Supreme Court Tossing ABC, Fox Indecency Actions Turns Focus Back on FCC

Lawmakers largely supported the decision, and some said it leaves unanswered questions that future legislation should resolve.

The eight justices who ruled acknowledged sidestepping other constitutional issues. That averts the prospect of an evenly split decision that would have upheld an appellate court’s ruling (CD July 14 p1) against a fleeting indecency policy, industry and unaligned lawyers said. They said the agency must now decide how to handle a backlog of more than a million indecency complaints, and whether to issue new industry guidance updating a 2004 commission order that a single use of “fucking” by Bono on NBC’s Golden Globe Awards was indecent.

"It is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and subsequent adjudications,” Justice Anthony Kennedy wrote for all his colleagues except Sonia Sotomayor, who sat out the case, and Ruth Bader Ginsburg, who concurred. “The Court adheres to its normal practice of declining to decide cases not before it.” Oral argument in January didn’t much touch on the court’s landmark 1978 Pacifica indecency ruling. That ruling “was wrong when it issued,” said a concurrence Thursday by Bader Ginsburg: “Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.”

Kennedy’s opinion said Pacifica didn’t need to be considered in the ABC/Fox case because the “Court resolves these cases on fair notice grounds under the Due Process Clause.” Under that clause, the court said the FCC didn’t put ABC and Fox on notice that decades of previous commission precedent of not censuring fleeting instances of what could be considered indecent no longer held. The 2004 Golden Globes order was “issued after the broadcasts” of celebrity cursing on Fox’s Billboard Music Awards in the previous two years and brief showing of nudity on ABC’s NYPD Blue in 2003, Kennedy wrote (http://bit.ly/MmFCDr): “The Commission changed course and held that fleeting expletives could be a statutory violation."

The FCC got room to change its policies in the ruling. Some commissioners and others said they hope it will spur the agency to wind down a backlog of what by some estimates are 1.5 million individual complaints. “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 and leaves courts free to review the current, or any modified, policy in light of its content and application,” Kennedy wrote. “Because 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, the Commission’s standards as applied to these broadcasts were vague.” Although the decision didn’t consider Pacifica or the First Amendment much, it did say clear regulatory guidance was important in the case because it involved speech.

"Regulated parties should know what is required of them so they may act accordingly; and precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way,” Kennedy wrote. “When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.” 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,” he also wrote. Given the “regulatory history” on indecency, it’s “apparent that the 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; yet Fox and ABC were found to be in violation,” the jurist wrote. That lack of notice “'fail(ed) to provide a person of ordinary intelligence fair notice of what is prohibited,'” he wrote, citing U.S. v. Williams in 2008. “This would be true with respect to a regulatory change this abrupt on any subject, but it is surely the case when applied to the regulations in question, regulations that touch upon ’sensitive areas of basic First Amendment freedoms,'” he continued, citing cases from 1964 and 1997.

The upshot for broadcasters is they lack further regulatory or judicial guidance on whether content that’s not meant to titillate and doesn’t dwell on sex organs or activities yet includes cursing or nudity is considered by the government to be indecent, industry and unaligned lawyers agreed. They said the commission doesn’t seem poised to immediately wade back into the indecency fray by issuing general guidelines on what’s acceptable and what’s not, and if not, uncertainty would prevail until another indecency case reaches the high court. The ruling on FCC v. Fox/ABC, called Fox II, comes after in 2009 the Supreme Court (CD April 29/09 p1) said in Fox I the censure of that network for airing unscripted curses by Cher in 2002 and Nicole Richie the next year on the Billboard Music Awards didn’t violate the Administrative Procedure Act.

