High Court Slams FCC for Lack of|’Indecency’ Notice to Broadcasters

(CN) - The Federal Communications Commission did not give television networks proper notice of a new policy that would result in heavy fines for "fleeting expletives," the Supreme Court ruled Thursday, finally resolving cases in which Cher and Nicole Richie dropped F-bombs at the Billboard Music Awards, and a woman's naked butt appeared on "NYPD Blue."

Cher brought regulatory wrath upon Fox Television Stations while accepting a Billboard award in 2002. She said: "People have been telling me I'm on my way out every year, right? So fuck 'em."

At the same award show the following year, the FCC took issue with what it called the "explicit, graphic, vulgar, and shocking nature" of comments Nicole Richie made while talking about "The Simple Life," her reality show co-starring Paris Hilton.

"Have you ever tried to get cow shit out of a Prada purse," Richie asked. "It's not so fucking simple."

Though the Supreme Court describes Cher as "the singer" in its decision Thursday, it makes a telling remark in describing Lionel Richie's daughter as "a person named Nicole Richie."

ABC had to answer for the indecency complaints that arose from a 2003 episode of "NYPD Blue," in which the camera lingered for seven seconds on a woman's nude buttocks, and then momentarily showed the side of her breast.

By 2004, the commission still had not notified Fox and ABC about apparent liability over those incidents. It did not give such notice until after it decided that NBC deserved sanctions for remarks U2 front man Bono made at the 2003 Golden Globe Awards.

While receiving the award for best original song, Bono said: "This is really, really, fucking brilliant. Really, really great."

The Golden Globes order declared for the first time that fleeting expletives could be ac­tionable. But even though this order came after the Billboard and "NYPD Blue" incidents, the FCC applied its new standard against Fox and ABC.

Though the Supreme Court agreed in 2009 that the FCC had the right to modify its policy, it declined to look at the new policy's constitutionality until a federal appeals court had done so.

The case returned to the Supreme Court this term because the 2nd Circuit struck the policy down as unconstitutional in 2010.

But the high court again declined to look at the policy's constitutionality on Thursday because it found that the FCC had failed to properly notify broadcasters about the fleeting expletives policy before it put the policy into action.

"The commission's lack of notice to Fox and ABC that its interpretation had changed so the fleeting moments of indecency contained in their broadcasts were a violation of §1464 as interpreted and enforced by the agency 'fail[ed] to provide a person of ordinary intelligence fair notice of what is prohibited,'" according to the lead opinion authored by Justice Anthony Kennedy. "This would be true with respect to a regulatory change this abrupt on any subject, but it is surely the case when applied to the regulations in question, regulations that touch upon 'sensitive areas of basic First Amendment freedoms.'"

Section 1464 provides that "whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined ... or imprisoned not more than two years, or both." The FCC enforces the rule between 6 a.m. and 10 p.m.

"Given that the commission found it was 'not inequitable to hold Fox responsible for [the 2003 broadcast],' and that it has the statutory authority to use its finding to increase any future penalties, the government's assurance it will elect not to do so is insufficient to remedy the constitutional violation."

The justices noted that the FCC's actions injure the networks' reputations.

"Commission sanctions on broadcasters for indecent material are widely publicized," the decision states. "The challenged orders could have an adverse impact on Fox's reputation that audiences and advertisers alike are entitled to take into account."

In defending the $1.24 million fined levied over the "NYPD Blue" infraction, the government pointed to a 1960 FCC decision that said "televising of nudes might well raise a serious question of programming contrary to 18 U.S.C. §1464."

But Kennedy found that "this argument does not prevail."

"An isolated and ambiguous statement from a 1960 commission decision does not suffice for the fair notice required when the government intends to impose over a $1 million fine for allegedly impermissible speech," the decision states. "The commission, furthermore, had released decisions before sanctioning ABC that declined to find isolated and brief moments of nudity actionably indecent."

Taking pains to note that the material is not "the same," the court nevertheless pointed out that the networks have aired a graphic scene from "Schindler's List" involving nude concentration camp prisoners.

"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," Kennedy wrote. "Therefore, the commission's standards as applied to these broadcasts were vague, and the commission's orders must be set aside."

The justices noted that their decision does not address the constitutionality of the new policy, vacating the 2nd Circuit decision that deemed it unconstitutional.

Justice Sonia Sotomayor took no part in the consideration or decision of the cases.

Justice Ruth Bader Ginsburg alone did not join in the court's opinion. She noted in a concurring opinion that that the time has come for the justices to reconsider its 1978 holding in FCC v. Pacifica Foundation, which she said "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," Ginsburg wrote.

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