On indecency, SCOTUS puts onus back on FCC

The battle between the government and broadcasters over a pop star’s profane slip of the lip or a TV drama’s brief flash of nudity is far from finished in the wake of the Supreme Court ruling on the FCC’s indecency rules.

The court essentially handed the hot potato back to the Federal Communications Commission by punting on the free speech issues in the case. “The Supreme Court decision leaves the big issues for a different day,” said Andrew Jay Schwartzman. “If the FCC chooses, there will be more fines and litigation that will go on for years. This is potentially a Pyrrhic victory.” The court did level a new layer of pressure on the FCC to amend its policy. In the SCOTUS majority opinion, Justice Anthony Kennedy signaled that tweaks are in order. But what — if anything — the FCC does is still an open question. Some observers say the FCC’s most logical move would be to retreat to its practice before 2001, when the commission generally declined to sanction fleeting and isolated uses of expletives, except in very specific circumstances. “If they were to go back to the light touch, that would be one way to resolve this,” a broadcast source said. “In terms of constitutionality, that would be the smart thing to do.”