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Analysis: What’s next on “indecent” broadcasts?


Within a matter of days, the Supreme Court is expected to take the next step toward fully clarifying the government’s power to control “indecency” on radio and television — moving from words to images, and, specifically, from four-letter swear words to a “wardrobe malfunction” that briefly exposed a female performer’s breast.  But looming over either kind of regulation is the prospect of a future constitutional ruling that ultimately could shield broadcasters from much, if not all, of government control of on-air “indecency” — a ruling that could come over the next year or two.

The Court set the stage for these further developments with its 5-4 ruling Tuesday in Federal Communications Commission v. Fox Television Stations, et al. (07-582) — a comparatively narrow ruling that actually resolved very little about how far the FCC ultimately may be able to go to monitor and even to punish profanity or nudity in on-air broadcasting.

What was most vivid about the ruling was the strong indication that, among the nine present members of the Court, it is quite easy to imagine a majority coming together to nullify the FCC’s present policy that amounts to a nearly total ban on broadcast of “fleeting expletives” — single utterances of the “F-word” and the “S-word.” (It may be too early, however, to imagine a majority to nullify another branch of FCC’s current policy — its ban on “fleeting nudity,” or brief exposures of a female breast or a male sex organ on TV.)

Justice Antonin Scalia’s opinion Tuesday, deciding the Fox TV case, read very much like an endorsement of the FCC’s current policy so far as it applied to the broadcast of fleeting four-letter words.  The opinion said that FCC had provided an adequate explanation for switching to that ban from a more tolerant policy that had stood for decades.  The case now returns to the Second Circuit Court, for a ruling there or a referral back to the FCC for a decision on the broadcasters’ constitutional challenges to the “fleeting expletive” policy.

Tuesday’s ruling, however, did not address broadcasts of fleeting nudity.  But, with the Fox TV decision now made, the Court is expected soon to take a new look at a pending case, FCC v. CBS Corp., et al. (08-653), that involves brief exposures of nudity on TV.

This is the celebrated dispute over what the FCC has called “the most widely viewed display of public indecency in television history.”  It involved the nine-sixteenths of a second exposure of the breast of performer Janet Jackson during a halftime show at pro football’s Super Bowl broadcast on Feb. 1, 2004.  The FCC punished CBS-TV, where the show aired, with a fine totaling $550,000.

The Third Circuit Court nullified the fine, and the underlying policy, concluding that the FCC had not justified a switch from a former policy that the Circuit Court said was more tolerant of fleeting nudity.

That “wardrobe malfunction” case has been ready for the Supreme Court to act upon it since late February, but so far the Justices have taken no action on it.  They apparently accepted the FCC’s suggestion that the Justices take no action until after they had decided the Fox TV case, and then move on the CBS-TV case.

The Court will now do so.  It has the options of sending the CBS-TV case back to the Third Circuit for a new look in the wake of Tuesday’s decision on expletives, to deny review and thus allow the FCC to look for a way to sustain its anti-nudity policy to satisfy the Third Circuit ruling, or to grant review and decide the case at the Justices’ next Term starting in October.

The Fox TV case and the CBS-TV case are different in several, perhaps decisive ways: the fleeting words case did not involve any punishment, while the fleeting nudity case brought a fine of $550,000; the fleeting words case did not involve an issue over whether the TV networks were responsible for those utterances, while the fleeting nudity case has serious questions about whether the network can be held liable for the actions of the Super Bowl halftime performers, and the fleeting words case did not involve any dispute about whether FCC had switched its policy, while the fleeting nudity case does include a dispute over whether the Commission changed policy or had always had a policy of banning exposures of nudity.

Each of those differences could be crucial in shaping the Supreme Court’s response, or the response of the Third Circuit, as the CBS-TV case develops further.  Both do involve constitutional questions over the FCC’s authority to regulate brief broadcasts of what the FCC considers to be indecent material.

And, on that constitutional point, the ruling Tuesday seemed to have major potential — in favor of broadcast freedom.  Justice Clarence Thomas wrote an opinion strongly implying that the Court should now reopen the whole question of whether radio and TV should have less First Amendment protection than, say, newspapers.  And the four dissenters indicated that the FCC ban was subject to deep constitutional doubt, and probably could only be salvaged by being interpreted to tolerate brief exposures of profanity or nudity.  (The four dissenters were Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.)

If, or when, the Court does renew that constitutional debate, it seems unlikely that Justice Anthony M. Kennedy, a strong supporter of the First Amendment (but who withheld his views on the Amendment’s application to fleeting expletives), would vote against the constitutional claims of the broadcasters, thus bolstering their potential challenge.

The constitutional debate over FCC policy, though, will shift — for the time being — to the Second Circuit in the Fox TV case.  Lawyers for broadcasters have already crafted their First Amendment claims against the FCC policy; they laid them before the Court in the Fox TV case in hopes of getting the Justices to rule now on them.  The Justices declined to do so.  But the lawyers will have a very simple task of recycling those same arguments for the next forum.

The Second Circuit, though, may not have the last word on this.  The constitutional debate may well wind up back in the Supreme Court, down the road in a year or two.