that impact, and Justice Ginsburg's Concurrence to today's decision recognizes it as well. While agreeing with the Majority that Fox and ABC were not given adequate notice of the FCC's changing indecency standard, her Concurrence goes on to note that Pacifica, the Supreme Court's original 1978 decision upholding the FCC's indecency policy, "was wrong when it issued. Time, technological advances, and the Commission's untenable rulings in the cases now before the Court show why Pacifica bears reconsideration."

Unfortunately, by putting that decision off until another day, the Court leaves the waters of FCC indecency enforcement as murky (and chilling) as ever. Given that the FCC now has a backlog of 1.5 million indecency complaints involving 9700 programs--a backlog that was left pending while the FCC awaited guidance from the Court--the Court's unwillingness in today's decision to engage on the real issue before it is bad for the FCC, bad for broadcasters, and bad for viewers and listeners.

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