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High court rules against FCC in clash over profanity, nudity on TV

While no decisions was made on healthcare and immigration, the Supreme Court ruled that the FCC's indecency policy is too vague. NBC's Pete Williams reports.

The Supreme Court ruled Thursday that the Federal Communications Commission failed to give two television networks, FOX and ABC, advance notice of standards before punishing them for broadcasts in which outbursts of expletives and brief nudity were aired.

“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,” said Justice Anthony Kennedy, writing for the unanimous court.

The ruling does not affect the FCC’s policy banning indecency in TV broadcasting. 


The court said that it did need not to address the First Amendment implications of the FCC’s indecency policy nor did it need to reconsider its prior indecency ruling in a 1978 decision regarding prolonged recitation of vulgar words.

The case arose out of three broadcasts on Fox and ABC in 2002 and 2003.

Two of the broadcasts on Fox involved the use of expletives during prime-time TV airings of the Billboard Music Awards. In one of those Fox broadcasts, “a person named Nicole Richie” used two common vulgar words while presenting an award: “Have you ever tried to get cow [expletive] out of a Prada purse? It’s not so [expletive] simple.”

The other broadcast, a prime-time airing on ABC of the program "NYPD Blue" involved what the FCC called “pandering, titillating and shocking” scenes of a woman’s naked buttocks being viewed by a child, which the FCC said put TV viewers, including children, in a “voyeuristic position.”

At issue was whether the FCC rules violated the First Amendment right to broadcasting freedom and whether the rules were too vague for the broadcasters to know what was prohibited and what wasn’t.

The court said Thursday that the FCC was “free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements” -- which means that further litigation in such cases is almost certain. 

The FCC decision was the highlight of four decisions announced by the court Thursday. The justices’ decisions on the landmark health care overhaul and the tough Arizona anti-illegal immigration are likely to come next week.