They may call it a “fleeting obscenity” case, but the journey of the lawsuit finally decided on by the U.S. Supreme Court yesterday, challenging FCC indecency charges, was anything but fleeting. The case stemmed from a flash of nudity on a 2003 episode of NYPD Blue, for which ABC was fined, and two obscenities on Fox awards shows in 2002 and 2003. The age-old cases were litigated back and forth, up and down the court hierarchy, by the networks and the FCC for nearly a decade, leading to yesterday’s decision, which settled — very little.
The narrow ruling left all sides with something to celebrate, largely because it left so much undecided. The court ruled specifically against the FCC’s specific actions in these cases, on the grounds that the FCC had not provided specific enough advance notice as to what did and did not constitute indecency. (One much-cited example: the same F-bomb that got Fox in trouble was allowed in an airing of Saving Private Ryan.) So: good news for the networks!
But also good news for TV-decency crusaders! Because the court decided that there was no need for it to take on the broader issue of whether it was the FCC’s constitutional prerogative at all to regulate obscene speech on the airwaves. (Reminder: “airwaves” here means specifically broadcast networks, not cable, because the public owns the air, not cable lines.) That means the FCC is still free to issue further regulations and police decency— at least, until another case comes up that compels the court to rule directly on whether FCC indecency regulation is constitutional or not. Indeed, it means, as the Los Angeles Times reported, that the agency will now have to go back and review over a million complaints it’s received in the interim and left hanging while awaiting judicial clarification.
The Parents Television Council — the advocacy group that generated many, many of those mass-mailed complaints — cheered the ruling yesterday for affirming, or at least not striking down, the FCC’s regulatory powers. For those of us who are more libertarian on the issue of TV speech, there was a little something to cheer too: the ruling was small but addressed a big problem of decency regulation, which is the chilling effect created when networks simply do not know what type of content will be punished and what won’t.
But mostly, it means more court and social battles to come, including a case still wending its way through the system after the Janet Jackson Super Bowl nipple exposure of 2004. Justice herself may often be represented in a state of frontal exposure, but her process is not fleeting in the least.