Supreme Court Blinks Again at FCC Indecency Policy

      For the first time ever, the major broadcast television networks failed to win any nominations in this year’s Emmy awards for outstanding drama. Whose fault is that? The Supreme Court’s, at least in part.
      Blaming The Nine for the pallid fare from ABC, CBS, Fox, and NBC may seem to be a stretch. But the Supreme Court has contributed to the networks’ timidity by leaving in place the Federal Communications Commission’s indecency policy with its threat of substantial financial penalties for broadcasting even a single obscenity or a few seconds of adult nudity.
      True, the Court this year rejected the $1.2 million fine that the FCC imposed on ABC stations for seven seconds of adult nudity in an episode of the acclaimed police drama NYPD Blue in 2003. The 8-0 ruling in FCC v. Fox Television Stations [June 21] also erased the no-penalty sanction against Fox affiliates for the fleeting expletives that entertainers Cher and Nicole Richie uttered during the Billboard Music Awards in 2002 and 2003 respectively.
      The justices appear to have achieved unanimity, however, only by skirting the hard constitutional issue that divided them during oral arguments five months earlier. Instead of confronting that issue, the Court ruled that the networks had no fair warning of the changed policy that the FCC was to adopt in 2004.
      Three years earlier, the Court had also declined to rule on the constitutional issue. Instead, by a 5-4 vote, the Court held in Fox I that the FCC had adequately justified its change of policy and told the federal appeals court in New York to rule first on the First Amendment issue. The appeals court ruled the policy unconstitutionally vague, setting the stage for a second Supreme Court hearing.
      The Court decided the case this year on due process instead of free speech grounds. Justice Anthony M. Kennedy ended his opinion for the Court by saying it was up to the FCC to determine whether to modify or retain its policy. Separately, Justice Ruth Bader Ginsburg, writing only for herself, went further and called for the Court to reconsider the 1978 decision, FCC v. Pacifica Foundation, that upheld the FCC’s power to punish broadcasters for indecency at all.
      The FCC got a different signal at the end of the term from none other than Chief Justice John G. Roberts Jr. Following the lead from the ABC and Fox cases, the Court declined to hear the FCC’s effort to reinstate the $550,000 penalty against CBS affiliates for Janet Jackson’s breast-baring “wardrobe malfunction” during the 2004 Super Bowl. But Roberts took the occasion to state his view that the FCC’s stringent policy is now established law. “It is now clear that the brevity of an indecent broadcast— be it word or image— cannot immunize it from FCC censure,” Roberts wrote.
      The Super Bowl and music awards programs have gotten most of the attention as these cases have traveled slowly from the FCC up to the Supreme Court and then back down. But the NYPD Blue case warrants more attention for the chilling effect that the FCC’s indecency policy may be having on the networks’ program creators and programming executives.
      In adopting the new indecency policy, the FCC included exceptions for bona fide news and for “artistic necessity.” The NYPD Blue episode, entitled “Nude Awakening,” would seem to have been a candidate for the latter exception. The opening sequence shows the young son of Detective Andy Sipowicz walking in on his father’s nude girlfriend, fellow detective Connie McDowell, in the bathroom as she prepares to take a shower. McDowell’s bare buttock and bare breast are visible for a total of seven seconds.
      The writers used the incident later in the program to explore issues of awakening sexuality and parent-child relationships. But the FCC decided that the onscreen nudity lasted too long and the camera shots were too close range. The whole scene, the commission said, was “pandering, titillating, and shocking.”
      If FCC regulators are going to examine a bare butt that closely, one can understand that program creators will take extreme care to avoid fleeting body parts as well as fleeting expletives on the broadcast networks. Caution is indicated all the more because the FCC has been anything but consistent in applying the policy. The movies Schindler’s List and Saving Private Ryan managed to get by the FCC indecency police despite graphic images and language, but the PBS documentary The Blues: Godfathers and Sons got slapped because the bluesmen used the “F” and “S” words. “It's like nobody can use dirty words or nudity except for Steven Spielberg,” Justice Elena Kagan remarked during Supreme Court arguments.
      The policy applies only to broadcasters, however, not on cable, where anything goes. Predictably, cable channels have more venturesome programming than the TV networks— and thus all of the Emmy nominations for drama announced last week [July 19]. But even the young viewers supposedly being protected by the indecency policy know how to surf seamlessly between broadcast and cable channels.
      Some of the justices recognized these real-world considerations during the arguments in January. For now, however, the Court is leaving the FCC free to apply the indecency policy to the million and a half pending indecency complaints – with the courts to intervene later to try to prevent undue harm to the First Amendment.