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Supreme Court says broadcast decency standards too vague

The Supreme Court ruled that the FCC didn’t give broadcasters enough notice before enforcing new standards on language and nudity. But because the court didn't address the underlying constitutional issue of free speech, a variety of interest groups all claimed a measure of victory.


Madonna, center, performs with Nicki Minaj, left, and M.I.A. during halftime of the NFL Super Bowl football game broadcast on NBC in February from Indianapolis. During the performance, British rapper M.I.A. used an obscene gesture.

Michael Conroy/AP

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The Federal Communications Commission failed to give fair notice to television broadcast companies before enforcing tough new standards against brief instances of foul language and nudity during primetime, the US Supreme Court ruled on Thursday.

The high court reversed FCC enforcement decisions against both Fox and ABC, saying that the commission’s new standards for indecency were so vague that the companies could not know precisely what was forbidden.

But in a surprising move, the justices declined to address the larger, more important, issue raised in the case – whether the FCC’s tough indecency policy violated the broadcasters’ free speech rights under the First Amendment.

“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 Commission’s indecency policy,” Justice Anthony Kennedy wrote for the court.

The court voted 8 to 0 to resolve the case in this fashion. Justice Sonia Sotomayor did not participate because she had served on an appeals court panel that heard an earlier stage of the case.

The action invalidates FCC orders against the two networks. It also reverses imposition of $1.24 million in fines levied by the FCC against ABC stations.


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