The Supreme Court today ruled in favor of broadcasters that had challenged the FCC's policy on indecency over fleeting instances of curse words and nudity.
Justice Anthony Kennedy, writing for a unanimous court, said that Fox and ABC "lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies."
Kennedy said, "The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent."
The case stems from celebrities such as Cher and Nicole Richie uttering swear words during live television in primetime, as well as an episode of ABC's show "NYPD Blue" that depicted partial nudity.
The Federal Communications Commission — charged with regulating the public airwaves — found that the incidents violated its prohibitions against the broadcast of indecent material before 10 p.m. and fined the networks.
But lawyers for broadcasters including Fox Television and ABC, Inc., argued that the FCC's policy is unconstitutionally vague and chills free speech. Facing daunting fines, the broadcasters argued that the government should no longer treat broadcast speech more restrictively than other media when it comes to the regulation of indecency over the airwaves.
Although the broadcasters had also argued the standards violated the First Amendment, Justice Kennedy did not address the claim. "Because the Court, resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commissions indecency policy."
Kennedy said that today's opinion "leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements."
Justice Sotomayor was recused from today's decision because she dealt with the issue at the lower court
Anticipated court rulings on the president's health reform law and an Arizona immigration policy were held off until at least next week.