June 21, 2012

Supreme Court Sides with Broadcasters But Avoids First Amendment Challenge to Decency Rules


Washington, DC – Today, in FCC v. Fox the U.S. Supreme Court sided with Fox Television and ABC in their “vagueness” challenge to the Federal Communications Commission’s (FCC) decency violations, but the High Court did not rule on the constitutionality of FCC’s decency standards.

The Supreme Court had previously ruled in FCC v. Pacifica Foundation that George Carlin’s “Filthy Words” monologue was indecent because it contained “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.” Following this 1978 ruling, the FCC noted that it would distinguish between repetitive and isolated speech. The FCC sanctioned for three incidents: one involving the 2002 and 2003 Billboard Music Awards, both of which contained the “F word”; an episode of NYPD Blue which contained a seven-second segment of a nude buttocks and a side view of a breast; and a segment on ABC during the 2003 Golden Globe Awards, where the “F word” was used.

In both the Fox and ABC cases, the FCC changed its application of indecency to include even isolated violations. The Supreme Court ruled that the application of this policy change did not give notice to Fox or ABC of what was banned, and therefore the FCC’s application as to these instances was void for vagueness. Going forward with proper notice, the FCC may apply indecency standards to isolated violations. Since the Court decided the case in this manner, it ruled that it need not reach the First Amendment challenge brought by Fox and ABC. That would be a case for another day.

Liberty Counsel filed an amicus brief with the Supreme Court in FCC v. Fox, urging the Court to uphold the decency regulations, while the broadcasters claimed the standards violated their First Amendment rights. For now, the Court declined to reach the First Amendment challenge.

“The airwaves are owned by the people of the United States, not broadcasters” said Mat Staver, Founder and Chairman of Liberty Counsel. “Broadcasters have a duty to operate in the public interest. Certainly protecting children from profanity and nudity is in the public interest.”



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