1. What must the FCC now do to make the standards constitutional?

2. Why were the cases taken up on appeal so many times?

In a case that has been around almost as long as Cher, the U.S. Supreme Court, once again, issued a decision related to three FCC charges against Fox and ABC Television. First, in the 2002 Billboard Music Awards, broadcast by Fox Television, the singer Cher exclaimed during an unscripted acceptance speech: “I’ve also had my critics for the last 40 years saying that I was on my way out every year. Right. So f * * * ‘em.” At the 2003 Billboard Music Awards, Nicole Richie made the following unscripted remark while presenting an award: “Have you ever tried to get cow s* * * out of a Prada purse? It’s not so f * * *ing simple.” The third incident involved an episode of NYPD Blue, a regular television show broadcast by respondent ABC Television Network.

The episode, broadcast on February 25, 2003, showed the nude buttocks of an adult female character for approximately seven seconds and for a moment the side of her breast. During the scene, in which the character was preparing to take a shower, a child portraying her boyfriend’s son entered the bathroom. A moment of awkwardness followed. The FCC received indecency complaints about all three broadcasts. After these incidents, but before the FCC issued Notices of Apparent Liability to Fox and ABC, it issued a decision sanctioning NBC for a comment made by the singer Bono during the 2003 Golden Globe Awards. Upon winning the award for Best Original Song, Bono exclaimed:

“‘This is really, really, f * * *ing brilliant. Really, really great.’” The FCC found that the use of the F-word was “one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,” and found that “any use of that word or a variation, in any context, inherently” indecent. The FCC then found that both Fox and ABC had violated commission standards for decency. The networks appealed the findings of indecency and their fines ($1.4 million each). The U.S. Supreme Court [FCC v. Fox Television Stations, Inc. (Fox 1), 556 U.S. 502 (2009)] held that the FCC’s findings were not arbitrary nor capricious and remanded the case for findings related to the network’s First Amendment challenges to the fines. On remand, the Court of Appeals found that the FCC indecency policy failed to give broadcasters sufficient notice of what would be considered indecent. The Court of Appeals found that the FCC was inconsistent as to which words it deemed patently offensive. The FCC standard was held to be void for vagueness. The FCC appealed.

JUDICIAL OPINION

KENNEDY, Justice … In 2001, the Commission issued a policy statement intended “to provide guidance to the broadcast industry regarding [its] caselaw interpreting 18 U.S.C. §1464 and [its] enforcement policies with respect to broadcast indecency.” In that document the Commission restated that for material to be indecent it must depict sexual or excretory organs or activities and be patently offensive as measured by contemporary community standards for the broadcast medium.