Supreme Court Refuses to Say S*** About Legality of Cursing on TV

The Supreme Court on Thursday set aside indecency rulings against Fox and ABC for airing fleeting expletives and nudity on the public airwaves, but declined to rule on the constitutionality of decency standards for broadcast television and radio.

The case was being closely watched because the high court was in a position to decide whether decency standards for broadcast television and radio breached the First Amendment. Opponents argue the rules are unnecessary because of the ubiquity of cable and satellite programming not covered by the standards.

But the justices punted on that hot-button constitutional issue and instead ruled on narrow, procedural grounds in an 8-0 decision with Justice Sonia Sotomayor recused.

The dispute concerned Federal Communications Commission rulings that “fleeting expletives” uttered during the 2002 and 2003 Billboard Music Awards were indecent for public broadcasting. First Cher, then Nicole Richie cursed during the shows aired on Fox. In the other dispute, the FCC said ABC violated decency standards when the network aired a brief nude shot of Charlotte Ross’ buttocks and breast in a 2003 episode of NYPD Blue.

But the justices said that FCC broadcast guidelines, which are enforced for radio and television during the day from 6 a.m. to 10 p.m., were too broad and vague to give broadcasters adequate notice of what the indecency standards actually were.

“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,” Justice Anthony Kennedy wrote for the majority.

(The justices apparently did think the expletives at issue were too indecent to appear in the ruling. The court instead wrote f***, f***ing and s***.)

The FCC in 2004 subsequently adopted clearer guidelines expressly noting that fleeting expletives and nudity were indecent. Yet the justices said those rules were clarified after the conduct at issue in the case, and could not be applied retroactively.

The decision, which went against the Obama administration’s stance, leaves in place the 2004 policy that only affects broadcast radio and television. Cable and satellite programming is not covered under the decency guidelines because those programs are not aired on publicly owned spectrum that is licensed.

The justices declined to decide whether the decency standards breached the First Amendment in light of the “wide availability of multiple other choices for listeners and viewers.” As appeals courts often do, the justices decided not to rule on constitutional grounds and instead focused on due process.

Fox and ABC had urged the commission to set aside the standards — under a First Amendment test — because the rationale for them “has been overtaken by technological change” like the advent of cable and satellite programming, in addition to the widespread use of household time-shifting viewing technologies.

John Bergmayer, senior staff attorney at Public Knowledge, said the digital rights group remains “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 National Association of Broadcasters said “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,” Dennis Wharton, the group’s vice president, said in a statement.

ABC and its affiliates were fined more than $1 million. No fine was imposed against Fox, but the decision could have played a role in spectrum licensing decisions.

SCOTUSblog has all the briefs in the case.

Photo: Supreme Court