Supreme Court Ducks Free Speech Issue in FCC Case

By Matt Cover | June 21, 2012 | 5:50 PM EDT

(AP Photo)

( – The Supreme Court declined to rule on whether the Federal Communications Commission’s (FCC) ban on so-called fleeting expletives was too vague to withstand First Amendment scrutiny. Instead, it ruled that the FCC had been unconstitutionally arbitrary in applying the standard to broadcasters.

The case, Fox v FCC, revolved around several incidents that the FCC said violated federal laws banning indecency in broadcasting. The Second Circuit Court of Appeals had declared the regulation an unconstitutional violation of the First Amendment, stressing that technological development had changed the American media landscape, knocking broadcast television from its special role of having a “uniquely pervasive presence” in the lives of Americans.

Traditionally, the government is allowed to regulate speech over broadcast radio and television, on the grounds that broadcasts reach the vast majority of Americans.

In its ruling, the Second Circuit said that the FCC’s policy banning the fleeting or incidental broadcast of expletives or nudity was unconstitutionally vague, arguing that because the policy was vague, it chilled free speech.

“By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive,” the Second Circuit ruled.

“To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment,” said the Second Circuit.

The FCC appealed this decision, maintaining its argument that its definition of what is and is not indecent is not unconstitutionally vague.

The Supreme Court, however, declined to take up the issue. Instead it ruled that the FCC had applied its rules on fleeting expletives and indecency in an arbitrary and capricious manner – saying that it had violated the Fourth Amendment rights of broadcasters when it failed to give them fair warning.

The Court avoided deciding the First Amendment issues of the case.

“Here, the Court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the Court to address the constitutionality of the current indecency policy,” Justice Anthony Kennedy wrote in a unanimous opinion.

Justice Sonia Sotomayor recused herself from the case because she was a member of the Second Circuit when the lower court heard the case.

The Supreme Court did issue a warning of sorts to the government, saying that while it would not decide whether FCC policy violates the First Amendment, the ruling did not preclude the FCC from rewriting its regulation, nor did it preclude other federal courts from ruling on the free speech issue.

“[T]his opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaves the courts free to review the current policy or any modified policy in light of its content and application.”