WASHINGTON — The Supreme Court ruled Thursday against the Federal Communications Commission’s policy on fleeting expletives over the airwaves, vacating the lower court’s decision on due process and fair notice grounds. It ducked the larger First Amendment issues about regulating broadcast indecency in Fox v. FCC.
The Court took issue with the fact that the FCC did not fully articulate its rule against fleeting expletives until 2004 — after the Fox and ABC incidents at issue. “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required,” Justice Anthony Kennedy wrote for the seven-justice majority
“[T]he 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,” he continued. Accordingly, the FCC violated the broadcasters’ rights to due process under the Fifth Amendment — an issue that was a mere afterthought during the case’s briefing and oral argument.
Kennedy’s majority opinion was joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Stephen Breyer, Samuel Alito and Elena Kagan. Justice Ruth Bader Ginsburg concurred in the judgment. Justice Sonia Sotomayor did not participate in the case, which came up from the U.S. Court of Appeals for the 2nd Circuit, her prior bench.
FCC v. Fox concerned several hefty fines leveled against Fox and ABC in the middle of the last decade, after Cher and Nicole Richie each let fly a dirty word on live television and “NYPD Blue” showed seven seconds of bare buttocks. Although the Supreme Court had endorsed the FCC’s authority to regulate broadcast indecency over 30 years ago, the commission officially started punishing censors’ specific failures to hit the bleep button during President George W. Bush’s first term.
This is the case’s second trip to the Supreme Court in three years.
Initially, Fox and ABC fought their fines by attacking the rule change as unlawfully arbitrary, but the justices rejected that argument in 2009, with the conservatives prevailing on a 5-4 vote. This time, the networks argued that the FCC had violated the First Amendment, contending that the rule chilled protected speech by coupling threats of crippling fines with inadequate guidance on how to comply.
ABC and Fox also went after the broadcast indecency regime itself, maintaining that it has been fatally undermined by the rise of widely accessible cable, satellite and Internet television — all beyond the FCC’s regulatory reach — and the availability of parental controls technology to protect children without the need for governmental intervention.
Justice Ginsburg wrote separately to say that she would have struck the rule down on free speech grounds. “Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why” the FCC’s broadcast indecency regime “bears reconsideration,” she wrote.
Ginsburg’s separate opinion tracked the previously expressed views of Justice Thomas, who wrote in the 2009 case that the “text of the First Amendment makes no distinctions among print, broadcast, and cable media.” Curiously, Thomas — who commonly writes separate opinions to state his distinct views on the law — did not join her this time around.
Thursday’s decision leaves for a future term and a fully-staffed Court the justices’ final judgment on FCC’s fleeting expletives rule — perhaps in a case coming up from the 3rd Circuit over Janet Jackson’s infamous “wardrobe malfunction” during her 2004 Super Bowl halftime performance.
