Supreme Court Review: What the Court's Indecency Decision Means for Broadcasters

Earlier this summer, the U.S. Supreme Court released during the last week of its 2011 term its long-awaited opinion in the broadcast indecency cases FCC v. Fox Television Stations, Inc. and FCC v. ABC, Inc. This decision represents an important victory for broadcasters, but, as explained below, leaves several important questions unresolved.


The Fox case arose from the 2002 and 2003 Billboard Music Awards shows, in which Cher used the F-word during the live broadcast of the 2002 show and Nicole Richie used both the F-word and the S-word during the 2003 show. Its counterpart, the ABC case, arose from a February 2003 episode of the award-winning prime-time drama NYPD Blue in which an actress’s bare buttocks were shown for fewer than seven seconds. The FCC found all three broadcasts indecent and imposed substantial forfeitures on 45 ABC stations for their broadcast of NYPD Blue.

In 2010, the Second Circuit Court of Appeals ruled in the Fox case that the FCC’s indecency policy was so vague that it violated the Constitution because it did not give broadcasters sufficient notice of what material the Commission would consider indecent. The Second Circuit’s decision in Fox overturned the indecency findings arising from the Billboard Music Awards broadcasts; the court later applied that decision to overturn the indecency finding against the episode of NYPD Blue. The U.S. Supreme Court heard the appeal from both lower court decisions in January and issued its decision five months later, on June 21, 2012.

The Supreme Court’s Opinion

As the opinion explained, under the FCC's more restrained indecency enforcement policy in place at the time of the challenged broadcasts, the Commission did not sanction fleeting and isolated uses of expletives but, rather, only sanctioned expletives used in a “verbal shock treatment” like George Carlin’s famous “Filthy Words” monologue. (A midafternoon radio broadcast of the Carlin monologue led to the Supreme Court’s 1978 decision in Pacifica Foundation v. FCC, which for the first time upheld the FCC’s authority to regulate the broadcast of indecent material by radio and television stations.)

The FCC’s change in its indecency policy was first announced in a decision following the 2003 broadcast of the Golden Globes awards show, during which singer Bono uttered the F-word during his acceptance speech. The Commission’s Golden Globes decision in March 2004 held, for the first time, that a single, unscripted expletive could be indecent. The FCC then applied its new “fleeting expletives” policy, after the fact, to the Fox broadcasts of the 2002 and 2003 Billboard Music Awards shows. It subsequently found the 2003 episode of NYPD Blue to be indecent.

In a unanimous opinion authored by Justice Kennedy, the Supreme Court held in June that broadcasters could not have known in 2002 and 2003 that the FCC would later find isolated expletives uttered during live awards shows or briefs displays of nudity to be indecent. Because the indecency policy in place at the time of the challenged broadcasts did not give broadcasters “fair notice” of where the line would be drawn with respect to “fleeting expletives” or brief nudity, the Due Process Clause required the indecency findings to be set aside against the broadcasters in Fox and ABC.

Because the Court was able to resolve both cases on the more limited ground that these parties did not have fair notice that these broadcasts would be deemed indecent, the Court declined to decide broader constitutional questions, including: (1) whether the Commission’s indecency policy as it now stands is, on its face, so vague and uncertain that no broadcaster could have fair notice of what speech is prohibited, and (2) whether the First Amendment prohibits the Commission from regulating constitutionally-protected indecent speech (and thus whether Pacifica should be reconsidered).

What Does This Mean Going Forward?

What does the Fox decision mean for broadcasters going forward? The Supreme Court’s opinion leaves several avenues open to the FCC. The Commission cannot impose indecency sanctions on the 2002 and 2003 broadcasts at issue in these cases, and it almost certainly cannot treat other “fleeting expletives” broadcast prior to the 2004 Golden Globes order as indecent in any other pending cases. For cases involving brief nudity, the date line is less clear, but broadcasters are presumably on notice since the FCC’s order in the 2004 Super Bowl/Janet Jackson case, as noted below.