The government’s arguments for its case weren’t “persuassive,” because even when the commission censures without fining a broadcaster it can have reputational damage, while a fine of $27,500 to each of 45 ABC stations that aired the NYPD Blue episode is significant, Kennedy wrote. “The Commission has the statutory power to take into account ‘any history of prior offenses’ when setting a forfeiture penalty, and the due process protection against vague regulations ‘does not leave (regulated parties) ... at the mercy of noblesse oblige,'” he wrote, citing U.S. v. Stevens in 2010. “The challenged orders could also have an adverse impact on Fox’s reputation with audiences and advertisers alike,” the opinion said. “Commission sanctions on broadcasters for indecent material are widely publicized.” An “isolated and ambiguous statement” from a 1960 enbanc programming decision that televising nudes might be problematic “does not suffice for the fair notice required when the Government intends to impose over a $1 million fine for allegedly impermissible speech,” Kennedy wrote.

The agency is “reviewing” the decision, “which appears to be narrowly limited to procedural issues related to actions taken a number of years ago,” Chairman Julius Genachowski said (http://bit.ly/MNNSIm). “Consistent with vital First Amendment principles, the FCC will carry out Congress’s directive to protect young TV viewers.” ABC said it’s “pleased” with the ruling.

Fox views the ruling as having “recognized that the case has significant First Amendment implications that require notice to be clearer,” a network spokesman said. “The broader First Amendment issues concerning the FCC’s authority to regulate the content of speech” which went unaddressed in the ruling “remain for future litigation depending on what regulatory approach the FCC takes to these broadcasts in the future,” he said. “We have always believed that the government must tread carefully with regard to matters implicating speech, and we hope in the future broadcasters will have the ability to rely on a governmental review process that takes careful account of the important Constitutional principles at stake."

Split Opinion Averted?

The narrow decision averted the possibility that the court would have ruled 4-4 on First Amendment grounds, which would have meant the 2nd Circuit’s ruling would have been effectively upheld, constitutional scholars and industry lawyers said. Some saw such a ruling likely if the court would have addressed free speech. Industry lawyers were upset the ruling wasn’t more wide-ranging and didn’t address the First Amendment, given the court specifically sought briefs on the First and Fifth Amendment implications of the case. It’s rare for that to happen, said constitutional lawyer Kevin Goldberg of Fletcher Heald. “The court is always looking for a narrow way to do things,” he said. “Sadly though I think it means well be right back here four years from now."

"This is the Supreme Court pussyfooting around,” said radio lawyer John Garziglia of Womble Carlyle. “Its indefensible for the Supreme Court not to take up this issue and resolve it once and for all.” With Sotomayor, a former 2nd Circuit judge, sitting out the case, it’s possible the court would have split equally if the First Amendment were addressed, said communications lawyer Andrew Schwartzman, counsel to a few artists’ groups in the case. The ruling at hand “found something that everybody could agree on, which was that the commission’s notification procedures” weren’t acceptable, he said. “With the benefit of hindsight, it’s a very logical way to address the question.” It may be “satisfying to the court, in that it gets results, and it doesn’t set a significant precedent of any kind,” he said: It’s “a very unsatisfying result” for artists, broadcasters -- “and the commission."

George Washington University indecency expert Jerome Barron thinks justices aren’t ready to call Pacifica outdated, but didn’t want to explicity state that, he said. “I think many on the court were not unhappy with the FCC’s indecency policy,” he said. “It’s an interesting case in what they didn’t say.” There seems to have been “no appetite on the court in seeing over-the-air broadcasting mimic late-night cable, at least the non-basic channels, and I think that had a lot to do with the opinion,” the constitutional law professor said. “They weren’t ready ... to say ‘anything goes’ on broadcasting."

