ABC, Fox Escape Penalties for Airing 'Fleeting Expletives' and Brief Nudity

Supreme Court Decides Against FCC Penalties as Networks Were Not Given Proper Notice

By Stoyan Zaimov, Christian Post Reporter Friday, June 22, 2012

The U.S. Supreme court tossed out Thursday penalties the Federal Communications Commission (FCC) had issued against ABC and Fox for showing brief nudity and expletives, with justices stating that the TV networks were not provided proper notice of the federal policy barring such broadcasts.

"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," said Justice Anthony Kennedy in the Court's opinion, the Baptist Press reported. "Therefore, the Commission's standards as applied to these broadcasts were vague, and the Commission's orders must be set aside."

Fox had allowed f-words and s-words to be said during live broadcasts in 2002 and 2003, while ABC aired a 2003 broadcast including partial female nudity. The networks, apparently unaware of the FCC's prohibition on indecent images or inappropriate language being aired, were spared from its penalties in an 8-0 decision by the Supreme Court, which also supported the TV networks' claims that the FCC policy was too vague.

To support claims that the FCC's policy is vague, example footage was shown from Steven Spielberg's "Schindler's List" film, which depicts nudity in the holocaust camps and has been aired by a number of different networks in the past without penalty.

Despite the Supreme Court's overwhelming decision to spare ABC and Fox of the penalties, the FCC will still be allowed to keep its indecency policy if it makes changes to help clarify the system.

"This opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. It also leaves the courts free to review the current policy or any modified policy in light of its content and application," Justice Kennedy added.

The decision is said to have come as good news to all parties involved, as TV watchdogs wishing to preserve the bans on profanity and indecency on American TV also saw the justices' decision as a victory.

"Today's narrow decision by the U.S. Supreme Court does not call into question the Commission's overall indecency enforcement authority or the constitutionality of the Commission's current indecency policy," stated FCC Commissioner Ajit Pai. "Rather, it highlights the need for the Commission to make its policy clear. I look forward to working with my colleagues to provide the clarity that both parents and broadcasters deserve. At this point, the best way for us to proceed is to get to work resolving the multitude of indecency complaints that have piled up during this litigation."

Concerned family groups also reacted to the Supreme Court's decision.

"Once again the Supreme Court has ruled against the networks in their years-long campaign to obliterate broadcast decency standards," said Tim Winter, president of the Parents Television Council. "The Court ... specifically acknowledged the FCC's ability to continue broadcast decency enforcement as part of its public interest obligation."

Winter continued, "Broadcast decency rules have existed to protect children since the dawn of the broadcast medium. It is for their sake that there will still be decency rules and the TV networks will be required to abide by them."

Family Research Council President Tony Perkins was also pleased with the decision.

Perkins wrote, "Today, the U.S. Supreme Court gave the FCC the green light to continue imposing indecency fines on the networks for fleeting expletives and brief nudity. When a similar case goes before the Supreme Court again for fines imposed for any future violations, we expect the Court to once again decide that fleeting expletives and brief nudity are not protected under the First Amendment.

"The public airways are just that – public. The networks using them have a moral duty to the American public to responsibly provide content that is acceptable for all viewers. This is not a heavy burden for those whose television and radio licenses provide them with substantial profits."

Representative Greg Walden, R-OR, Chairman of the Communications and Technology Subcommittee of the House Energy & Commerce Committee, explained that the Court's decision highlights the need for the FCC to conduct its business through a more transparent and orderly process.

"How much longer can we allow bad process to produce bad results? The time is now for reform, such as those included in the FCC Reform Act. In the meantime, today's ruling reinforces the responsibility of broadcasters to represent their communities. Most of them know and do the right thing, and we urge them to continue to listen to the public and uphold appropriate community standards that protect families and children," Walden said in a statement published by the National Religious Broadcasters (NRB).