For broadcasts that occurred after the 2004 Golden Globes decision, however, the Commission may elect to impose its current fleeting indecency standard. Should it choose to do so, broadcasters are sure to challenge that policy on the broader constitutional grounds: (1) that the policy itself is so vague that it violates the Due Process Clause because broadcasters simply cannot tell what material the Commission ultimately will deem indecent and (2) that indecency regulation, at least beyond the narrow contours of Pacifica, tramples on broadcasters’ First Amendment rights. The Second Circuit Court of Appeals has struck the current policy, so the FCC is fully aware that its existing policy is not likely to survive a further court challenge.

The 2004 Super Bowl broadcast, in which Janet Jackson’s breast was briefly revealed, was not a part of the Fox decision. In November 2011, the Third Circuit Court of Appeals threw out the $550,000 fine against the CBS stations for the broadcast of the “wardrobe malfunction” on the grounds that it was a departure from the FCC’s existing policies. Earlier this year, the government appealed the Janet Jackson decision to the Supreme Court and asked the Court to hold the appeal until Fox was decided, but the Court issued an order on June 29, 2012, declining to review the decision. The Third Circuit’s decision, which was based on procedural rather than constitutional grounds, thus stands as the final word on the Janet Jackson broadcast. In his comments accompanying the order, however, Chief Justice Roberts warned that “the brevity of an indecent broadcast—be it word or image—cannot immunize it from FCC censure,” and that “any future ‘wardrobe malfunctions’ will not be protected.” So where the law on “fleeting” expletives and pictures is headed remains unclear.

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Although the Fox decision, which set aside more than a million dollars in fines imposed on the ABC stations that aired NYPD Blue, was a victory for the broadcaster parties, the narrow decision nevertheless leaves a number of important issues unresolved. The Supreme Court’s limited holding promises further proceedings, at the FCC and in the federal courts, before the contours of the Commission’s constitutional authority to regulate broadcast indecency are finally settled.

Currently there are nearly 1.5 million indecency complaints at the FCC that have remained pending in light of the Fox case. These complaints involve about 9,700 television broadcasts. Some date back to 2003 and are holding up more than 300 license renewal applications. In separate statements, both Commissioner Robert McDowell and Commissioner Ajit Pai expressed that it is now time for the FCC staff to get to work and start processing this significant backlog. How the FCC will process these complaints in light of the Fox decision will likely depend on a variety of factors. Some believe the Commission will not act until after the November elections. It is impossible to say at this time.

Third Circuit Reaffirms Ruling on "Wardrobe Malfunction" Case

Today, the federal Third Circuit Court of Appeals issued an opinion in the Janet Jackson indecency case reaffirming its earlier decision that CBS owned and operated stations were not liable under the "indecency" statute for the broadcast of Janet Jackson’s "wardrobe malfunction."

The Third Circuit heard oral argument in the case more than a year ago, after the U.S. Supreme Court vacated the Third Circuit’s original decision and sent the case back to the Third Circuit for further consideration in light of the Supreme Court’s ruling in FCC v. Fox Television Stations, Inc., a case involving fleeting expletives.

By a two to one majority, the Third Circuit held today, as it had before, that the FCC’s sanction against CBS for the fleeting nude image was a departure from its policies on actionable indecency. In a win for broadcasters, the Court vacated in its entirety the Commission’s $550,000 penalty against the CBS owned stations.

Third Circuit Schedules Oral Argument in Janet Jackson Indecency Case

Broadcasting & Cable is reporting that the Third Circuit has scheduled oral argument in the Janet Jackson "wardrobe malfunction" case for February 23, 2010, at 1:30 p.m. 

The case involves review of the FCC's determination that the Super Bowl half-time broadcast of less than one second of Janet Jackson's bare breast was actionably indecent.  In July 2008, the Third Circuit vacated and remanded the FCC's decision, finding that the Commission's action was arbitrary and capricious because the material at issue was "fleeting" and, at the time of the broadcast, the FCC's policy was not to sanction the broadcast of "fleeting nudity."  The FCC appealed the Third Circuit's decision to the U.S. Supreme Court.

However, the Second Circuit's "fleeting expletive" case made it to the Supreme Court before the Third Circuit's case and, as reported earlier, the Supreme Court in Fox v. FCC upheld the FCC's decision in that case on procedural grounds.  But the Supreme Court remanded the Fox case to the Second Circuit to determine whether the FCC can regulate "fleeting expletives" without violating the free-speech protections of the First Amendment. 

