High Court Ruling Resets Indecency Rules

On April 28, the U.S. Supreme Court, by the smallest possible 5-4 majority, issued its landmark decision in FCC v. Fox, a major broadcast indecency case. The majority opinion by Justice Scalia upheld and ratified the FCC's new policy of holding stations liable for the nonliteral use of isolated "fleeting expletives," even in live unscripted programming. A nonliteral use of a curse word is not for the sake of its literal meaning, but for emphasis or as an intensifier (for instance, Bono's use of "f-ing brilliant" to describe his Golden Globe award on-air).

The other four Justices joined in a vigorous dissenting opinion by Justice Breyer, and several issued their own opinions as well.

The Supreme Court sent the case back to the Second Circuit Court of Appeals in New York to address First Amendment issues, which are a gaping hole in the Fox ruling, as noted by the Justice Breyer dissent in Fox. Ultimately, the Supreme Court will review the New York court's treatment of the censorship and First Amendment issues.

But for now, the majority opinion gives a green light to the FCC to continue its vigorous enforcement against indecency on the airwaves, including one-time isolated use of the F and S words (among others) in live unscripted programming. Earlier, use of the words had to be deliberate and repetitive to warrant sanction. Now they don't. This means that stations should redouble their efforts to avoid the high fines that can be levied for violations (though none were assessed in Fox because the change in policy was new then).

Acting Chairman FCC Michael Copps welcomed the ruling as a "big win for America's families," which "should reassure parents that their children can still be protected from indecent material on the nation's airwaves." It will be interesting to see whether Judge Sonia Sotomayor, President Obama's nominee to replace retiring Justice David Souter, is asked about indecency enforcement during her upcoming Senate confirmation hearings.

The majority opinion also:

• Eliminated the literal/nonliteral distinction, opening the door wider to large fines.
  
• Lowered, perhaps for all federal agencies, the extent of justification required for changes in prior policy. In effect, the decision says all that is required is the same level of explanation as for any other new agency action that does not involve reversal of longstanding precedent.
  
• Used availability of bleeping technology to support stepped-up enforcement.
  
• Reasoned that if all fleeting expletives were allowable there would be many more on the air, based on "logic, not clairvoyance." An image of "bad" words stacked up one at a time was also used.

In light of the ruling, stations can take steps to avoid getting hit with an indecency fine. They can:

• Confine programming that might involve indecency to the congressionally-set "safe harbor" of 10 p.m. to 6 a.m. Note that this is of no avail regarding obscene material, whose broadcast is always prohibited at all times.
  
• Use bleeping and other technology, such as delayed broadcast, to allow deletion. (In the dissenting opinion by Justice Breyer, he argued that the technology might be too costly for smaller stations.)
  
• Train broadcast personnel who appear on-air or who support on-air operations how to avoid inadvertent indecent broadcasts in non-safe harbor times. Have a written policy on indecency and obscenity and require personnel to acknowledge their receipt of the policy in writing periodically.

• For on-air talent and guests, require them to agree in writing not to violate the indecency ban and to indemnify the station against the costs if they do.
  
• Stay attuned to developments in the leading legal cases and to proceedings at the FCC affecting stations vis a vis indecency. The pending FCC inquiry as to implementation of the Child Safe Viewing Act, which examines use of parental control technology for video and audio programming, is an example. Parental controls are one alternative, potentially, to vigorous FCC enforcement.
  
• Be aware of the legal definition of indecency, even though it is only part of the total picture: "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, at times of the day when there is a reasonable risk that children may be in the audience."

Separately, the high court remanded -- sent back -- the Super Bowl Janet Jackson "wardrobe malfunction" case to the Third Circuit Court of Appeals in Philadelphia for further consideration in light of the ruling in Fox. Both cases will likely go back to the Supreme Court after new appeals court rulings.

Indecency laws apply equally to radio and television. Though the pending lead cases are now TV, be aware that they apply fully to radio as well.

This column on TV law and regulation by Michael D. Berg, a veteran Washington, D.C., communications lawyer and the principal in the Law Office of Michael D. Berg, appears periodically. He is also the co-author of FCC Lobbying: A Handbook of Insider Tips and Practical Advice. He can be reached at mberg@michaelberglaw.com or 202-298-2539.