July 16, 2024

Justices Agree to Consider F.C.C. Rules on Indecency

WASHINGTON — The Supreme Court agreed on Monday to decide whether the Federal Communications Commission’s policies banning nudity, expletives and other indecent content on broadcast television and radio violated the Constitution.

The granting of a hearing in the case, F.C.C. v. Fox Television Stations, No. 10-1293, puts into question whether the court will overturn its landmark 1978 ruling on indecency, F.C.C. v. Pacifica Foundation.

The Pacifica decision, which upheld the commission’s finding that George Carlin’s classic “seven dirty words” radio monologue was indecent, cemented the F.C.C.’s ability to police the public airwaves.

But in the subsequent 33 years, the media landscape has markedly changed, causing several justices to question in recent decisions whether those standards were still relevant in a world of unfiltered cable television, Internet, film and radio.

The case is an appeal by the F.C.C. of a ruling in 2010 by the United States Court of Appeals for the Second Circuit that said the commission’s policy against “fleeting expletives” and other indecency, which it measures on a case-by-case basis, was “unconstitutionally vague.”

The Supreme Court reframed the case slightly, saying it would hear arguments only on whether the F.C.C.’s “indecency enforcement regime” violated the free speech or due process clauses of the Constitution.

At issue are two live broadcasts on the Fox network of the Billboard Music Awards. In the first, in 2002, Cher used an obscenity while accepting an award. In 2003, Nicole Richie, while presenting an award, used two vulgarities in explaining how hard it was to remove cow manure from a purse.

The Supreme Court will also consider whether the appeals court was warranted in overturning a fine against ABC stations for the 2003 broadcast of an episode of the then-popular ABC series “NYPD Blue” that included a naked woman.

The Fox case has previously come before the court. In 2009, the Supreme Court ruled in a 5-4 decision that the commission had followed proper administrative procedures when it invoked the ban on expletives during certain hours against broadcasters. But several justices, including at least one on each side of the decision, expressed skepticism that the ban on expletives was constitutional.

The Obama administration and the F.C.C. asked the Supreme Court to overturn the recent appeals court decision, saying it would keep the agency from effectively policing the airwaves.

“We are pleased the Supreme Court will review the lower court rulings that blocked the F.C.C.’s broadcast indecency policy,” a spokesman for the F.C.C. said in a statement. “We are hopeful that the court will affirm the commission’s exercise of its statutory responsibility to protect children and families from indecent broadcast programming.”

Fox said in a statement that it was “hopeful that the court will ultimately agree that the F.C.C.’s indecency enforcement practices trample on the First Amendment rights of broadcasters.” ABC also said it believed that the Second Circuit was correct and that the Supreme Court should affirm that decision.

The appeals court ruled that the F.C.C.’s policy was inconsistent, in part because the commission ruled that Fox stations violated its policy with the language on the awards shows while it allowed the use of the same language in a broadcast of the film “Saving Private Ryan.”

While the Pacifica case gave the F.C.C. the authority to regulate indecent speech like the Carlin monologue, which made deliberate and repetitive use of vulgarities, it left uncertain whether the use of an occasional expletive could be punished. The F.C.C. later said it could, and it has generally ruled that broadcasters could not allow indecent material from 6 a.m. to 10 p.m. All of the incidents at issue occurred within those protected hours.

The F.C.C. case was one of 11 that the court accepted on Monday for its next term.

Justice Sonia Sotomayor, who was a judge on the Second Circuit before being appointed to the Supreme Court, recused herself from consideration of the F.C.C. case.

Article source: http://feeds.nytimes.com/click.phdo?i=8876b0aeb7d1342e6edfcfe443115bbe

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