Supreme Court Rules Existing FCC Profanity, Nudity Policy Unclear

The United States Supreme Court has ruled that the Federal Communications Commission’s policy prohibiting indecent material does not provide clear notice to broadcasters that “fleeting expletives” and “momentary nudity” are punishable under the law.

The decision released by the court yesterday regarded three broadcasts on the Fox and ABC Networks, which the FCC had found to be in violation of government regulations. During the Golden Globe Awards in 2002 and 2003, singer Cher blurted out profanity and actress Nicole Richie used two expletives on stage, which were not silenced by the networks. Additionally, during an episode of NYPD Blue, a scene showed a woman’s bare buttocks for seven seconds.

Current FCC regulations prohibit “any obscene, indecent or profane language” and large fines are imposed for violations of the law.

Because the programs did not repeatedly use profanity or show indecency for a prolonged period, and the rules did not specifically state that even a few seconds of improper material constituted an infraction, the Supreme Court ruled that that the regulations did not provide sufficient warning to the networks. It stated that on other instances, the FCC had not levied fines against others for usage of a single profane word, and that its seemingly sudden and new policy seemed to have reflected a “changed interpretation” of the law that was much stricter.

“Under the 2001 Guidelines in force when the broadcasts occurred, a key consideration was ‘whether the material dwell[ed] on or repeat[ed] at length’ the offending description or depiction, but in the 2004 Golden Globes Order, issued after the broadcasts, the Commission changed course and held that fleeting expletives could be a statutory violation,” the ruling stated.

“The Government argues that ABC had notice that its broadcast would be considered indecent. But an isolated statement in a 1960 Commission decision declaring that televising nudes might be contrary to §1464 does not suffice for the fair notice required when the Government intends to impose over a $1 million fine for allegedly impermissible speech,” it continued. “Moreover, previous Commission decisions had declined to find isolated and brief moments of nudity actionably indecent. In light of these agency decisions, and the absence of any notice in the 2001 Guidance that seven seconds of nude buttocks would be found indecent, ABC lacked constitutionally sufficient notice prior to being sanctioned.”

In releasing the decision, the court did not rule on the whether the regulation was permissible in light of the First Amendment, although the networks requested that it do so — which some are seeing as an act of refusal to overturn current decency laws. The ruling also did not state that the FCC was wrong in now severely punishing fleeting expletives or brief scenes of nudity, but rather outlined that the government should adjust its policy to provide clear warning in light of the ruling.

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While many may be deeply disappointed that the networks involved will not face any penalty in light of yesterday’s decision, some are thankful that the court chose to simultaneously uphold the FCC’s right to fight against profanity and nudity.

“The Court … specifically acknowledged the FCC’s ability to continue broadcast decency enforcement as part of its public interest obligation,” stated Tim Winter, president of the Parents Television Council in Los Angeles, California. “The FCC must now rule on the merits of more than 1.5 million backlogged indecency complaints. The ‘notice’ requirement, which allowed Fox and ABC to slip off the hook in these two cases at issue…, has already been satisfied for all the pending complaints.”

Indecency in the media is a growing concern among many Christian and family organizations today.


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