June 26, 2012

Supreme Court Sets Aside Indecency Findings for Fleeting Expletive and Nudity Without Reaching First Amendment Issues; Indecency Law Remains Muddy

Arnold & Porter Advisory

Last Thursday, June 21st, the Supreme Court released its much awaited decision concerning the constitutionality of the FCC's indecency policies. The hope was that the decision would provide clarity and guidance with respect to the Commission's enforcement of the statutory prohibition on the broadcast of indecent material between the hours of 6 am and 10 pm. However, the Court avoided addressing the First Amendment issues, including whether the decades old decision in FCC v. Pacifica Foundation, which upheld the FCC constitutional authority to sanction broadcasters for the broadcast of indecent material, remained valid in light of the change in the media environment. It held that the FCC's indecency findings concerning the fleeting use of the F-word on Fox network broadcasts of Billboard Award programs and the portrayal of nude female buttocks and the side of a breast on an NYPD Blue episode violated the Due Process Clause of the Constitution because neither Fox nor ABC was given adequate notice that the material might be indecent. Justice Ginsberg concurred in the judgment and wrote that the Court should have reviewed and reversed the Pacifica decision.

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