The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission's untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.

This would be true with respect to a regulatory change this abrupt onany subject, but it is surely the case when applied to theregulations in question, regulations that touch upon “sensitive areas of basic First Amendment freedoms,” Baggett v. Bullitt, 377 U. S. 360, 372 (1964); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 870–871 (1997) (“The vagueness of [a content-based regulation of speech] raises special First Amendment concerns because of its obvious chilling effect”).

"Sign me up as supporting Justice Kennedy's notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts. It's a symbolic matter...These are public airwaves, the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth."

He said government often fails when it gets into the business of trying to understand context, as it purportedly did when it fined ABC for showing fleeting nudity on NYPD Blue.

"Right now, the commission has pending before it... complaints about the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks," he told the Supreme Court.

Waxman then pointed around the room. "There's a bare buttock there and there's a bare buttock here."

As the crowd snickered, Scalia admitted that he hadn't noticed it before now.

The first problem arises in the FCC's determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that "bullshit" in a "NYPD Blue" episode was patently offensive, it concluded that "dick" and "dickhead" were not.... Other expletives such as "pissed off," "up yours," "kiss my ass," and "wiping his ass" were also not found to be patently offensive. ... The Commission argues that its three-factor "patently offensive" test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission's reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word "bullshit" is indecent because it is "vulgar, graphic and explicit" while the words "dickhead" was not indecent because it was "not sufficiently vulgar, explicit, or graphic." This hardly gives broadcasters notice of how the Commission will apply the factors in the future.

The English language is rife with creative ways of depicting sexual or excretory organs or activities, and even if the FCC were able to provide a complete list of all such expressions, new offensive and indecent words are invented every day.

This strategy had its limitations -- it meant that some indecent speech that did not employ these seven words slipped through the cracks. However, it had the advantage of providing broadcasters with a clear list of words that were prohibited. Not surprisingly, in the nine years between Pacifica and the FCC's abandonment of this policy, not a single enforcement action was brought. This could be because we lived in a simpler time before such foul language was common. Or, it could be that the FCC's policy was sufficiently clear that broadcasters knew what was prohibited.

The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC's crusade against indecent speech, but it does not provide a justification for implementing a vague, indiscernible standard. If the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so. And while the FCC characterizes all broadcasters as consciously trying to push the envelope on what is permitted, much like a petulant teenager angling for a later curfew, the Networks have expressed a good faith desire to comply with the FCC's indecency regime. They simply want to know with some degree of certainty what the policy is so that they can comply with it. The First Amendment requires nothing less.

Even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment. Take, for example, the disparate treatment of "Saving Private Ryan" and the documentary, "The Blues." The FCC decided that the words "fuck" and "shit" were integral to the "realism and immediacy of the film experience for viewers" in "Saving Private Ryan," but not in "The Blues." .... We query how fleeting expletives could be more essential to the "realism" of a fictional movie than to the "realism" of interviews with real people about real life events, and it is hard not to speculate that the FCC was simply more comfortable with the themes in "Saving Private Ryan," a mainstream movie with a familiar cultural milieu, than it was with "The Blues," which largely profiled an outsider genre of musical experience. But even if there were a perfectly benign way of explaining these particular outcomes, nothing would prevent the FCC from applying its indecency policy in a discriminatory manner in the future.

For instance, several CBS affiliates declined to air the Peabody Award-winning "9/11" documentary, which contains real audio footage -- including occasional expletives -- of firefighters in the World Trade Center on September 11th. Although the documentary had previously aired twice without complaint, following the Golden Globes Order affiliates could no longer be sure whether the expletives contained in the documentary could be found indecent.

How come the latest stats, in this instance for the first quarter of this year, show the viewers relatively calm at 578 complaints in January, then 505 in February, followed by 179,997 in March?

179,997? Um, did we miss something? Did television really get that much more indecent in March? No worries. In these situations, we know what to do. We go over and check out the Parents Television Council's website. And sure enough, there's a plausible instigator--a PTC viewer action alert crusade against a March 8 episode of the animated comedy show the PTC just loves to hate, Fox TV's Family Guy.

The FCC quietly and without major notice made two methodological changes to its tallying of broadcast indecency complaints in 2003 & 2004 that PTC requested:

• On July 1, 2003, the agency began tallying each computer-generated complaint sent to the FCC by any advocacy group as an individual complaint, rather than as one complaint as had been done previously. The advocacy group benefiting from that change had challenged the FCC to make the change by June 30th and boasted later that it was responsible for the FCC's redirection, citing reassurances of FCC commissioners.
• In the first quarter of 2004 -- the time when the Super Bowl incident with Janet Jackson occurred -- the FCC began counting complaints multiple times if the individual sent the complaint to more than one office within the FCC. This change, which had the capability of increasing by a factor of 5 or 6 or 7 the number of complaints recorded, was noted in a footnote of that quarter's FCC Quarterly Report. The footnote acknowledged that "[t]he reported counts may also include duplicate complaints or contacts..."

As I have made clear before, I have absolutely no problem with the PTC, or any other advocacy group exercising their First Amendment rights to petition their government and make their views known. What I do have a problem with -- a very big problem, in fact -- is when one group so disproportionately influences the process, especially by changing the way complaints are counted.

More shockingly, as far as I can tell, the FCC only made these methodological changes for indecency complaints, not for any other category of complaints that the agency receives! Finally, and probably worst of all, these bogus numbers were then used by FCC officials and congressional lawmakers as supporting evidence for the supposed public outcry for more regulation of television and radio.