The FCC “must expeditiously implement the Court’s decision to put an end to years of litigation and uncertainty regarding the Commission’s regulation of indecent content on America’s airwaves,” Commissioner Robert McDowell said in a written statement (http://bit.ly/L9cc76). “As a matter of good governance, it is now time for the FCC to get back to work so that we can process the backlog of pending indecency complaints -- which currently stands at just under 1.5 million involving about 9,700 TV broadcasts. Some of these complaints date back to 2003.” There are more than 300 pending license renewal applications which he also hopes will be resolved. The “narrow decision” doesn’t “call into question the Commission’s overall indecency enforcement authority or the constitutionality of the Commission’s current indecency policy,” Commissioner Ajit Pai said. “Rather, it highlights the need for the Commission to make its policy clear. ... The best way for us to proceed is to get to work resolving the multitude of indecency complaints that have piled up during this litigation.” Commissioner Mignon Clyburn said “we must be mindful of the rights guaranteed under the First Amendment” in addressing the issue. Commissioner Jessica Rosenworcel said she'll work with her colleagues so parents can protect kids from “harmful content and that the agency faithfully implements its authority under the law."

Rep. Lee Terry, R-Neb., is curious to know what will happen with the backlog of indecency complaints. “I think a lot of them fall into the inadvertent [category], but there are others that were very intentional and planned and that’s what’s going to be up in the air,” he said in an interview. “Probably another Supreme Court decision to further clarify.” It’s too soon to say whether indecency provisions should be incorporated into any potential rewrite of the 1996 Telecom Act, Terry said. “There has been some cooler talk about opening up the ‘96 Act, but nothing significant like we're saying we're going to do it or let’s set a pathway to check in to it. Opening the ‘96 Act hasn’t been decided, but there have been zero discussions about the indecency aspect."

Capitol Hill Reaction

Terry was surprised by the decision, he told us. “I think there is a need” for a new indecency law, “but my question is after this decision is there even a way to write that?” he said. “You would think that saying you can’t use the F-word is specific, it’s not ambiguous. But if the [opinion] says that’s too ambiguous, there is no way we can regulate violence on networks.” It was surprising to broadcast lawyer and indecency expert Peter Gutmann of Womble Carlyle that the Supreme Court sought briefs on the constitutional elements of the 2nd Circuit’s ruling and then didn’t itself rule on them, he said. It seems “to give the FCC, at least for now, a green light to apply its ‘fleeting indecency’ policy to broadcast programming and leaves licensees in the position of facing potentially severe sanctions for even the inadvertent broadcast of a single expletive,” Gutmann said. “It would appear to endorse fines against broadcasts that occurred after the new policy had been announced."

Indecency foe Parents Television Counsel wants the backlog ended, given “Pacifica is still good law,” said President Tim Winter. “The ‘notice’ requirement, which allowed Fox and ABC to slip off the hook in these two cases at issue today, has already been satisfied for all the pending complaints.” He said the court ruled against networks “in their years-long campaign to obliterate broadcast decency standards.” Comcast’s NBCUniversal is pleased the court “emphasized the need for clear rules that broadcasters can understand,” though the commission is “left with an indecency regime which” the 2nd Circuit “found to be unconstitutional,” the network said. “We look forward to participating in the development of a regulatory framework that meets constitutional requirements, and benefits viewers."

Broadcasters and their lawyers said content won’t change because of the ruling, something they said before the decision as well. There’s an “expectation from viewers, listeners and advertisers that our programming will be less explicit than pay-media platform providers,” an NAB spokesman said. “You never see nudity on the broadcast airwaves or hear Sopranos-like language during Leno and Letterman.” The “practical impact” of the decision is “less dramatic than it may appear,” the spokesman said. Though the decision “really is chilling” to broadcasters, most already “operate under their own set of content guidelines that’s forced all programming that one would regard as being indecent from being run in the first instance,” said Garziglia.

Senate Commerce Committee Chairman Jay Rockefeller, D-W.Va., supported the decision, which he said leaves in place the FCC’s authority to protect kids from indecent programming. It’s a “victory for those of us who believe that we must be doing more, not less, to give the FCC and parents all across America the resources they need to protect their children from indecent programming,” he said. Sen. Jim DeMint, R-S.C., said the court “rightly chided the FCC for freelancing on issues at their whim.” The agency “should stop over-regulating -- whether television, Internet, or wireless service -- beyond” its “clear Congressional mandate,” he said.

