Supreme Court Throws Out ‘Fleeting’ Fines

WASHINGTON (AP) — The Supreme Court on Thursday unanimously threw out fines and other penalties against broadcast companies that violated the Federal Communications Commission policy regulating curse words and nudity on television airwaves.

But the justices declined to issue a broad ruling on the constitutionality of the FCC’s indecency policy. Instead, the court concluded only that broadcasters could not have known in advance that obscenities uttered during awards show programs and a brief display of nudity on an episode of ABC’s “NYPD Blue” could give rise to penalties. ABC and 45 affiliates were hit with proposed fines totaling nearly $1.24 million.

The justices said the FCC is free to revise its indecency policy, which is intended to keep the airwaves free of objectionable material during the hours when children are likely to be watching.

The agency’s chairman, Julius Genachowski, said the ruling “appears to be narrowly limited to procedural issues related to actions taken a number of years ago. Consistent with vital First Amendment principles, the FCC will carry out Congress’s directive to protect young TV viewers.”

It was the second time the court has confronted, but not ruled conclusively on the FCC’s policy on isolated expletives. Justice Anthony Kennedy said in his opinion for the court that “it is unnecessary for the court to address the constitutionality of the current policy.”

The narrow decision, coupled with the more than five months that elapsed between the argument in January and Thursday’s decision, could mean that the justices struggled and failed to reach agreement on a broader outcome.

Paul Smith, a First Amendment expert and partner with the Jenner and Block law firm in Washington, said the court should expect more challenges until it rules definitively.

“The Supreme Court decided to punt on the opportunity to issue a broad ruling on the constitutionality of the FCC indecency policy. The issue will be raised again as broadcasters will continue to try to grapple with the FCC’s vague and inconsistent enforcement regime,” said Smith, who wrote a brief supporting the broadcasters.

The case arose from a change in the FCC’s long-standing policy on curse words.

For many years, the agency did not take action against broadcasters for one-time uses of curse words. But after several awards shows with cursing celebrities in 2002 and 2003, the FCC toughened its policy after it concluded that a one-free-expletive rule did not make sense in the context of keeping the airwaves free of indecency when children are likely to be watching television.

But Kennedy said the commission did not adequately explain that under the new policy “a fleeting expletive or a brief shot of nudity could be actionably indecent.”

The stepped-up indecency enforcement, including issuing record fines for violations, also was spurred in part by widespread public outrage following Janet Jackson’s breast-baring performance during the 2004 Super Bowl halftime show on CBS.

That incident and the FCC’s proposed fine of $550,000 are not part of the current case. The government has an appeal pending of a lower court ruling that threw out the fine in that case.

But the 2004 Super Bowl also took place before the FCC later that year laid out its new policy and the possibility of fines for even one-time utterances of certain words.

NAB Executive Vice President of Communications Dennis Wharton commented on the decision: “NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content. We don’t believe that broadcast programming will change as a result of today’s decision, given the expectation from viewers, listeners and advertisers that our programming will be less explicit than pay-media platform providers. As broadcasters, we will continue to offer programming reflective of the diverse communities we serve, along with program blocking technologies like the V-chip that empower parents in monitoring media consumption habits of children.”

And Andrew Jay Schwartzman, counsel of record for the Center for Creative Voices and the Future of Music Coalition, said: “The court’s decision quite correctly faults the FCC for its failure to give effective guidance to broadcasters. Its lack of precision has been a particular problem for writers and others in the creators’ community, as well as small broadcasters. It is, however, unfortunate that the Justices ducked the core First Amendment issues. The resulting uncertainty will continue to chill artistic expression.”

Tim Winter, president of the Parents Television Council, said he read the ruling as a “green light” for the FCC to rule against broadcasters in the many pending complaints of indecent material that aired after the FCC explained its new policy. “Once again the Supreme Court has ruled against the networks in their yearslong campaign to obliterate broadcast decency standards,” Winter said.

John Bergmayer, senior staff attorney at Public Knowledge, commented: “We’re happy that the Supreme Court struck down the illegal fines against Fox and ABC. The court has held that the FCC cannot hold broadcasters to overly vague standards about what is and is not allowed on the air. This is the right result, although the court did not address whether the indecency rules violate the First Amendment. In this case, our primary concern was free expression, not administrative procedure. We have been, and still are, concerned with the First Amendment problems caused by the FCC’s current indecency rules. But those problems will have to be addressed another time.”

The material at issue in Thursday’s decision includes the isolated use of expletives as well as fines against broadcasters who showed a woman’s nude buttocks on a 2003 episode of the show “NYPD Blue.”

In December 2002, singer Cher used the phrase “F— ’em” during the Billboard Music Awards show on the Fox television network. A month later, U2 lead singer Bono uttered the phrase “f—— brilliant” during NBC’s broadcast of the Golden Globes awards show. During the December 2003 Billboard awards show on Fox, reality show star Nicole Richie said, “Have you ever tried to get cow s— out of a Prada purse? It’s not so f——simple.”

But the challenge went beyond just the penalties for the use of fleeting expletives.

The broadcasters wanted the court to free them from all regulation of content around the clock. The court’s 1978 Pacifica decision upheld the FCC’s reprimand of a New York radio station for airing a George Carlin monologue containing a 12-minute string of expletives in the middle of the afternoon.

The broadcasters argued that the revolution in technology that has brought the Internet, satellite television and cable makes even the old rules obsolete. The regulations only apply to broadcast channels.

Viewers have so many options, unlike the handful of channels they had available in the 1960s and 1970s, when the court last weighed in on indecency on the airwaves. In many cases, viewers don’t even know when they are switching between the older broadcast channels and cable.

Still, the regulated broadcast channels provide what the government has called a safe haven of milder programming, and those channels remain dominant, even in the Internet age, the administration said.

Justice Ruth Bader Ginsburg said in a brief opinion that she would have overturned the Pacifica ruling, which she called wrong even when it was decided. Justice Sonia Sotomayor did not take part in the case because she was involved in an earlier version while sitting as an appeals court judge in New York.

The case is FCC v. Fox, 10-1293.

AP Technology Writer Peter Svensson in New York contributed to this report.