SU Voices: “FCC vs. Fox”

by Roy Gutterman

Curse words and nudity, even fleeting or spontaneous profanity and brief naked bodies may still be off-limits on broadcast television, but the Federal Communications Commission (FCC) needs to issue clearer guidelines and standards with plenty of notice to broadcasters, the US Supreme Court ruled on June 21, 2012.

In one of the more entertaining and even “sexy” cases before the Supreme Court, Federal Communications Commission v. Fox [PDF], the court ruled that the FCC’s guidelines for broadcasting indecent content were issued without fair notice to broadcasters. The case focused on broadcasting indecent content: essentially two curse words broadcast on live television and brief nudity in an episode of the 1990s crime drama, “NYPD Blue.”

Justice Anthony Kennedy’s narrow opinion focused on the nuances of government action: if some behavior is going to be outlawed or punishable, there has to be fair notice to the public. Hence, the 8-0 ruling shot down government action based on fair notice and due process. The opinion went out of its way to avoid ruling on First Amendment grounds. The opinion also went out of its way to use euphemisms and proxies for the offensive words in question.

The decision keeps alive the precedent of FCC v. Pacifica, the 1978 case known for adjudicating George Carlin’s so-called “seven dirty words list.” Pacifica stood for, and still stands for, the government’s authority to regulate broadcast radio and television. For decades, broadcasting has been treated differently from other media such as newspapers, cable television, satellite radio and the internet. This is because airwaves belong to the public, there are a finite number of channels and frequencies and the unwary viewer or listener has limited control regarding unwanted, indecent content.

The changing media landscape and the vast technological differences between the media of the 1970s and the media of the early twenty-first century were embedded in the latest set of arguments in January 2012. So was the First Amendment.

The explosion of cable, satellite and internet-based media, along with blocking technology such as computer software or embedded enhancements like V-chips, in some ways raises substantial questions about the relevance of twentieth-century FCC policy. But according to Justice Kennedy, Pacifica is still good law. Justice Kennedy summarized the Fox opinion with three points:

1. By deciding the case on due process grounds, the First Amendment implications of the FCC policies do not need to be addressed, and the court does not have to overrule Pacifica.

2. The court does not have to address the constitutionality of the controversial FCC policy that created the confusion, the so-called “Golden Globes” order.

3. The court leaves open the opportunity for the FCC to modify its current indecency policy “in light of its determination of the public interest and applicable legal requirements.” The same thing goes for the lower courts.

While noting that the government cannot pass regulations that are vague or without adequate notice to the public, Justice Kennedy focused on due process rather than free speech grounds, writing that clear regulations and standards are “essential to the protections provided by the Due Process Clause of the Fifth Amendment.” But, he also noted:

This case had previously been decided by the Court in April 2009 — also on grounds other than the First Amendment. The 2009 adjudication asked whether the FCC violated the Administrative Procedure Act. The court ruled that the FCC action was not arbitrary or capricious, and sent the case back to the US Court of Appeals for the Second Circuit. The constitutional question was raised before the Second Circuit, which then ruled that the FCC order violated the broadcasters’ First Amendment rights.

The origins of this legal journey began in 2001, when the FCC issued a policy statement for guidelines on interpreting 18 USC § 1464, the federal law criminalizing the broadcast of obscene or indecent language.

The FCC then issued a ruling that for content to be considered indecent on a television broadcast it must pertain to sexual or excretory references and be patently offensive by contemporary community standards. The FCC order went further, explaining that the material must “dwell on or repeat at length” descriptions of sexual or excretory matters. This is where we can all thank Bono. After the Irish band U2’s lead singer received a Golden Globe on live broadcast television, his exuberant acceptance speech was peppered by an unscripted, spontaneous expletive. With Bono’s slip of the tongue, the FCC made nuanced distinctions between “dwelling on” and “fleeting” or isolated utterances, which in turn led to confusion for broadcasters. The FCC’s opinion required a grammarian’s expertise to discern between a legal and illegal use of a spontaneous fleeting expletive.

This proved to be too vague and confusing for broadcasters. Then, Cher cursed at the 2002 Billboard Music Awards and Nicole Richie did the same a year later. Meanwhile, NYPD Blue was in hot water for both profanity and nudity.

In the Court’s majority opinion, Justice Kennedy concluded that the commission’s about-face on indecency standards left Fox and ABC without a clear understanding of what constituted indecency, even a spontaneous or fleeting expletive might have been considered actionable by the FCC.

While foul language was at the heart of the case, especially when it was first argued in 2008, nudity played a bigger role in the arguments and the decision the second time around, particularly because ABC was facing $1.24 million in fines. But the confusion was aptly described by Justice Kennedy, juxtaposing nudity in Schindler’s List, which might have been acceptable under FCC policies, with nudity in NYPD Blue, which might not have been: “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.”

Although the Court issued a clear opinion rooted in due process doctrine, it really offers little guidance for the ultimate question of whether the spontaneous fleeting expletive is indeed indecent or criminal. While Justice Kennedy points out that the commission may choose to issue new guidelines, it seems that he is really asking the commission to issue new guidelines. Thus, the question out there may still be, “Can I say that on television?” The answer will likely lie with the FCC, and possibly the Supreme Court, again.

Roy Gutterman is associate professor and director of the Tully Center for Free Speech at the S.I. Newhouse School of Public Communications.

This piece appeared in JURIST on June 23.