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Both sides claim victory in court’s FCC decision

WASHINGTON (BP) — In a narrow decision that did not address the major constitutional questions, the U.S. Supreme Court Thursday tossed out the FCC’s penalties against ABC and Fox for broadcasts that included expletives and brief nudity, saying the two networks were not given fair notice that “brief” moments of indecency could be fined under federal policy.

Significantly, though, the high court left open the door for the FCC to tweak its policy to appease the justices’ concerns.

The 8-0 decision allowed both sides to claim victory.

At issue were broadcasts on Fox from 2002 and 2003 in which the “f-word” and “s-word” were said on live television, and a scripted ABC broadcast from 2003 that included partial female nudity.

The FCC found that both broadcasts violated the commission’s indecency policy, and the broadcasters responded by filing suit, arguing they were not given fair notice and that the policy was unconstitutionally vague. For instance, the broadcasters argued, networks in the past have not been fined for airing “Schindler’s List,” despite its scenes depicting wartime nudity.

The FCC agreed with the broadcasters, but it did not toss out the policy, as ABC and Fox had requested. Instead, it found that the indecency policy was unconstitutional “as applied.”

“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 in the court’s opinion. “Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.”

A “fundamental principle in our legal system,” Kennedy wrote, “is that laws” must give “fair notice of conduct that is forbidden or required.”

In a key sentence that conservative groups highlighted, Kennedy added later, “This opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements.” It also “leaves the courts free to review the current policy or any modified policy in light of its content and application.”

Broadcasters had asked the Supreme Court not only to toss out the policy but also to reverse one of the court’s own opinions, the 1978 FCC v. Pacifica opinion, which helped form the basis for giving the FCC the authority to protect the airwaves from indecency. Justices, though, did not address the Pacifica case.

Backers of the federal government’s indecency policy have said the Supreme Court’s failure to uphold the commission’s authority would unleash a flood of graphic nudity and harsh profanity on broadcast television in prime time.

Tim Winter, president of the Parents Television Council — which supports the FCC’s policy — applauded the ruling.

“Once again the Supreme Court has ruled against the networks in their years-long campaign to obliterate broadcast decency standards,” Winter said in a statement. “The Court … specifically acknowledged the FCC’s ability to continue broadcast decency enforcement as part of its public interest obligation.

Winter added, “Broadcast decency rules have existed to protect children since the dawn of the broadcast medium. It is for their sake that there will still be decency rules and the TV networks will be required to abide by them.”

The decision was 8-0 because Justice Sonia Sotomayor recused herself from the case. The case was FCC v. Fox Television Stations.
Michael Foust is associate editor of Baptist Press.

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