Supreme Court to FCC: You Can't Enforce an Indecency Policy You Made Up After the Fact


The Supreme Court decided against the Federal Communications Commission this morning in a case involving fleeting expletives on broadcast television. But rather than rule on First Amendment grounds that the FCC has no authority to police four letter words on television, the court instead ruled that because FCC actions were based on policies that broadcast networks could not have known about at the time of the alleged violations, the FCC actions were unconstitutionally vague and therefore violated due process. It's a victory for common sense and clear law, but less of a win for free speech.

The case, FCC v. Fox, involved three instances in which the FCC's indecency ban was allegedly violated: First, singer Cher saying "So fuck 'em" in an unscripted acceptance speech during an awards show broadcast by Fox; second, "a person named Nicole Richie" (as the ruling describes it) saying "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple" while presenting a Billboard Music Award, also on Fox; third, a seven second shot of a woman's nude buttocks, along with a brief glimpse at the side of her breast, on a 2003 episode of ABC's NYPD Blue.

For each of those instances, the FCC later issued Notices of Liability to the networks under a "clarified" indecency policy known as the Golden Globes Order, which was drawn up in 2004 after singer Bono dropped a single F-bomb live at the Golden Globes—and after the networks aired the offending content. The new rules were cited explicitly by the FCC: "[U]nder our Golden Globe precedent, the fact that Cher used the 'F-word' once does not remove her comment from the realm of actionable indecency," the Commission wrote to Fox. The Commission chose not to fine Fox for the Cher comment, but it was basing its liability notices against the networks on a clarified set of rules that did not exist when the instances in question occurred. (ABC, on the other hand, was fined to the tune of $1.2 million.) 

The Golden Globes Order didn't merely clarify the agency's indecency policies, it made crucial changes: Indecency guidelines released in 2001 noted that an important consideration in determining whether or not content was indecent was "'whether the material dwell[ed] on or repeat[ed] at length'" the offending material. The 2004 update changed this guidance, noting that even fleeting expletives could meet the standard for indecency.

But since neither Fox nor ABC had the updated guidance available to them when the content in question aired, the Court ruled that they could not be held liable under it. The regulatory history "makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be action­ably indecent; yet Fox and ABC were found to be in viola­tion," writes Justice Kennedy in his majority opinion. The lack of prior notice, the decision declares, means that the Commission's standards were impermissably vague.

Due process requires enforcement agencies to provide fair advance notice of rules, and in this case the networks didn't have it. "Regulated parties should know what is required of them so they may act accordingly," the decision explains, especially in cases involving free expression. "When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech."

And yet despite the emphasis on protecting speech, the decision punts on the fundamental First Amendment questions. Because the case was decided on due process grounds, the Court says it does not need to consider the constitutionality of the FCC's longstanding ban on broadcast indecency or even the particulars of its most recent guidelines. And while the decision suggests that in the future the FCC may have to be more clear about the details of its speech rules, it imposes no significant new restrictions on what sort of speech the FCC can or cannot regulate under its indecency policy.

Indeed, the ruling stresses how little the FCC will have to change in light of the decision, noting that "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 and leaves courts free to review the current, or any modified, policy in light of its content and application."

So despite a narrow ruling that the FCC's actions against broadcast networks for fleeting expletives were not permissable in a handful of particular instances, the FCC will still have considerable freedom to regulate speech it deems indecenct.

That leaves us with an old problem: The FCC's indecency policy, which attempts to judge whether content is ""patently offensive as measured by contemporary community standards" is inherently vague. It's a mysterious and arbitrary standard, and no one really knows what it means — including and especially the FCC. As Jacob Sullum has pointed out, the agency has made a practice of issuing inconsistent and frustratingly unclear rulings as to what is allowed and what isn't. If the Court truly wants to rid the world of vaguely written regulations that create compliance confusion and chill free speech, it ought to start by striking down the agency's indecency regulations in their entirety.