The Federal Communications Commission rightly has a role in policing broadcast content for indecency, according to the Supreme Court, but it also has a responsibility to clearly spell out the rules – and it also cannot establish new rules without fair warning.
The Court said that the FCC failed to provide adequate warning that it was reversing its long-observed fleeting expletive policy, which got Fox off the hook for transgressions aired during live awards programming. In the case of fleeting nudity in an ABC program, it noted that the FCC’s referral to an obscure FCC ruling in a 1960 case was not sufficient warning when a $1M fine was on the table.
Justice Anthony Kennedy authored an opinion that was approved by seven others with Sotomayor abstaining.
Kennedy said Fifth Amendment due process considerations were the pivot in the case. If broadcasters are to follow FCC rules and be vulnerable to possibly severe punishment, the rules must be crystal clear and consistent.
What the Court did not do was strip the FCC of its authority to police indecency. It said:
* First Amendment considerations did not to be addressed as part of this case
* Since the Court settled the two particular incidents on grounds of insufficient notice, the constitutionality of punishing fleeting expletives was still up for consideration – in other words, the FCC is free to provide spell out and provide adequate notice of fleeting expletive and nudity rules, and if it does, the constitutionality of such rules would then be a matter for new litigants in a new court case.
* The FCC is free to modify its rules in light of recent Court proceedings, which would of course then be subject to further judicial review.
Kennedy’s opinion can be viewed here:
RBR-TVBR observation: All in all, we believe this is more or less what broadcasters have been asking for. We don’t believe there is widespread broadcast objection to following some standards of decency – if the objections were prevalent, we’d see a flood of risqué material as soon as safe harbor kicks in at 10PM every night.
What broadcasters want are clear bright-line rules that are enforced consistently.
Crafting such rules in the speech arena, which is one writhing mass of gray area, is tricky to say the least. But that should be the FCC’s new goal. Craft some new rules that are as simple as possible, give broadcasters and other stakeholders adequate time to weigh in and suggest improvements, and then go from there.