Television watchers and morality monitors will have to wait a couple more years before they know whether the Constitution’s First Amendment allows the government to punish broadcasters for airing four-letter profanity and brief images of nudity.
What the court did decide, though, was that the Federal Communications Commission failed to give broadcasters advance notice that, thereafter, it was going to forbid even the single use of the “F-word” and the “S-word” or a single brief but sexually explicit image of a nude body.
That violated the Constitution’s guarantee of due process to Fox Television and ABC-TV, the court concluded in a unanimous opinion.
One justice, Sonia Sotomayor, didn’t take part in the ruling. Another, Ruth Bader Ginsburg, signaled that, at some point, she wants the court to go back and reconsider a key 34-year-old precedent that launched the FCC on regulating broadcast “indecency.”
The case had been closely watched with the prospect of a decisive First Amendment ruling after years of legal uncertainty in the broadcast entertainment industry. And the fact that the court still had not decided the case more than five months after a hearing on it had left the impression that a major constitutional judgment would be made on the FCC’s policy.
But the final opinion that did emerge, written by Justice Anthony M. Kennedy, used only a little more than five pages to describe what was decided, and added another page to say what had not been resolved–including the power of the FCC even to enforce an anti-indecency policy on TV and radio.
On the due process issue, the court was explicit: “A fundamental principle of our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.”
The FCC, the court found, had not spelled out what was forbidden at the time it took action against Fox TV for music awards broadcasts during which performers had used either the “F-word” or the “S-word,” or variations of them, and against ABC-TV for the images of a nude woman’s buttocks during a broadcast of the crime show, NYPD Blue. (Justice Kennedy’s opinion avoided spelling out those words, using asterisks to delete all but the first letter.)
A government policy that fails to warn of its actual scope, the court said, must be struck down as unconstitutionally vague, under the due process clause.
“Regulated parties,” it added, “should know what is required of them so they may act accordingly.” What FCC did in the cases of Fox TV and ABC-TV, the opinion noted, was to apply a 2004 flat ban on fleeting “expletives” and nudity to broadcasts that had occurred prior to 2004.
The FCC did not levy a fine on Fox TV for its broadcasts, but the court said that made no difference; being labeled a violator of government indecency policy has negative consequences even without a fine, Kennedy wrote. The FCC did impose hefty fines on ABC-TV: $27,500 on each of 45 individual stations.
At the end of his opinion for the court, Justice Kennedy spelled out four limitations on the decision: it was not deciding how FCC’s indecency policy would fare if judged directly under the First Amendment free speech clause; it was not deciding whether the FCC’s 2004 announcement of its policy change was valid; it was not barring the FCC from changing its current policy; and it was leaving the courts free to judge the constitutionality of the current policy or any changes FCC might make in it.
While the decision didn’t direct the FCC to reconsider its policy, the difficulties that the policy has faced in lengthy court proceedings–spelled out in the opinion’s recounting of the history of the policy–might be a cautionary note that a change may be in order, or at least a stronger justification might be attempted.
Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.
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