In a unanimous ruling, the U.S. Supreme Court affirmed the Second Circuit’s decision, overturning Federal Communications Commission indecency orders relating to fleeting utterances of profanity broadcast during the 2002 and 2003 Billboard Music Awards on Fox television channels and a fleeting view of a nude woman’s buttocks and breast during an episode of NYPD Blue on ABC television channels. (Click here to read our summary of the Second Circuit’s decision.) The FCC had issued notices of violation that these broadcasts were “actionably indecent” under revised FCC policy, even though FCC policy at the time of the incidents suggested that fleeting utterances of expletives or fleeting nudity were not actionably indecent. The Supreme Court held that the FCC’s change of policy after the instances occurred, and its subsequent issuance of notices of violation against Fox and ABC under the new policy, violated the networks’ right to due process because neither Fox nor ABC had sufficient notice of the applicable FCC policy.
The cases revolved around three incidents that occurred during television broadcasts in 2002 and 2003 – two “isolated utterances” of expletives on Fox ‘s Billboard Music Awards show in 2002 and 2003, and a third incident, in a 2003 episode of the ABC television drama NYPD Blue, involving a seven-second view of a female actor’s nude backside and a momentary glimpse of the side of her breast.
At the outset, the Court gave an overview of the FCC regulations, the FCC’s prior rulings on similar matters, and the Court’s landmark 1978 decision in FCC v. Pacifica Foundation. From 1978 until 2001, the FCC based its rules concerning the use of indecent language on radio and broadcast television on the Pacifica case, which arose from comedian George Carlin’s “Filthy Words” monologue. The case set forth a blanket prohibition on the use of seven specific words, regardless of context. Citing the need for a more flexible policy for indecency enforcement, the FCC set forth the underlying rule for its “fleeting expletives” policy in its 2001 Industry Guidance, explaining that an indecency finding involved two determinations: first, whether the material describes or depicts sexual or excretory organs or activities, and second, whether the broadcast is “patently offensive” as measured by contemporary community standards for the broadcast medium. The “patently offensive” determination depends on three factors: “(1) the explicitness or graphic nature of the description or depiction, (2) whether the material dwells on or repeats at length, and (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.” Under the guidelines, the FCC took into account whether a station’s broadcast of allegedly indecent material was an isolated occurrence, and therefore not actionable, or repetitive behavior, which violated the policy.
After the three incidents at issue occurred, but before it issued a notice of liability against either station, the FCC issued an order (the Golden Globes order), declaring for the first time that a single, nonliteral use of an expletive (a so-called “fleeting expletive” and in the Golden Globes case, band member Bono’s utterance of an expletive during the broadcast of the 2003 show) could be actionably indecent. As it eventually developed, the fleeting expletives policy also included a blanket prohibition, with limited exceptions, on the use of the words “shit” and “fuck.” At around the same time, the FCC also began interpreting penalty assessments as being on a per-broadcast, rather than a per-program basis, with each licensee accounting for at least one broadcast. Along with Congress’s increase of the maximum indecency fine from $32,500 to $325,000, this change in enforcement policy subjected violators to fines which could easily run into the tens of millions of dollars.
In 2006, the FCC issued an order against Fox and ABC, among others, finding the incidents actionably indecent. Although it did not levy a monetary penalty against Fox, it declared the isolated utterances to have violated its decency standards. As to ABC, the Commission assessed a fine of $27,500 on each of the 45 ABC-affiliated stations that broadcast the episode, finding that the airing of the actor’s body parts was indecent under its Industry Guidance. Fox and its fellow petitioners sought review of the order and, in a two-to-one decision, the Second Circuit invalidated the “fleeting expletives” policy as arbitrary and capricious under the Administrative Procedure Act. The Supreme Court granted certiorari and, in a 5-4 decision, reversed the Second Circuit’s decision and remanded, instructing the Second Circuit to consider constitutional challenges to the FCC’s policy not addressed in its first decision. In that decision, the Court ruled that the FCC’s modification of its decency rules to ban fleeting expletives was neither arbitrary nor capricious, and returned the case to the Second Circuit for consideration of whether the policy was constitutional, since the court of appeals had not yet ruled on that issue. (Click here to read our summary of the Supreme Court’s prior decision.)
On remand, the Second Circuit ruled that the policy was unconstitutionally vague and set aside the FCC’s orders, finding that, at the time the broadcasts occurred, the FCC’s policies towards similar incidents were inconsistent. For example, the FCC found no violation if the expletives occurred during a bona fide news interview or were “demonstrably essential to the nature of the artistic or educational work.” This vagueness made it difficult for broadcasters to determine whether a particular scene would pass muster or not, leading to self-censorship to avoid large fines or the loss of their broadcasting license.
The Supreme Court granted certiorari and affirmed the Second Circuit’s ruling, holding that the FCC’s standards were unconstitutionally vague and failed to provide fair notice to the broadcasters of the words or behavior that could be found to violate those standards.
The Supreme Court rejected the government’s arguments, noting that it had conceded that Fox “did not have reasonable notice at the time of the broadcasts that the Commission would consider non-repeated expletives indecent.” The Court also found the argument that no forfeiture had been imposed on Fox and that the FCC would not hold the violation against Fox when it was time to renew its licenses unpersuasive, noting not only that the FCC had the statutory power to take prior offenses into account, but that promising not to do so would not remedy the constitutional violation. Fox would also suffer reputational injury, which would have an economic impact, if the FCC rulings stood.
The Court likewise rejected the government’s argument that ABC had notice that the brief nude scene would be considered indecent under a 1960 FCC decision, finding that an “isolated and ambiguous statement from a 1960 Commission decision does not suffice for the fair notice required when the Government intends to impose over a $1 million fine for allegedly impermissible speech.” FCC rulings in this area also had been inconsistent, noted the Court, since the Commission had declined to find violations of its rules in other cases involving brief nudity.
As the Court stated, “[e]ven when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way.”
Because the Court decided the case on Fifth Amendment Due Process grounds, it specifically declined to rule on whether the FCC’s policies violated the First Amendment, whether the Court’s prior decision in Pacifica should be revisited, or whether the indecency policy in the Golden Globes order is constitutional. The Court left it to the FCC to decide whether a policy change was in order, and to other courts to issue further rulings on the FCC’s policies.
Justice Kennedy wrote the opinion, in which Justices Roberts, Scalia, Thomas, Breyer, Alito, and Kagan joined. Justice Ginsburg wrote a brief concurring opinion, while Justice Sotomayor took no part in the decision.