Supreme Court to decide constitutionality of broadcast indecency rules in FCC v. Fox

A case that began with a musician’s excited utterance upon winning a Golden Globe Award has the potential to drastically change how indecent programming specifically and the broadcast media generally are regulated.

The U.S. Supreme Court will hear oral arguments early next year in Federal Communications Commission v. Fox Television Stations, Inc., which will determine whether the FCC’s policy for monitoring and controlling indecency on the television and radio airwaves is unconstitutional. But some Court watchers speculate the high court will take the opportunity to overturn a 30-plus-year rationale some claim is now irrelevant in light of modern modes of communication.

Specifically, the Court has consistently relied on the broadcast medium’s twin pillars of pervasiveness and accessibility to children to justify limited First Amendment protection for speech uttered over the public airwaves. That is, differences in the characteristics of broadcasting and other media have for many years warranted disparate constitutional standards such that a restriction on speech that likely would be struck down if applied to the print media, cable television or the Internet would often be allowed to stand in the broadcast context.

Yet, broadcasters and other media advocates, legal scholars and even courts now question the validity of the reasoning underlying this distinction — teeing up the issue for review by the nation’s highest Court.

“We face a media landscape that would have been almost unrecognizable in 1978,” the appellate court in FCC v. Fox said. “Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did YouTube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a uniquely pervasive presence in the lives of all Americans.

“The same cannot be said today. The past 30 years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch.”

Nonetheless, the appellate court noted it was bound by earlier Supreme Court jurisprudence and required to apply the broadcast context’s lower standard, “regardless of whether it reflects today’s realities.”

“The case offers the Court the chance to go all the way back and rethink whether the basis for regulating broadcast media still makes sense,” said Stephen Wermiel, who teaches constitutional law at American University in Washington, D.C. “It doesn’t make sense for the Court to [apply] a content-based regulation for TV and radio that cannot be applied to other media.”

But whether the Court opts to tackle a comprehensive analysis of an entire industry’s standard of regulation or instead take a narrow approach that focuses solely on the words of the FCC’s indecency policy is ultimately anybody’s guess, Wermiel said.

“It may just address whether the FCC’s indecency policy is vague. That could be all the case is about,” he said.

Indeed, the media parties seem to be preparing to argue, like they did in the lower court, that because the indecency standard provides no clear guidelines as to what material is covered, the policy forces broadcasters to censor themselves or risk massive fines. In other words, the policy is unconstitutionally vague and chills protected speech, the networks claim.

Regardless of the specific arguments raised, Wermiel predicted the case may be a difficult one to resolve, at least for some members of the Court.

“This case presents a challenge to the Supreme Court to balance the distaste that a significant number of justices have for public vulgarity against the robust view of free speech that has moved the Court for many years, including recently,” he said.

From George Carlin to Bono to Nicole Richie

The case is preceded by a storied background that involves vamped and revamped policies, an earlier Supreme Court ruling in the matter that may foreshadow this next one and inexplicable about-faces by the FCC.

The U.S. Congress vested the FCC in 1960 with the authority to assess fines on those who “utter any obscene, indecent, or profane language by means of radio communication,” in violation of federal law.

In 1975, the agency got its chance to do so, when a New York radio station broadcast in midafternoon comedian George Carlin’s “Filthy Words” monologue, a veritable 12-minute string of expletives.

The FCC brought action against Pacifica Foundation, the broadcaster that aired the Carlin monologue. The commission found Pacifica had engaged in indecent speech as the agency thereby defined it: “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.” That definition remains to this day.

Pacifica appealed the ruling to the U.S. Court of Appeals in Washington, D.C., which struck down the FCC’s indecency regime as both vague and overbroad, a standard that often led to “unconstitutional censorship.”

The U.S. Supreme Court reversed, expounding a rationale that afforded the FCC more regulatory authority over broadcasting than was permissible for other media: “Of all forms of communication, it is broadcasting that has received the most limited First Amendment protection” because of its “uniquely pervasive presence in the lives of all Americans,” the Court said in 1978 in FCC v. Pacifica. Moreover, the nature of broadcast television — as opposed to printed materials — made it “uniquely accessible to children, even those too young to read.”

In what it emphasized was a narrow holding, the Pacifica Court limited its review to the Carlin monologue and declined to rule on the broader issues of whether the regulation was overbroad and would chill protected speech. Rather, the Court stressed the specific factual context of the Carlin monologue, particularly his deliberate and repetitive use of expletives to describe sexual and excretory activities.

Moreover, the Court took the FCC at its word that it would proceed with enforcement of the policy cautiously, which the Court reasoned would minimize any chilling effect that might otherwise result.

According to the Second Circuit opinion in the Fox case, in the years following Pacifica, the FCC limited its indecency enforcement authority to the seven specific words in the Carlin monologue. The agency abandoned this policy in 1987, however, in favor of the definition it used in its Pacifica order.

In 2001, the FCC, in an attempt to provide broadcasters with guidance about the indecency policy and enforcement regime, issued a statement further explaining the standard. According to the commission, an indecency finding involved the following two determinations: 1) whether the material “describes or depicts sexual or excretory organs or activities”; and 2) whether the broadcast is “patently offensive as measured by contemporary community standards for the broadcast medium.”

A broadcast would be considered patently offensive, the FCC further articulated, if it, among other factors, dwelled on or repeated at length the description or depiction of the sexual or excretory activity. As such, the FCC reiterated its policy that single, non-literal uses of expletives uttered in a fleeting, isolated or accidental manner were not actionable as indecent.

