WASHINGTON — Broadcasters anticipating a major constitutional ruling on the government’s authority to regulate what can be shown and said on the airwaves instead won only the smallest of Supreme Court victories Thursday.
The justices unanimously threw out fines and other penalties against Fox and ABC television stations that violated the Federal Communications Commission policy regulating curse words and nudity on television airwaves.
Forgoing a broader constitutional ruling, however, the court concluded only that broadcasters could not have known in advance that obscenities uttered during awards show programs on Fox stations and a brief display of nudity on an episode of ABC’s “NYPD Blue” could give rise to penalties. ABC and 45 affiliates had been hit with proposed fines totaling nearly $1.24 million.
Broadcasters had argued that the revolution in technology that has brought the Internet, satellite television and cable has made the rules themselves obsolete. The regulations apply only to broadcast channels.
The justices said the FCC is free to revise its indecency policy, which is intended to keep the airwaves free of objectionable material during the hours when children are likely to be watching.
The agency’s chairman, Julius Genachowski, said the ruling “appears to be narrowly limited to procedural issues related to actions taken a number of years ago. Consistent with vital First Amendment principles, the FCC will carry out Congress’s directive to protect young TV viewers.”
It was the second time the court has confronted, but not ruled conclusively on the FCC’s policy on isolated expletives. Justice Anthony Kennedy said in his opinion for the court that “it is unnecessary for the court to address the constitutionality of the current policy.”
The narrow decision, coupled with the more than five months that elapsed between the argument in January and Thursday’s decision, could mean that the justices struggled and failed to reach agreement on a broader outcome.
Paul Smith, a First Amendment expert and partner with the Jenner and Block law firm in Washington, said the court should expect more challenges until it rules definitively.
“The issue will be raised again as broadcasters will continue to try to grapple with the FCC’s vague and inconsistent enforcement regime,” said Smith, who wrote a brief supporting the broadcasters.
The case arose from a change in the FCC’s long-standing policy on curse words.
For many years, the agency did not take action against broadcasters for one-time uses of curse words. But after several awards shows with cursing celebrities in 2002 and 2003, the FCC toughened its policy.
Other rulings
Drug sentencing: The Supreme Court ruled 5-4 that people who committed crack cocaine crimes before more lenient penalties took effect and received their prison sentence afterward should benefit from the new rules.
Southern Union: The justices threw out an $18 million penalty against a natural gas company convicted of violating an environmental law. The court voted 6-3 in favor of Texas-based Southern Union Co. in an appeal of a penalty imposed for its improper storage of mercury in Pawtucket, R.I.
Union fees: The justices ruled 7-2 that unions must give nonmembers an immediate chance to object to unexpected fee increases or special assessments that all workers are required to pay in closed-shop situations.
