The Supreme Court’s Fleeting Obscenities Case and the Capriciousness of the Bush-Era FCC

It’s bizarre to watch the Supreme Court’s decision in its fleeting obscenities case today get reported as some sort of victory for broadcasters. Yes, the court, in a decision written by Anthony Kennedy, voided three Federal Communications Commissions decisions against Fox and ABC, declaring that the FCC hadn’t given the networks proper prior notice that the things they broadcast — two incidences of expletives spoken, unscripted, by stars during awards broadcasts and seven seconds of female nudity from behind — could be considered obscene. It’s a nice reprieve for Fox and ABC, but the Court decided it didn’t need to address the First Amendment issues involved. The does nothing to change what networks can broadcast or the FCC’s general ability to determine what’s obscene. As the Parents Television Council pointed out in a statement on the ruling, there are 1.5 million pending indecency cases that the FCC, because it did give proper prior notice to those broadcasters, is now free to rule on.

But the decision does reveal how capriciously the FCC behaved during the period when these penalties were assessed.

“The Govern­ment argues instead that ABC had notice that the scene in NYPD Blue would be considered indecent in light of a 1960 decision where the Commission declared that the ‘televising of nudes might well raise a serious question of programming contrary to 18 U. S. C. §1464.’,” Kennedy explained. “An isolated and ambiguous statement from a 1960 Commission decision does not suffice for the fair notice required when the Government intends to impose over a $1 million fine for allegedly im­permissible speech.” Well, no kidding, but it’s amazing that the commission was brazen enough to think that would cut it. Particularly given, as Kennedy notes, “a Commission ruling prior to the airingof the NYPD Blue episode had deemed 30 seconds of nude buttocks ‘very brief’ and not actionably indecent in the context of the broadcast.” That the Commission didn’t acknowledge that is testament to either sloppy work and ignorance of its own precedents, or a conviction that the FCC can dramatically change tack at will.

That isn’t to say that new commissioners won’t be more rigorous and less capricious. But Kennedy did insist that “There is no need, however, for an agency to provide de­tailed justifications for every change or to show that the reasons for the new policy are better than the reasons for the old one.” It’s a sentiment that should unnerve both decency advocates and those of us who’d like to see more creative freedom for television writers.


In the meantime, I’d love to see more shows do what Parks and Recreation and Southland do: write dialogue that reflects how adults actually speak to each other in times of stress and excitement and pain and love, and bleep as necessary. It’s a workaround that avoids the — oh, the horror — prospect of expanding a child’s vocabulary in an instant, while acknowledging the adulthood of the target audience — and it’s a nice little rebuke visual rebuke to the confused standards we have today, a reminder that the FCC thinks the sight of Leslie Knope uttering the occasional obscenity is a threat.