- The Washington Times - Thursday, June 21, 2012

Network television scored a victory Thursday in its fight with the federal government over dirty words and nudity, but the Supreme Court punted on the larger, more daunting question of whether indecency standards by their very nature violate the First Amendment.

In a closely watched case, the high court determined that the Federal Communications Commission’s current policy is too “vague” and ruled that fines and sanctions levied against Fox and ABC – stemming from brief instances of nudity and the use of expletives during prime-time broadcasts – were unwarranted and unfair.

“Regulated parties should know what is required of them so they may act accordingly,” said Justice Anthony M. Kennedy, who wrote the majority opinion. “Precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way.”

But in its 8-0 decision, with Justice Sonia Sotomayor abstaining, the court did not address the broader free speech question of whether federal regulators should have any control over television content. Instead, the judgment dealt only with several specific instances and subsequent fines.

Fox violated the FCC´s policy several times in the past decade, including a 2002 incident in which the entertainer Cher uttered the F-word during the 2002 Billboard Music Awards. Reality star Nicole Richie did the same in 2003.

ABC stations were hit with fines after an episode of “NYPD Blue” featured a lengthy shot of a woman´s naked buttocks. The nudity was shown before 10 p.m. Eastern, the traditional cutoff point for indecent material.

Legal analysts believe the court’s narrow ruling – which applies only to the Fox and ABC cases – guarantees it will have another showdown with broadcast TV in the near future.

“The court avoided the big question that was presented here, which is whether the FCC’s indecency policies are unconstitutional. You could say that, in a sense, it’s kicking the can down the road,” said Nathan Siegel, a First Amendment lawyer and law professor at the University of Maryland. “It doesn’t answer the question that people are looking for guidance on.”

Critics have contended that the commission is selective in its enforcement, punishing stations for some violations while turning a blind eye to others.

The movie “Saving Private Ryan,” for example, has been shown on broadcast television unedited, with no fines or sanctions levied.

Thursday’s decision allows the FCC to continue enforcing an indecency standard, and Justice Kennedy specifically noted that the commission is free to adjust its policy at any time.

By allowing censorship to stand, the court to a certain degree pleased both sides of the debate, including those who believe the government must protect the public airwaves from sex, violence and profanity.

“Today, the U.S. Supreme Court gave the FCC the green light to continue imposing indecency fines on the networks for fleeting expletives and brief nudity,” said Tony Perkins, president of the Family Research Council. “When a similar case goes before the Supreme Court again for fines imposed for any future violations, we expect the court to once again decide that fleeting expletives and brief nudity are not protected under the First Amendment.”

• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.

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