Shortly after the Supreme Court issued its Fox opinion, it vacated the Third Circuit's Janet Jackson decision and remanded the case for further consideration in light of Fox.  Just as the oral argument scheduled before the Second Circuit on January 13 in Fox, the Third Circuit oral argument on February 23 is expected to explore whether the FCC's "fleeting nudity" indecency policy can survive First Amendment scrutiny.

We will keep you informed of developments in these two important cases.

Second Circuit Sets Oral Argument in Fox v. FCC

The U.S. Court of Appeals for the Second Circuit has scheduled to hold oral argument in the Fox v. FCC indecency case on January 13, 2010, at 3:00 pm. 

The Fox case involves review of the FCC's determination that Cher's use of the F-word during the 2002 Billboard Music Awards show and Nicole Richie's use of the F-word and S-word during the 2003 Billboard Music Awards show (both broadcast by the Fox Network and its affiliates) were actionably indecent.  We previously reported about the Supreme Court's decision in the Fox case here

Although the Second Circuit previously ruled that the FCC had not provided a "reasoned basis" for changing its prior indecency enforcement policy and imposing liability for a single, "fleeting" expletive, the Supreme Court reversed the Second Circuit and upheld the FCC's decision on procedural grounds.  The Supreme Court found that the FCC had provided a "reasoned basis" for its decision.  The case was then remanded to the Second Circuit with instructions to that court to determine whether the FCC can regulate “fleeting expletives” without violating the First Amendment. 

On remand, the First Amendment question is now directly in front of the Second Circuit.  Therefore, the oral argument scheduled for January 13 is expected to address whether the FCC's "fleeting expletive" indecency policy can survive First Amendment scrutiny.

We will continue to follow this important case and provide updates.

U.S. Supreme Court Vacates and Remands "Janet Jackson" Indecency Case to Third Circuit

The U.S. Supreme Court today set aside the broadcast industry's victory in the Janet Jackson indecency case.  In a two-sentence order (see case number 08-653), the Supreme Court granted the FCC's petition for writ of certiorari (we previously reported on the filing of the petition by the FCC), vacated the Third Circuit's decision that CBS owned and operated stations were not liable for the broadcast of Janet Jackson's infamous "wardrobe malfunction," and remanded the case back to the Third Circuit for further consideration in light of last week's Supreme Court decision in FCC v. Fox Television Stations, Inc.

The Supreme Court's Janet Jackson order is a disappointment to the broadcast industry, but the indecency battle will likely continue when the Third Circuit re-examines the Janet Jackson case in the future or when the Second Circuit rules upon the FCC's ability to sanction fleeting nudity in the pending NYPD Blue case.

Analysis of U.S. Supreme Court Decision Upholding FCC's Prohibition of Fleeting Expletives

In a 5-4 decision released April 28, 2009, the United States Supreme Court has upheld the FCC’s decision to find “fleeting expletives” actionably indecent in certain circumstances.  The immediate import of the decision is that even a single occurrence of the F-word or S-word outside of the safe harbor (10:00 pm to 6:00 am) may subject a television or radio station to fines up to $325,000.  We previously reported on the oral argument in this case when it occurred back in November.

The case, FCC v. Fox Television Stations, Inc., involved the single use of the F-word by Cher during the 2002 Billboard Music Awards show and the use of the F-word and S-word by Nicole Richie during the 2003 Billboard Music Awards show broadcast by the Fox Network and its affiliates.  The FCC found these uses to be actionably indecent because, following its decision in the Golden Globes decision (the Bono case), the 2003 broadcast involved a literal description of excrement and both broadcasts involved the F-word which inherently has a sexual connotation.  The FCC did not fine the Fox stations, however, because the broadcast occurred before the FCC announced its new policy regarding fleeting expletives in the Golden Globes case.

Upon review, the Second Circuit Court of Appeals held that the FCC had failed to offer a “reasoned basis” for its change in its new indecency policy.  The Second Circuit, accordingly, struck down the new policy as a violation of the Administrative Procedure Act (the “APA”) and noted that it was not necessary to reach the question whether the policy violated the First Amendment.  Nonetheless, the Second Circuit observed that it was skeptical that the FCC could articulate a rationale for the policy that would survive a First Amendment challenge.

