Supreme Court #%&!@$ Dodges FCC Television Indecency Rules

[Link: Why the Supreme Court Ruled Unanimously in FCC. v. Fox and What it Means for Broadcasters—Kevin Goldberg - LXBN]

Last week the United Supreme Court ruled against the Federal Communications Commission in FCC v. Fox, a case to do with regulation of indecency in broadcast television. However, the high court ruling doesn’t put the %*&(*&^%$ issue to bed. Here’s why:

“[I]n FCC v. Fox Television Stations Inc., the U.S. Supreme Court struck down the Federal Communications Commission’s effort to apply its indecency standard to brief broadcasts of nudity and ‘fleeting expletives.’ But the Court relied not on the First Amendment’s free-speech guarantees but rather on the Fifth Amendment’s due process clause.

The Court held that Fox and ABC were not given fair advance notice that their broadcasts, which occurred prior to the announcement of the new indecency policy, were covered. This retroactive application violated their due process rights…” (High Court Tosses Out Indecency Cases, Finds FCC Didn’t Give Proper Notice to Broadcasters - Ifrah Law)

In other words:

“The court did not decide the constitutionality of the regulations, which have been challenged in light of changes in the media landscape that broadcasters say have undermined the rationales for limiting their free speech rights…” (U.S. Supreme Court Dodges Issue on Whether Government Has Authority to Regulate Indecency on Broadcast TV - Sedgwick LLP)

Indeed, in its ruling, SCOTUS 

“…declined to address the overall constitutionality of the current indecency policy as revised by the FCC’s 2004 Golden Globes decision on ‘fleeting expletives,’ and it did not address whether the 1978 Supreme Court decision in FCC v. Pacifica Foundation, Inc. is still valid. The Fox decision states that it leaves the FCC free to modify its current indecency policy in light of Fox and “other applicable legal requirements,” and lower courts free to review that or any modified policy based on its content and application.” (Unanimous Supreme Court Invalidates FCC’s “Fleeting Expletives” Indecency Decisions - Davis Wright Tremaine)

The takeaway?

“The opinion concludes by ‘leav[ing] the FCC free to modify its current policy in light of its determination of the public interest’ and ‘leav[ing] the courts free to review the current policy or any modified policy in light of its content and application.’ That, in turn, would seem to give the FCC, at least for now, a green light to apply its ‘fleeting indecency’ policy to broadcast programming and leaves licensees in the position of facing potentially severe sanctions for even the inadvertent broadcast of a single expletive. More immediately, it would appear to endorse fines against broadcasts that occurred after the new policy had been announced…” (FCC Declines To Rule On The Constitutional Validity Of FCC Indecency Regulations - Womble Carlyle)

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