Supreme Court Overrules Fine For Naked Butt On TV; Punts On 1st Amendment Question

from the indecently-speaking dept

We've been following a series of cases over the past few years concerning the FCC's attempt to fine TV stations for "indecency." These cases include "fleeting expletives" like Bono cursing during an awards show ("this is fucking brilliant") to fleeting nudity like the Janet Jackson wardrobe malfunction... and, the case that just got decided: NYPD Blue's episode where actress Charlotte Ross is shown getting ready for a shower, dropping her robe and having her bare buttocks on screen for approximately seven seconds. As we noted, when the FCC originally went after ABC for this footage, it helped drive millions of people to go seek out the footage online, getting her butt a lot more attention than if they'd just let it go. Either way the case has meandered through the courts, with an early decision saying the policy was a First Amendment problem and a later ruling striking down the fine.

Some of the cases involving both fleeting expletives and fleeting nudity got merged into one along the way. The Supreme Court actually already had this case a few years ago and rejected one of the lower court decisions that found the policy "arbitrary and capricious," but failed to rule on whether the fine was legal. The appeals court, on remand, still tossed out the ruling, now saying that if the policy wasn't arbitrary and capricious, it was too vague.

The Supreme Court has now agreed (pdf), and rejected the FCC's fine.
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.
That said, the Court (as it has been doing with annoying regularity these days) was very, very careful to try to make the scope of the ruling as narrow as possible. In this case, it specifically refused to rule on the First Amendment question of whether or not the FCC's indecency policy violated the First Amendment. That's too bad. Justice Ginsburg did issue a very, very brief concurrence, in which she suggested that the Court really ought to review its original ruling (FCC v. Pacifica) which established that the FCC could issue fines for indecency on TV. In other words, she seems to think that it's time to review the First Amendment question:
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.
Furthermore, even in the majority opinion, there are hints of concern about the First Amendment issues raised here:
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”).
Hopefully, this means that if the First Amendment question does finally come before the court, it's ready to overturn that earlier ruling. Of course, I'm still amazed at how this very same Supreme Court always seems to ignore the "obvious chilling effect" issue when it comes to cases involving copyright law... but that's another story for another post.

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  1. identicon
    DCX2, 22 Jun 2012 @ 9:25am

    SCOTUS are C students

    If I had to grade SCOTUS I would give them a C-. They do just enough work to pass the class, but no more.

    It's truly disappointing. Imagine if SCOTUS had ruled a few years ago on the First Amendment question. How much in lawyers fees would have been saved? How much speech would not have been chilled?

    SCOTUS clearly cares more about the procedural issues than the Constitutional issues, or even the damage that is happening and will continue to happen until someone else gets sued and spends the $$$ to go through multiple levels of appeals to get back to SCOTUS, only to have their case punted again on a technicality...

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