The FCC, however, sought review of the Second Circuit’s decision by the Supreme Court, and the Court, in a very splintered decision, reversed the Second Circuit and held that the FCC’s “fleeting expletives” policy did satisfy narrow APA review.

Writing for a narrow five-justice majority, Justice Scalia stated that when an agency changes course, the course change is not subjected to a more searching review or any more heightened standard than when the agency had adopted its initial policy.  Only good reasons for the new policy need be articulated, not more substantial reasons than those required in the first instance.  Even a policy change tinged with constitutional overtones, like the fleeting expletives policy at issue here, is not to be subjected to a more stringent arbitrary-and-capricious standard of review. In those cases, the lawfulness of the policy change under the Constitution must be addressed in a separate constitutional challenge.

Applying this narrow scope of review to the FCC’s decision, Justice Scalia found that the FCC’s decision to find these two broadcasts actionably indecent was not arbitrary or capricious.  The FCC signaled it was making a change in the Golden Globes order, and its reasons for expanding the scope of its enforcement activity were deemed rational.  According to the majority, it makes sense not to distinguish between literal and nonliteral uses of offensive words, it is rational to believe that the former exception for fleeting expletives would likely lead to more widespread use of offensive language, the fact that it is now easier to bleep out offending words supports the stepped-up enforcement policy, and the FCC’s decision not to impose a forfeiture shows that the agency was not arbitrarily punishing parties without notice.

The Scalia majority rejected both the Second Circuit’s reasoning and the arguments of Fox and the other networks.  With respect to the FCC’s reliance on the harm to children, criticized by the Second Circuit, the majority stated that empirical evidence of any such harm is not necessary; all one needs to know is that “children mimic the behavior they observe.”  The Court also rejected the network’s contention that the FCC had effectively adopted a presumption of indecency, stating merely that the FCC’s “repeated reliance on context refutes this claim.”  The Court likewise did not accept the broadcasters’ characterization that the FCC’s appeal to “context” is a “smokescreen for a standardless regime of unbridled discretion.” Instead, the Court noted that its prior decision in FCC v. Pacifica Foundation approved FCC regulation based on a nuisance rationale under which context is all-important, and the APA does not mandate anything different.

Perhaps most importantly, the Scalia majority rejected the broadcasters’ argument that the FCC had gone beyond the scope of its authority as articulated in Pacifica:

[W]e have never held that Pacifica represented the outer limits of permissible regulation, so that fleeting expletives may not be forbidden.  To the contrary, we explicitly left for another day whether “an occasional expletive” in “a telecast of an Elizabethan comedy” would be prohibited.  By using the narrowness of Pacifica’s holding to require empirical evidence of harm before the Commission regulates more broadly, the broadcasters attempt to turn the sword of Pacifica, which allowed some regulation of broadcast indecency, into an administrative-law shield preventing any regulation beyond what Pacifica sanctioned. Nothing prohibits federal agencies from moving in an incremental manner.

(Emphases in original.)  Justice Scalia’s language suggests that he views Pacifica as only the opening wedge of the FCC’s authority to regulate indecency consistent with the First Amendment and not, as most observers, including the FCC itself for the first 25 years of indecency enforcement, as the confining enclosure limiting the constitutional scope of enforcement.

The majority, like the Second Circuit below, refused to the reach the First Amendment implications of the fleeting expletives policy.  Justice Scalia observed that its constitutionality “will be determined soon enough, perhaps in this very case.”  In the meantime, Justice Scalia concluded, “any chilled references to excretory and sexual material surely lie at the periphery of First Amendment concern.”

Justice Scalia was joined in the majority opinion by Chief Justice Roberts and by Justices Kennedy, Thomas, and Alito, although Justice Kennedy did not join in the section of the opinion criticizing the dissenting opinions.  Both Justice Thomas and Kennedy wrote concurring opinions.

