Supreme Court to weigh FCC's indecency policy

The Supreme Court said Monday it will review a lower court ruling that struck down the Federal Communications Commission's ability to regulate broadcast airwaves for indecency.

The court granted the government's petition for a writ of certiorari limited to "whether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.”

"We are pleased the Supreme Court will review the lower court rulings that blocked the FCC’s broadcast indecency policy," said an FCC spokesman.

"We are hopeful that the court will affirm the commission’s exercise of its statutory responsibility to protect children and families from indecent broadcast programming."

A federal appeals court tossed the FCC's policy of fining broadcasters for expletives uttered on live television last July, arguing it was unconstitutionally vague and could lead to self-censorship by broadcasters. The cases at the heart of the review concern celebrities uttering expletives during live awards shows.

The FCC subsequently acknowledged the lower court's decision would prevent the commission from enforcing its indecency policy even in cases of scripted rather than fleeting profanity or nudity.

That prediction came to fruition when the same court tossed the commission's record $1.4 million fine leveled against 52 ABC affiliates for airing a 2003 episode of "NYPD Blue" that contained a scene featuring actress Charlotte Ross nude.

Acting Solicitor General Neal Katyal included a DVD of the episode with the government's certiorari petition filed in April. The administration argues that in order to meet the court's concerns about vagueness, the FCC would have to return to a prescribed list of words or images banned from broadcast TV.

The most vocal support for the FCC's position has come from a watchdog group best known for leading campaigns against TV shows it claims feature excessive violence or nudity.

"The High Court will have the opportunity to reverse misguided Second Circuit Court of Appeals rulings that would open the floodgates for graphic nudity and some of the harshest profanity in the English language,” said Parents Television Council President Tim Winter.

“Decency has been a fixture of federal law since the dawn of broadcasting and despite the opinion of the TV networks and three judges in New York, it has not suddenly become an outdated relic."

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