By an 8-0 vote, the Supreme Court properly has overturned sanctions against two television networks for broadcasting "indecent" content at a time when children might have been watching. But unanimity may have come at the cost of clarity.
Instead of deciding whether the Federal Communication Commission's prohibition of nudity and "fleeting expletives" between 6 a.m. and 10 p.m. violated broadcasters' First Amendment rights, the justices ruled only that the agency failed to provide Fox and ABC with fair warning that such programming would be judged unacceptable.
Tuesday's decision involved three programs: the 2002 and 2003 Billboard Music Awards broadcast by Fox and a 2003 episode of the ABC police drama "NYPD Blue." At the awards, Cher uttered the "F-word" and Nicole Richie used a variation on it. The offending "NYPD Blue" program, as Justice Anthony M. Kennedy put it, "showed the nude buttocks of an adult female character for approximately seven seconds." Fox was cited by the FCC for indecency but wasn't fined. The 45 stations that aired the "NYPD Blue" episode were each fined $27,500.
The U.S. 2nd Circuit Court of Appeals ruled for the networks on broad First Amendment grounds, concluding that the FCC'S indecency rules were so vague and inconsistently applied that they deterred "a vast amount of protected speech." The Supreme Court could have reached the same conclusion. Even more ambitiously, it could have revisited the 1978 ruling in which it upheld sanctions against a radio station that aired the late George Carlin's famous "Filthy Words" monologue. That opinion stressed that broadcasting deserves less First Amendment protection than other forms of communication because it is "uniquely pervasive" and "uniquely accessible to children."
In their brief, Fox's lawyers noted that this observation has been rendered obsolete by the proliferation of cable and satellite TV, the Internet, video games and other media. Also, the lawyers noted, technology unheard of in 1978 now allows parents to block programming they believe is inappropriate.
Instead of ruling broadly, however, the court held simply that Fox and ABC weren't given fair notice because their programs aired in 2002 and 2003, before the FCC had adopted its strict prohibition on "fleeting expletives" and nudity. Only Justice Ruth Bader Ginsburg, in a concurring opinion, said the court should revisit its 1978 ruling.
Sometimes it's wise for the court to rule narrowly, and in this case there may have been a reason for the court to sidestep the First Amendment issue. Apparently because she previously served on the 2nd Circuit, Justice Sonia Sotomayor did not participate in the case, creating the possibility of a 4-4 tie on a broader holding. Still, the constitutionality of vague "indecency" rules is likely to return to the court — unless the FCC acts on Kennedy's comment that the court's ruling "leaves the commission free to modify its current indecency policy." That's a hint the commission should take.