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Supreme Court Upholds FCC's Ability to Prohibit the Broadcasting of Even a Single, Fleeting Expletive

In a question-begging 5-4 decision, a badly-fractured United States Supreme Court issued a ruling this morning in the Fox indecency case stemming from the isolated use of expletives (the “F-Word” and the “S-Word”) by Cher and Nicole Ritchie on live awards shows broadcast in prime time during 2002 and 2003.  A half dozen opinions were filed by the nine Justices on the High Court.

The FCC had determined that the broadcasts at issue were indecent, and the Second Circuit Court of Appeals had reversed the FCC on the grounds that the FCC’s decision was “arbitrary and capricious” under the Administrative Procedure Act.  Today's U.S. Supreme Court decision holds that, under the Administrative Procedure Act, the FCC’s indecency ruling was not arbitrary or capricious and that it is within the FCC’s authority to determine that even “fleeting” expletives may be indecent.

The Supreme Court’s majority opinion refused to address the First Amendment arguments made by broadcasters in this case and remanded the case back to the Second Circuit for a determination of whether the FCC’s new “fleeting expletives” policy is constitutional.  The Court’s decision means that this issue will continue to occupy broadcasters’ attention for the near future.

FCC Seeks Supreme Court Review of "Wardrobe Malfunction" Case

The FCC this week filed a petition with the U.S. Supreme Court seeking review of a federal appellate decision overturning $550,000 in fines levied by the FCC over Janet Jackson's infamous "wardrobe malfunction" during the 2004 Super Bowl halftime show.  The FCC fined CBS that amount -- representing the then-prevailing statutory maximum of $27,500 per CBS-owned station that aired the Super Bowl -- on the grounds that the split-second exposure of Janet Jackson's right breast (for 9/16 of a second) at the end of her performance was indecent.

On July 21, 2008, the Third Circuit vacated the FCC's imposition of a fine against CBS and sent the matter back to the FCC, finding that the FCC had acted arbitrarily and capriciously in concluding that the sequence was indecent.  The basis of its ruling was that the FCC had failed to adequately support the shift in its enforcement policy, which traditionally had not sanctioned fleeting or isolated depictions or descriptions of otherwise indecent material, particularly when aired during a live or unscripted program.  According to the court:

Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.  Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS.

In its petition for certiorari to the U.S. Supreme Court, the FCC took issue with the Third Circuit's characterization of its prior enforcement policy, distinguishing its treatment of fleeting expletives from its treatment of fleeting depictions of sexual organs or activity.  The FCC argues:

In the orders at issue here, the Commission explained that, while it formerly required expletives to be repeated before it would treat them as actionably indecent (which accounts for the change in policy at issue in Fox), it had never exempted the broadcast of images -- however brief -- from federal indecency restrictions.

The FCC's reference to "Fox" refers to the indecency case currently pending before the Supreme Court and that was argued just this month.  We reported on the oral argument in that case in a prior post.  The FCC goes on in its petition for review in the CBS case to ask that the Court hold the petition in abeyance until the Fox case is decided.  It may be that based on the Justices' questions and statements during the oral argument in Fox the FCC is optimistic about its prospects in that case.  Because the Third Circuit's reasoning in CBS largely tracks that of the Second Circuit's in Fox, the Supreme Court's decision in Fox may well determine the outcome of both cases.


Supreme Court Hears Argument in "Fleeting Expletives" Case

The United States Supreme Court heard oral argument in FCC v. Fox Broadcasting on Election Day 2008.  As authors of an amicus curiae brief in the case, three Brooks Pierce correspondents -- Mark Prak, David Kushner, and Julia Ambrose -- made an old-fashioned road trip to Washington to hear the argument.  In an ironic twist, our sojourn to the Nation’s capital was itself seasoned with some “fleeting” expletives, as we encountered unprecedented and extraordinarily frustrating Election Eve traffic that clogged ingress to the District for nearly an hour.  As our car inched across the Potomac, we distracted ourselves with speculation about what we -- and everyone else, from casual observers to the mainstream media -- anticipated would be a sparkling oral argument.

