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The Supreme Court on Thursday threw out fines and other penalties against TV broadcasters that violated the FCC's policy on curse words and nudity, but declined to rule on whether the policy itself violates free speech.
As the Associated Press explains, the FCC amended their indecency policy in 2004, leaving broadcasters liable for a single expletive, or for brief nudity shown on television, including live broadcasts. But in unanimous opinion penned by Justice Anthony Kennedy, the high court ruled that the commission didn‘t adequately explain the policy, making it impossible for broadcasters to know ahead of time that "a ﬂeeting expletive or a brief shot of nudity could be actionably indecent." The FCC should have given fair notice of the policy changes, the court concluded, basing the decision on constitutional due process.
The specific instances in the case included a seven-second shot of a naked woman's buttocks on a 2003 episode of NYPD Blue. That shot would have cost ABC $1.21 million in ﬁnes. Also considered: 2002 and 2003 awards shows aired on FOX where Cher and Nicole Richie used expletives, as Reuters explains.
For the record, Janet Jackson's infamous "wardrobe malfunction" at the 2004 Super Bowl occurred after the FCC had launched its indecency crackdown, but it was not part of the batch of cases being considered by the high court.* (The fine in that case was thrown out by a lower court, a decision that the U.S. government is currently appealing.)
The FCC can respond to the ruling in several ways, including, as Kennedy noted, by revising the policy. The full decision for FCC v. Fox Television Stations, Inc. is available here.
*Clarification: This post as been reworked to make it clear that while Janet Jackson's nip-slip occurred after the FCC tweaked its policy, that incident was not among those being considered by the high court.