When the Supreme Court issued its decision last week in FCC v. Fox Television Stations, Inc., it was hard to tell the winners from the losers. The big networks like ABC, Fox, NBC, and others had argued that the FCC’s broadcast indecency rules, that banned indecent sexual content over the airways from 6:00 a.m. to 10:00 p.m. (the hours when children are likely to be listening or watching), created an unconstitutional free speech “chilling effect.” Previously, the Second Circuit Court of Appeals in New York had happily embraced that argument and struck the rules down. However, last Thursday the Supreme Court reversed that decision, refusing to adopt the kind of execution-by-broadsword that had been levied by the lower court against the indecency rules. Nor did the High Court agree with the argument from the big networks that the 1978 Pacifica court decision – the defining case that affirmed the FCC’s authority to deal with indecent speech or images on radio and TV – should be abandoned. And in fact the Supreme Court cited Pacifica numerous times in last week’s decision, and four times selected quotes from that older case mentioning the interest of the FCC in protecting children, a point that NRB had advanced in our Amicus Curiae (“friend of the court”) brief that we filed in this case.
What the High Court did say, favorably to the networks, is that the FCC erred when it retrospectively applied its 2004 order forbidding even “fleeting” (non-repetitious) indecent words and images to broadcasts that had occurred during 2001-2003 broadcasts. Thus, the Court’s extremely narrow ruling was not on the basis of the First Amendment, but rather, rested on “Due Process” grounds – the “due” part meaning that broadcasters must be given due and proper notice of the rules that they are bound to obey. For readers desiring more detail on this court decision, they can click on to my expanded analysis. The most intriguing part of the Court’s decision was saved for the end, where it suggested that the FCC is “free to modify the current indecency policy …” Now that the FCC has received the benefit of the legal arguments of the big broadcasters, and the supportive but instructive briefing by groups like NRB, it would be well-advised to take this opportunity to “batten the hatches” on these rules, and set them out in a single regulatory pronouncement that is easier to understand and to apply. Soon enough, the hurricane season will be beating upon the FCC’s embattled indecency rules once again.
Senior Vice President & General Counsel
National Religious Broadcasters
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