As it turned out, the oral argument was neither titillating nor tantalizing.  We expected an expletive-laced shootout at the OK Corral between what one critic described as “the prudish FCC and the worldly Fox,” but what we got instead was a relatively somber (and, for at least one Justice, a somnambulistic), plain-vanilla legal argument about the federal Administrative Procedure Act.  Both the Justices and the lawyers tiptoed around the very expletives that launched the case, carefully employing the euphemisms “f-word” and “s-word” in place of the (unscripted) profanities that Cher and Nicole Richie used during live broadcasts of the Billboard Music Awards in 2002 and 2003.  The Court tiptoed nearly as carefully around the First Amendment implications of the FCC’s “fleeting expletives” enforcement policy as well.

Although it is a tricky matter to speculate on the outcome of a case based only on questions posed by the Justices during oral argument, since we braved the rain and the traffic so that we’d have a front-row seat and a birds-eye view of the argument up close, we intend to do precisely that.  Here’s what we think: The Court will continue to tiptoe around the First Amendment issues lurking behind the APA question (a curiosity, as the Court typically is reluctant to review cases that, like this one as the FCC now postures it, present nothing more than run-of-the-mill application of settled legal principles) and either reverse and remand to the Second Circuit for an exploration of the constitutionality of the agency’s fleeting expletives policy or affirm the Second Circuit’s APA ruling, allow the agency to take another stab at explaining why it changed its mind about the treatment of fleeting expletives, and then take up the constitutional issues presented by the “new” policy.  Either way, there is a significant likelihood that these issues will continue to percolate in the federal courts for the next two or three years -- and that this case (together with your Brooks Pierce correspondents) may well make a return trip to Washington.

The questions from a relatively active bench (Justice Clarence Thomas, as is his practice, remained silent, as did Justice Samuel Alito) offer the following hints.  Chief Justice Roberts and Justice Scalia are sympathetic to the FCC’s argument that it offered a reasonable explanation for its change in enforcement policy -- or that, at least in the Chief’s estimation, whether the agency has in fact “shifted” its policy at all is irrelevant, since broadcasters now have a reasonable explanation for what the agency currently thinks about regulating even “fleeting” expletives.  Justice Ruth Bader Ginsburg telegraphed nearly as clearly that she would be inclined to affirm the Second Circuit, and perhaps even to agree with the Second Circuit’s belief (in dicta) that no enforcement policy that penalized fleeting expletives could withstand First Amendment scrutiny.  More than once, she characterized the FCC’s indecency enforcement regime as lacking “rhyme or reason.”  Justice Stevens may well be another vote for affirmance, and he might be in agreement with Justice Ginsburg on the underlying First Amendment issue as well; a softball question to Carter Phillips, Fox’s counsel, hinted that he’d be receptive to an argument that the First Amendment does indeed distinguish between a “fleeting” expletive and one repeated again and again -- exactly the view he outlined in his opinion in FCC v. Pacifica Foundation.  (In a humorous aside, Justice Stevens also suggested that he’d be receptive to an argument that profanity is acceptable as long as it is used to make a really, really funny joke.)  Justices Souter (who questioned the empirical support for the FCC’s shift in policy), Breyer (who questioned the practicalities of expecting small stations to avoid airing unscripted expletives in live broadcasts), and Kennedy (who asked a handful of questions that revealed nothing about his leanings) are harder to read.

Buoyed by what surely seemed like a receptive bench, the Solicitor General closed his initial argument by invoking the spectre of broadcasters run amok absent agency oversight: He envisioned a world in which Jeopardy and American Idol are overrun with profanity and Big Bird “drops the F-bomb” on Sesame Street.  Whether the Court finds the Government’s doomsday scenarios at all plausible, or whether it is troubled by the prospect of five unelected commissioners deciding what broadcast content is acceptable, are questions that won’t likely be answered by the opinion to come out of this case -- at least in this first round.

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Coda: One of the most enjoyable aspects of our trip was the opportunity for Julia Ambrose to check in with retired Justice Sandra Day O’Connor, for whom she clerked back in the 1995 Term of Court.  Julia enjoyed the chance to introduce Mark and David to Justice O’Connor, and we got a kick out of meeting and talking with her.  We were guests of the Justice for the argument and enjoyed the opportunity to spend time in her chambers.  Justice O’Connor remains full of vim and vigor.  She is keeping busy in her retirement, serving on the Board of the Rockefeller Foundation, working to protect judicial independence, advancing the cause of merit selection of judges in the state courts, and working on an educational civics project for children.