2011-2012 Supreme Court Term: FCC v. Fox Television Stations, No., 10-1293 (Vagueness, Freedom of Expression)

The last time this case came before the Supreme Court in 2009 it was for “fleeting expletives” uttered by Cher at the 2002 Billboard Music Awards broadcast by Fox and by Nicole Richie and Paris Hilton at the same event in 2003.  The Supreme Court decided that case not on constitutional grounds but rather under principles of administrative law.  This time the case comes before the Court because of a scene of nudity - a boy watching a woman entering the bath naked - and the constitutional issues are squarely before the Court.  ABC showed this scene on a program at 9:00 in the evening instead of waiting one more hour when it would have been allowed under F.C.C. guidelines.

An F.C.C. regulation prohibits a radio or television broadcast station from broadcasting "any material which is indecent" between the hours of 6:00 a.m. and 10:00 p.m.  On February 5, 2003, the ABC Television Network broadcast an episode of NYPD Blue entitled "Nude Awakening" at 9:00 in the evening - prime time, when it may charge more for advertising.  The title of the episode is a reference to the "sexual awakening" of a young boy who sees an adult woman living in his home enter a shower naked.  The scene lasted seven seconds.  Had the network chosen to broadcast the episode an hour later it would have been permitted.  As it was, the F.C.C. fined the 44  network affiliates that carried the episode the maximum penalty of $27,500 apiece, a total of $1.2 million.  The Second Circuit Court of Appeals reversed the agency's decision on the ground that the FCC guidelines are unconstitutionally vague.  The FCC appeals from this decision, contending that the guidelines are not vague and that the broadcaster did not have the right under the First Amendment to broadcast this scene at this time of the day.

The FCC guidelines defining "indecency" were revised in 2001.  The guidelines currently provide that a broadcaster is not permitted to “describe or depict sexual or excretory organs or activities” in a manner that is “patently offensive as measured by contemporary community standards.”  A broadcast will be considered to be “patently offensive” based on three factors:  (1) “the explicitness or graphic nature of the description or depiction”; (2) “whether the material dwells on or repeats at length” the description or depiction; and (3) “whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.”

The principal case governing this subject is F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978), in which the Court upheld the power of the F.C.C. to prohibit a radio station from broadcasting George Carlin’s “Seven Dirty Words” monologue during daytime hours.  The Court articulated two principal reasons in support of its ruling.  First, broadcast frequencies are a scarce resource that are of necessity licensed by the government to broadcasters for their exclusive use, and that therefore the government is justified in regulating that use in the public interest.  Second, radio and television broadcast signals are pervasive and intrusive; the signals are broadcast into our homes and automobiles, and it is therefore appropriate to protect children and other unwilling listeners from exposure to indecent programming.  Accordingly, ruled the Court, the F.C.C. could constitutionally prohibit "indecent" broadcasts during daytime hours.

One of the problems in this case is that the communications industry has undergone a tremendous shift in the three decades since Pacifica was decided.  Today only 10% of American households receive television signals over the air; most of the rest receive television signals via cable.  Furthermore, government regulations confer significant advantages on the television broadcast media to keep them in business.  Federal law provides that cable operators “must carry” broadcast television programmers and give them preferred positions in the assignment of cable channels.  

The broadcaster contends that the scarcity of television broadcast frequencies is no longer an important factor and should not warrant government regulation of content.  The F.C.C. responds that radio is still pervasive and intrusive and that it is important to preserve the broadcast channels on cable as an island of decency during the daytime on cable television.

Tomorrow: a summary of oral argument in this case.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.