A U.S. Supreme Court fight over television profanity and nudity may usher in a new era for broadcasters, potentially freeing them from federal restrictions on the content of their programming.
The justices will hear arguments on Jan. 10 that the Federal Communications Commission is violating the Constitution by imposing fines for on-air indecency. The dispute centers on expletives used by Cher and Nicole Richie on awards shows seen on News Corp.’s Fox television and a scene featuring a naked actress on “NYPD Blue,” aired on Walt Disney Co.’s ABC.
The court’s ruling may bring the biggest change in the FCC’s regulation of broadcast content since the agency in 1987 stopped enforcing the Fairness Doctrine, which required broadcasters to present both sides of controversial issues. Fox and ABC are asking the court to overturn a 34-year-old ruling that lets the FCC regulate broadcast indecency while exempting cable and satellite television and the Internet.
“It just doesn’t make sense to say one rule applies to everything else and then say one special rule applies to broadcast television,” said Steven R. Shapiro, legal director of the New York-based American Civil Liberties Union, which supports the broadcasters.
The court drew that distinction in 1978, when a majority said the FCC could sanction a radio station for airing comedian George Carlin’s profanity-laced “Seven Dirty Words” monologue. The court said broadcast television and radio had a “uniquely pervasive presence in the lives of all Americans” and were “uniquely accessible to children.”
The Obama administration and the FCC say that reasoning remains valid, arguing in court papers that parents still depend on broadcast television to be a “relatively safe medium for their children.” Comcast Corp.’s NBC and CBS Corp.’s CBS are joining ABC and Fox in opposing the FCC.
The high court has championed free speech under Chief Justice John Roberts, striking down restrictions on violent video games, pharmaceutical marketing and political spending. In a 2009 ruling on the FCC’s indecency policy, justices in both the majority and dissent pointed to First Amendment concerns about the crackdown.
Led by Chairman Michael K. Powell, the FCC said in 2004 that it would begin punishing broadcasters for fleeting expletives -- one-time utterances on live shows.
Powell said in an interview this week that he now regrets that vote, saying, “if I were voting again, I would have dissented.” He also questioned the logic behind singling out broadcasters for scrutiny at a time when cable and satellite television reach at least 85 percent of American homes.
“I’ve always been deeply troubled by the way the First Amendment changes when you change channels,” said Powell, now president of the National Cable & Telecommunications Association in Washington, which represents Fox Networks Group along with cable operators.
The Supreme Court case concerns incidents at the Billboard Music Awards, shown on Fox. At the 2002 show, Cher referred to critics of her work by saying, “F--- ‘em. I still have a job and they don’t.” A year later, Richie said, “Have you ever tried to get cow s--- out of a Prada purse? It’s not so f---ing simple.”
The FCC concluded that the broadcasts violated its indecency regulations, though the agency stopped short of imposing fines. Federal law lets the FCC levy a $325,000 fine on each station that airs indecent material between 6 a.m. and 10 p.m.
In the “NYPD Blue” case, the FCC would impose penalties totaling $1.2 million on more than 40 ABC-affiliated stations. The disputed 2003 episode shows actress Charlotte Ross’s buttocks as she disrobes for a shower and later a frontal view, with her hands covering her breasts and pubic area, after a young boy inadvertently walks in.
A federal appeals court in New York said in rulings favoring the broadcasters that the FCC had applied its rules inconsistently. The panel pointed to the FCC’s conclusion that “bulls---” was indecent while “dickhead” was permissible and to the agency’s decision not to take action over ABC’s airing of the profanity-laden movie “Saving Private Ryan.”
Broadcasters “are left to guess” whether the use of an expletive will be permitted, the appeals court said.
The dispute concerns issues the high court didn’t resolve when it temporarily revived the FCC’s anti-expletive policy in 2009, saying the agency had given a sufficient explanation to comply with a law governing administrative agencies.
Debate Over Standards
The broadcasters say the FCC’s standards are so vague they violate the Constitution. “The FCC’s discretion in these cases is unbounded and thus unconstitutional,” Fox, NBC and CBS argued in court papers.
Defenders of the FCC’s policy say the lines will become clearer as the agency acts in more cases. Broadcasters already have ample understanding of the proper boundaries, said Tim Winter, president of the Parents Television Council, a Los Angeles-based group that lobbies against indecent programming.
“It’s absurd for such brilliant, creative people all of a sudden to become so stupid on the issue of indecency,” he said.
A ruling that the policy is too vague may let the FCC re-enact its indecency rules with clearer guidelines. A decision focused on the FCC’s power over broadcasters would have more sweeping ramifications, perhaps affecting the agency’s limits on cross-ownership of newspapers and broadcast outlets.
“Why really should broadcasters be the orphan stepchildren of the First Amendment parentage?” said Carter Phillips, a Washington appellate lawyer who will argue on behalf of Fox. “We should at least be treated the same as cable.”
Winter said “the spigot will open” for profanity should the high court free broadcasters from restrictions. Prime-time use of the word f---, either bleeped or muted, already has risen from 11 instances in 2005 to 276 instances in 2010, a study by Winter’s organization found.
Winter says the FCC’s indecency rules are a small price for broadcasters to pay for the right to use valuable public airwaves.
“If you’re able to deliver into every living room in the country for free, can’t you wait until 10:00 to be indecent?” Winter said. “They want all the rights of a broadcast license without any of the responsibilities.”
News Corp. and CBS are based in New York. Disney is based in Burbank, California and Comcast is based in Philadelphia.
Bloomberg LP, which operates Bloomberg Television, isn’t involved in the case.
The court will rule by July in the case, FCC v. Fox Television Stations, 10-1293.