U.S. Supreme Court Strikes Down FCC’s Indecency Determinations Against Fox And ABC

George Carlin’s comedy routine about the seven words that can’t be said on television is (to me at least) as funny today as it was decades ago, and, indeed, is still relevant. Carlin has a gift for humorous social commentary. Here’s how he introduces his seven-dirty words schtick:

I love words. I thank you for hearing my words. I want to tell you something about words that I uh, I think is important. I love..as I say, they’re my work, they’re my play, they’re my passion. Words are all we have really.

We have thoughts, but thoughts are fluid. You know, [humming]. And, then we assign a word to a thought, [clicks tongue]. And we’re stuck with that word for that thought. So be careful with words. I like to think, yeah, the same words that hurt can heal. It’s a matter of how you pick them.

There are some people that aren’t into all the words. There are some people who would have you not use certain words. Yeah, there are 400,000 words in the English language, and there are seven of them that you can’t say on television. What a ratio that is. 399,993 to seven. They must really be bad. They’d have to be outrageous, to be separated from a group that large. All of you over here, you seven. Bad words. That’s what they told us they were, remember? ‘That’s a bad word.’ ‘Awwww.’ There are no bad words. Bad thoughts. Bad Intentions.

The FCC begs to differ. For decades, the FCC has enforced decency standards on public airwaves between the hours of 6 AM and 10 PM under federal law, 18 U.S.C. Section 1464. The FCC has promulgated regulations defining what constitutes indecent material, including profanity and nudity.

George Carlin does figure into this story because his “seven dirty words” routine was at issue in the seminal United States Supreme Court opinion in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In Pacifica, the Supreme Court upheld the FCC’s ruling that Carlin’s routine was indecent against constitutional challenge.

Fast forward to 2012. Just last week, the Supreme Court overturned the FCC’s enforcement actions against the Fox and ABC broadcasting networks for broadcasting indecent material in violation of federal law. The opinion in FCC v. Fox Television Stations, Inc., et al. is available here. The case addressed FCC enforcement action stemming from Fox’s broadcast of the Billboard Music Awards in 2002 and 2003. Cher, an award recipient in 2002, and Nicole Richie, a presenter in 2003, apparently didn’t get the memo, or chose to disregard it, and spontaneously used the “king” of the seven forbidden words, the f-bomb. Unlike George Carlin fans everywhere, the FCC was not amused and cited Fox for violating decency standards, although it imposed no fine.

The case against ABC involved a brief segment in a 2003 episode of NYPD Blue that showed the nude buttocks of an adult female character for about seven seconds and an even shorter view of the side of her breast. Unlike with Fox, the FCC imposed a forfeiture against ABC totaling nearly $1.24 million.

In a rare 8-0 unanimous decision (Justice Sotomayer did not participate) in the habitually fractured US Supreme Court, the Court invalidated the FCC’s actions against Fox and ABC as a violation of constitutional Due Process. The Court examined the history of FCC regulation of indecency, specifically its earlier announced guidelines making “whether the material dwelled on or repeated at length the offending description or depiction” a key consideration in determining indecency. Opinion, p. 13. The Court reasoned:

[The FCC’s] regulatory history . . . makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent; yet Fox and ABC were found to be in violation. 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 failed to provide a person of ordinary intelligence fair notice of what is prohibited. 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.

Opinion, p. 13 (citations and quotations omitted).

The Court noted that its decision was based on the Due Process Clause, not the First Amendment. Nonetheless, the Court pointed out repeatedly that the void for vagueness doctrine must be rigorously applied when speech is involved lest ambiguity chill protected expression. Opinion, p. 12, 13.

So where does this leave the FCC’s new policy of fleeting, momentary and spontaneous indecency in future cases? You got it: up in the air. The Court’s opinion concludes thusly:

Here, the Court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in . . . subsequent adjudications. The Court adheres to its normal practice of declining to decide cases not before it.

Opinion, p. 17. In other words, stay tuned.

About Bose McKinney & Evans LLP

Bose McKinney & Evans LLP is a business law firm, headquartered in Indianapolis, Indiana, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Our clients include Fortune 100 companies, international manufacturers, national and regional financial institutions, agribusinesses, sports teams, university-incubated start-ups, media, utilities, cities and schools, to name a few. We strive to build strong relationships with our clients as key business advisors, to exceed expectations in the quality of our work, to be knowledgeable about our clients’ businesses and sectors, to be responsive to service needs and to continually seek to improve the delivery of client services. Our ultimate focus is on our clients.
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