The Supreme Court ruled 5 to 4 in 2009 that the agency was within its rights as a matter of administrative law to change its policy to protect the public against what Justice Antonin Scalia called foul-mouthed glitteratae from Hollywood.
But justices sent the case back to the U.S. Court of Appeals for the 2nd Circuit in New York to determine whether there were constitutional problems with the agencys actions.
That court agreed that there were. It said the agencys context-heavy determinations about indecency mean that broadcasters are left to guess when profanity and nudity might be deemed appropriate or punishable.
For example, the FCC allowed the profanity in an ABC broadcast of the movie Saving Private Ryan but disallowed some of the same words in a PBS documentary on blues singers.
So the Fox profanity cases are back at the Supreme Court, along with ABCs challenge of an FCC decision that a seven-second camera pan of an actresss bare buttocks in a 2003 episode of NYPD Blue violated the indecency standards. That resulted in a $1.2 million fine for 40 ABC affiliates that aired the show (including a Texas station owned by a subsidiary of The Washington Post Co.).
The courts deliberations this time will focus on whether the FCCs indecency regulations violate the First Amendment and the Fifth Amendments guarantee of due process.
In the 2009 case, Justice Clarence Thomas voted with the majority but said the court should reexamine the Pacifica decision. Traditional broadcast television and radio are no longer the uniquely pervasive media forms they once were, he wrote.
And Justice Ruth Bader Ginsburg, in dissent, said that when the court considers constitutional questions, we should be mindful that words unpalatable to some may be commonplace for others.
In their briefs, the networks say worries about what they will show if the FCCs regulations are struck down are overblown. They are free to show whatever they want after 10 p.m., and it is not comparable with what is on cable, they say.
Winter said the networks know they would not win in the court of public opinion, but he is not as confident about the high court.
The amount of content that used to be considered too much for broadcast is now ubiquitous, he said. They are editing into shows the harshest profanities with bleeps. What will happen is that those bleeps will go away.