For House Commerce Committee Chairman Fred Upton, R-Mich., a larger underlying issue remains: “The importance of protecting both our Constitution and our families and communities,” he said. “I would remind executives in New York and Hollywood that they should act responsibly when it comes to the entertainment they are sending, via the public’s airwaves, into family rooms across the country.” The MPAA, with a preference “for self-regulation,” is happy the high court “recognized that any rules regulating broadcast indecency must provide clarity and fair notice” about what can be aired, said Global General Counsel Henry Hoberman. “Vague rules that leave broadcasters guessing as to the legality of their programming chill legitimate speech, depriving viewers of the content they could otherwise enjoy."

The ruling highlights the need for the FCC to “conduct its business through a more transparent and orderly process, allowing for better input and decision-making,” said House Communications Subcommittee Chairman Greg Walden, R-Ore. “How much longer can we allow bad process to produce bad results? The time is now for reform, such as those included in the FCC Reform Act. In the meantime, today’s ruling reinforces the responsibility of broadcasters to represent their communities. Most of them know and do the right thing.”

Industry Concerns

Broadcast lawyers said they're eagerly awaiting the FCC’s guidance. They said the backlog of complaints has risen -- and with it the number of tolling agreements for licensees -- as the commission hasn’t made indecency rulings in recent years while receiving new allegations of unacceptable content. Tolling agreements from the Enforcement Bureau let radio and TV stations get licenses renewed, often so the broadcasters can be sold, while the licensees agree to extend the five-year statute of limitations on indecency complaints, industry officials said.

License renewals have been delayed by pending indecency complaints, noted Schwartzman. “You can’t sit on these renewal applications forever.” But “nobody” at the FCC “is looking forward to figuring out what to do with all the cases in the pipeline,” he said. “Something is going to make its way back to court, one way or the other. So it leaves the commission with a mess on its hands.” The agency “certainly should do something” by way of giving guidance on what’s indecent, “because there are many renewals held up because of it,” Garziglia said. “They can say `well we've now announced that the fleeting use of an F-word is indecent and seven seconds of a bare buttocks'” is, too, he said. “It’s a problem for them procedurally to go through the million complaints they have and make decisions on them.” Seven seconds was the amount of time a female actor’s buttocks were shown on the NYPD Blue episode, which also aired the “side of her breast for a moment,” the ruling said.

Until the FCC gives “proper” guidance under the Fifth Amendment due process clause “deemed so important by the Supreme Court, perhaps under a new rulemaking proceeding, broadcasters are still left with an extremely vague standard to consider when speech or visual depictions would be deemed to be indecent,” said radio and TV lawyer Gregg Skall of Womble Carlyle. “It is not clear that the examples that now went to the Supreme Court, in the Fox and ABC cases, provide that guidance or whether the commission will have to issue new, more specific guidance and offer broadcasters an opportunity to participate with comments in rulemaking.” The ruling leaves “broadcasters again to ’twist slowly in the wind,'” Skall said. “This question of what is indecent, or even whether indecency regulation remains constitutional, is left an unfinished work and what is permissible First Amendment limit of broadcasting under the indecency standard, or whether the indecency standard remains undecided.”

It’s likely the issue of whether Pacifica remains valid now or whether finding an isolated curse or brief instance of nudity to be indecent squares with the First Amendment will be decided in a future case by the Supreme Court, broadcast lawyers and those aligned with the industry said. The ruling “leaves for another day, and for another brave broadcaster, to challenge the question of whether or not the First Amendment prohibits FCC regulation of the type of language at issue in the Fox cases or the type of visuals at issue in the ABC case,” said Skall. Until there’s another high court ruling on indecency, “there will be several years of uncertainty” about what’s acceptable on-air, Schwartzman predicted: “Uncertainty is worse than even a decision upholding” the FCC’s fleeting indecency policy, “since you have some idea of what the permissible limits are.”