WASHINGTON — The Supreme Court declined Thursday to address whether the government still has the authority to regulate indecency on broadcast television but excused two broadcasters from potential fines for several past violations of rules against cursing and nudity.
The court did not decide the constitutionality of the regulations, which have been challenged in light of changes in the media landscape that broadcasters say have undermined the rationales for limiting their free-speech rights.
The case, Federal Communications Commission v. Fox Television Stations, No. 10-1293, arose from the broadcast of fleeting expletives by celebrities on awards shows on Fox and partial nudity on the police drama NYPD Blue on ABC.
Justice Anthony Kennedy, writing for seven justices, said the commission had changed the rules in the middle of the game.
“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,” Kennedy wrote.
That left the larger freespeech questions unresolved.
“This opinion leaves thecommission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements,” Kennedy wrote. “And it leaves the courts free to review the current policy or any modified policy in light of its content and application.”
Justice Sonia Sotomayor recused herself from the case.
Only Justice Ruth Bader Ginsburg, who voted with the majority but did not join its reasoning, was prepared to address the First Amendment issues raised by changes in the world of broadcasting and related media since 1978, when the Supreme Court decided the leading case in this area, Federal Communications Commission v. Pacifica.
That decision said the government could restrict George Carlin’s famous “seven dirty words” monologue, which had been broadcast on the radio in the afternoon. The court relied on what it called the uniquely pervasive nature of broadcast media and its unique accessibility to children.
Both points are open toquestion given the rise of cable television and the Internet.
“In my view,” Ginsburg wrote, the Pacifica decision was wrong when it was issued. “Time, technological advances, and the commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.”
Fox and ABC said they were pleased by the ruling.
“The court recognized that the case has significant First Amendment implications that require notice to be clearer,” Dan Berger, a spokesman for Fox, said in an e-mailed statement.
“The FCC will have a lot of work to do,” Robert McDowell, a Republican member of the agency that is led by Democrats, said in an interview.
“The commission has a duty to act quickly to outline its indecency standards.”
The FCC hasn’t raised new indecency complaints since Julius Genachowski, a Democrat, became chairman in 2009. He said in an e-mailed statement Thursday that he’s reviewing the court’s decision.
“The FCC will carry out Congress’s directive to protect young TV viewers,” Genachowski said in the statement, which didn’t mention the backlog of complaints.
The decision leaves U.S.regulators with the power to punish broadcasters for airing nudity and expletives, and a backlog of 1.5 million complaints.
The chairmen of both congressional committees overseeing the FCC said Thursday that broadcast indecency remains a concern.
“I would remind executives in New York and Hollywood that they should act responsibly when it comes to the entertainment they are sending, via the public’s airwaves, into family rooms across the country,” Rep. Fred Upton, the Michigan Republican who is chairman of the Energy and Commerce Committee, said in an e-mailed statement.
Sen. Jay Rockefeller, the West Virginia Democrat who is chairman of the Commerce Committee, said the decision is “a victory for those of us who believe that we must be doing more, not less” to protect children from indecent programming.
Andrew Jay Schwartzman, a lawyer representing two artists-rights groups, said in an e-mailed statement that the “court correctly held that the FCC’s confusing statements left broadcasters in the dark about what they could do.”
“Unfortunately, by ducking the First Amendment issues, the uncertainty remains. This will have a chilling effect on broadcasters and artists.”
The Supreme Court case concerned incidents at the Billboard Music Awards, shown on Fox. At the 2002 show, Cher referred to critics of her work by saying, “F ’em. I still have a job, and they don’t.” A year later, Nicole Richie said, “Have you ever tried to get cow s out of a Prada purse? It’s not so f simple.”
In the NYPD Blue case, a 2003 episode shows actress Charlotte Ross’ buttocks as she disrobes for a shower and later a frontal view, with her hands covering her breasts and pubic area, after a young boy inadvertently walks in.
In remarks before the American Constitution Society last week, Ginsburg discussed the case, which involved televised banter between Richie and Paris Hilton, and she suggested wryly that there were gaps in the justices’ knowledge of popular culture.
“The Paris Hiltons of this world, my law clerks told me, eagerly await this decision,” she said of the case decided Thursday. “It is beyond my comprehension, I told my clerks, how the FCC can claim jurisdiction to ban words spoken in a hotel on French soil.” Information for this article was contributed by Adam Liptak of The New York Times, and by Todd Shields, Greg Stohr and Alex Sherman of Bloomberg News.
Front Section, Pages 2 on 06/22/2012