Supreme Court to Hear TV Decency Case

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Special Report - January 9, 2012
The United States Supreme Court is scheduled to hear oral arguments Tuesday in an important case that could determine the constitutionality of the Federal Communications Commission’s (FCC) enforcement of a ban on the broadcast of indecent material on television during the hours when children are most likely watching. The high court agreed in June 2011 to hear an appeal of a ruling by the U.S. Second Circuit Court of Appeals in the case, FCC v. Fox Television Stations. The Second Circuit ruled in 2010 that the FCC’s indecency policy related to “fleeting expletives,” which allows fines to be levied against broadcasters that air even a single use of the “f-word” or similar profane terms during the hours of 6 AM to 10 PM, violates the First Amendment “because it is unconstitutionally vague.” In agreeing to hear an appeal of the Second Circuit’s decision, the Supreme Court has limited its consideration to a single question in the case, specifically, “Whether the Federal Communications indecency-enforcement regime violates the First or Fifth Amendment to the U.S. Constitution.”

This is the second time the high court has heard the case involving the FCC’s fleeting expletives policy. Two years ago, in April 2009, the Supreme Court issued a 5 to 4 decision that found that the FCC’s policy on “fleeting expletives” did not violate federal law, and sent the case back to the Second Circuit to consider the constitutional questions. In July 2010, the Second Circuit ruled that the entire FCC ban on “fleeting expletives” is unconstitutional, and the FCC appealed that decision to the Supreme Court.

According to SCOTUS blog, while the Supreme Court only considered the FCC ban as it applied to “fleeting expletives” in 2009, this time the high court will consider the constitutionality of the FCC ban as it was applied to both profanity and nudity, specifically three broadcasts incidents—two involving utterances of the “f-word” and “s-word” by performers during live broadcasts in 2002 and 2003, and one involving nudity in a scene on an episode of the show, “NYPD Blue.” The SCOTUS blog also explains, “It is important to note, at the outset, that this controversy is not about obscenity. Federal communications law bars both obscene and indecent material from TV and radio broadcasts, but the fact is that the Constitution does provide protection for a good deal of “indecent” expression, while providing no protection at all for obscene utterances. This case is focused entirely on the FCC’s authority to regulate broadcasts that it deems to be ‘indecent.’”

In its brief to the Supreme Court, the FCC argues that, “Regulation of indecent material has been a defining feature of broadcasting since the medium’s very inception, and it is one of the enforceable public obligations that broadcasters accept in return for their use of the public’s airwaves.” The FCC brief continues, “And under the Commission’s rules, broadcasters are not entirely disabled from broadcasting indecent material but are simply required to channel it to the hours (after 10 PM) when it is unlikely to reach large numbers of children. That measured approach to indecency enforcement strikes a reasonable balance between the government’s compelling interest in protecting children and the speech rights of adults.”

In addition to the U.S. Justice Department, which is defending the FCC policy in the case, several pro-family organizations have filed amicus briefs with the Supreme Court in support of the FCC policy, including Morality in Media, Focus on the Family, Family Research Council, and the Parents Television Council.

Related resources:
Court Challenges Indecency Policy - July 19, 2010
Supreme Court to Hear Arguments in Indecency Case - November 3, 2008
High Court to Rule on FCC Indecency Rule - March 20, 2008