Fordham Law

High court: FCC didn't give enough notice, can't fine over indecency

Abner Greene in Catholic News Service, June 21, 2012

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The Supreme Court, in a unanimous ruling, said the Federal Communications Commission did not give sufficient notice that certain words or depictions on broadcast television could be considered indecent and thus subject to fines or other sanctions. The June 21 ruling removes the threat of penalties against Fox and ABC -- Fox for language used on awards shows that aired live, and ABC for showing female rear nudity and a side view of a breast on the long-since-canceled police drama "NYPD Blue." But in the 8-0 decision, the high court did not rule on the constitutionality of the FCC's policy banning broadcast indecency. Justice Sonia Sotomayor did not participate in the case; she had been a member of a federal district court that heard one aspect of the indecency suit in the 2000s. "Any time you have a potentially hot-button issue that the court decides unanimously, you know the court is doing something very narrow," said Fordham University Law School professor Abner Greene, a First Amendment expert. Even so, he added, the case is "a good teaching example that justices from different parts of the (ideological) spectrum can get together and agree on something." Greene told Catholic News Service in a June 21 telephone interview that the indecency issue is "a very complicated law that the justices keep not wanting to address." As for the future, "we need to wait to see if the FCC is going to continue imposing its policy or not," Greene said, adding that followers will have to note the "pattern of its application. Is it fairly clear or is it going to be scattershot?"