Fox, ABC Won't Be Fined for Expletives, Nudity, Court Rules


Published: Thursday, June 21, 2012 at 3:24 p.m.
Last Modified: Thursday, June 21, 2012 at 3:24 p.m.

WASHINGTON | The Supreme Court on Thursday declined to address whether the government still had the authority to regulate indecency on broadcast television but excused two broadcasters from potential fines for several past violations of rules against cursing and nudity.

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.

The case, Federal Communications Commission v. Fox Television Stations, No. 10-1293, arose from the broadcast of fleeting expletives by celebrities on awards shows on Fox and partial nudity on the police drama “NYPD Blue” on ABC. Justice Anthony M. Kennedy, writing for seven justices, said the commission had changed the rules in the middle of the game.

“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.

That left the larger free speech questions unresolved.

“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,” Kennedy wrote. “And it leaves the courts free to review the current policy or any modified policy in light of its content and application.”

Justice Sonia Sotomayor recused herself from the case.

Only Justice Ruth Bader Ginsburg, who voted with the majority but did not join its reasoning, was prepared to address the First Amendment issues raised by changes in the world of broadcasting and related media since 1978, when the Supreme Court decided the leading case in this area, Federal Communications Commission v. Pacifica.

That decision said the government could restrict George Carlin's famous “seven dirty words” monologue, which had been broadcast on the radio in the afternoon. The court relied on what it called the uniquely pervasive nature of broadcast media and its unique accessibility to children.

Both points are open to question given the rise of cable television and the Internet.

“In my view,” Ginsburg wrote, the Pacifica decision was wrong when it was issued. “Time, technological advances, and the commission's untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.”

In remarks before the American Constitution Society last week, Ginsburg discussed the case, which involved televised banter between Nicole Richie and Paris Hilton, and she suggested wryly that there were gaps in the justices' knowledge of popular culture.

“The Paris Hiltons of this world, my law clerks told me, eagerly await this decision,” she said of the case decided Thursday. “It is beyond my comprehension, I told my clerks, how the FCC can claim jurisdiction to ban words spoken in a hotel on French soil.”

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