Until 2004, that is, the year after U2 frontman Bono exclaimed during a live broadcast of the 2003 Golden Globe Awards, “This is really, really, fucking brilliant. Really, really, great,” upon his band’s receipt of the award for best original song.

In response to complaints filed after the incident, the FCC declared for the first time that so-called “fleeting expletives” could be deemed actionably indecent speech. The agency had begun increased enforcement efforts just a couple months earlier, after the broadcast of the 2004 Super Bowl, during which Justin Timberlake exposed Janet Jackson’s breast for a fraction of a second during the pair’s halftime show.

Around the same time the FCC expanded its enforcement efforts, the agency also began issuing record fines for indecency violations, announcing it would impose monetary penalties on broadcasters “based on each indecent utterance in a broadcast, rather than proposing a single monetary penalty for the entire broadcast.” In addition, Congress increased the maximum fine permitted by a factor of 10 — from $32,500 to $325,000.

In an attempt to provide guidance about what was considered indecent under the new policy, the commission applied the standard it adopted in response to the Golden Globe incident to numerous broadcasts. In this order, the FCC found four programs indecent, all of which involved fleeting expletives: 1) Cher’s unscripted statement during her acceptance speech at the 2002 Billboard Music Awards that “People have been telling me I’m on the way out every year, right? So fuck ‘em”; 2) Nicole Richie’s unscripted remark while on-stage to present an award at the 2003 Billboard Music Awards: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple”; 3) episodes of “NYPD Blue” in which “bullshit” was uttered several times; and 4) a description by a guest on “The Early Show” of a fellow contestant on the reality television show “Survivor” as a “bullshitter.”

On reconsideration, the FCC affirmed its finding of indecency as to both awards shows but reversed itself on “The Early Show” order and dismissed the “NYPD Blue” complaint on procedural grounds.

In this final decision, the commission stated that not every occurrence of an expletive is indecent under its rule, conceding that expletives that are “integral” to an artistic work or occurring during a “bona fide news interview” might not “run afoul” of the indecency standard. As such, the FCC reversed its previous decision about “The Early Show” because the utterance of the word “bullshitter” took place during a bona fide news interview.

Indecency in the Courts

All the major broadcast networks and local affiliates affected by the FCC’s indecency policy asked the U.S. Court of Appeals in New York (2nd Cir.) to review this decision.

The court found that the policy was arbitrary and capricious under a federal law that governs administrative agencies because the FCC failed to adequately explain why it had changed its nearly-30-year policy on fleeting expletives. Because the court struck down the policy on administrative grounds, it declined to address the constitutional issues in the case, though it noted it was “skeptical that the Commission could provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster.”

In a 5-4 decision in April 2009, the Supreme Court reversed the Second Circuit ruling, holding that the fleeting expletives policy was not arbitrary and capricious because “the commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children.”

The Supreme Court did not rule on the constitutional arguments but instead sent the case back to the Second Circuit for its opinion on those issues. Yet, grave concerns about the First Amendment implications of the current indecency standard were not absent from the high Court’s analysis, namely Justice Clarence Thomas’ and Justice Ruth Bader Ginsburg’s concurring and dissenting opinions, respectively.

“I write separately to note the questionable viability of the precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case,” Thomas said. “The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so in these cases.”

Ginsburg expressed disdain for the FCC’s “bold stride beyond the bounds” of Pacifica’s narrow holding, stating, “There is no way to hide the long shadow the First Amendment casts over what the Commission has done.”

Ginsburg also took issue with the FCC’s sanctioning of speech that, unlike Carlin’s “verbal shock treatment,” was “neither deliberate nor relentlessly repetitive nor used to describe sexual or excretory activities or organs” but rather may reflect language some at the FCC find distasteful.

In perhaps a foreshadow of what the Court, or at least Ginsburg, will consider when evaluating the constitutionality of the indecency rule, the justice said, “If the reserved constitutional question reaches this Court, we should be mindful that words unpalatable to some may be commonplace for others, the stuff of everyday conversations.”

The indecency policy’s lack of discernible standards and resultant risk that the rule will be enforced in a discriminatory manner to permit favorable and suppress unfavorable expression were also troubling to the Second Circuit when it ruled in August 2010 on the networks’ constitutional challenges, the opinion currently before the Supreme Court.

“We have no reason to suspect that the FCC is using its indecency policy as a means of suppressing particular points of view. But even the risk of such subjective, content-based decision making raises grave concerns under the First Amendment,” the court said. “Nothing prevents the FCC from applying its indecency policy in a discriminatory manner in the future.”

The court ultimately agreed with the networks that the indecency standard is impermissibly vague and leaves broadcasters with no degree of certainty as to what the policy is or how they can comply with it.

Notably for members of the media, the court rejected the FCC’s claim that the bona fide news exemption should adequately assuage news broadcasters’ fears of indecency fines and thereby cure any potential chilling effect.

Yet, as The Reporters Committee for Freedom of the Press will argue in a friend-of-the-court brief submitted to the Supreme Court in support of the networks, the exemption does not adequately protect speech at the heart of the First Amendment’s protection.

Specifically, the FCC has consistently reiterated that there is no outright news exemption from its indecency rules, and made clear that it considers the decision to apply the exception a matter within its discretion.

Moreover, the FCC on several occasions has deemed content in a news program indecent, despite its claim of restrained approach when handling complaints stemming from news programming. Such inconsistent application of the news exemption strips broadcasters of any assurance that news programming is immune from liability, according to the brief.