There were bachelor and bachelor-ette parties, strippers and whipped cream. And while the portrayals, many pixilated, proved sufficiently graphic to have aroused blue-penciled government censors, in the end, it wasn’t just clothes on-screen that got dropped. The Justice Department has yanked its suit against Fox Broadcasting for failing to pay a Federal Communications Commission (FCC) indecency fine stemming from a 2003 Fox show “Married with America.” The FCC slapped Fox with more than $1 million in fines after its stations aired a racy episode showcasing exotic dancers. Fox and the feds, ultimately, were disputing a few thousand dollars in fines over the terpsichorean entertainment. But that was before the Supremes stepped in over the summer on indecent broadcasting. Let’s strip to the facts in this case:
In June, the U.S. Supreme Court held that the FCC could not enforce current policies against past transgressions and must give “fair notice” before taking action against “fleeting expletives” and nudity on live or scripted television programs. The court noted the FCC had offered rules against fleeting expletives in 2004, one year later than when the indecent actions charged against Fox and ABC occurred. Justice Anthony Kennedy wrote “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” The broadcasters lacked notice in 2003 that brief nudity or fleeting expletives could be actionable, so the FCC violated their rights to due process under the Fifth Amendment.
“Fleeting expletives” are nonscripted verbal or visual indecencies expressed during a live broadcast. The high court, in FCC v. Pacifica Foundation, the 1978 landmark case involving the “Seven Words You Can Never Say on Television,” defined indecency as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.”
The problem is that the justices, overturning a federal appeals court finding in favor of the networks in 2009, ruled that the FCC is allowed to regulate the use of fleeting expletives on television. The Court did not settle the First Amendment question regarding censorship of broadcasts by a federal agency but rather suggested this should be dealt with by a Federal Appeals Court. In 2010, the Second Circuit called the FCC “fleeting expletive” policy unconstitutionally vague. This past July, the Supreme Court again dodged the issue when it held that the FCC could not charge the networks because of fair notice and due process concerns.
With Justice bowing out of the Fox fine, it remains for yet another day for the First Amendment question to be settled and there have been no new indecency cases put up since Julius Genachowski, the current FCC chair, was appointed by President Obama in 2009. The FCC regulates interstate and international communications by radio, television, wire, satellite and cable. This independent agency, overseen by Congress, has five commissioners, each appointed by the president and confirmed by the Senate, each with five-year terms, and only three of whom can be affiliated with any particular political party at the same time. Chief among the FCC’s missions are the promotion of “competition, innovation, and investment in broadband services and facilities” and the support of “the nation’s economy by ensuring an appropriate competitive framework for the unfolding of the communications revolution.”
Genachowski, who has talked about broadband internet facilitation and preserving Internet free speech and free enterprise, said of the most recent Justice decision: “In the wake of the Supreme Court’s decision in Fox v. FCC, the commission is reviewing its indecency enforcement policy to ensure the agency carries out Congress’s directive in a manner consistent with vital First Amendment principles.”