The Federal Communications Commission (FCC) [official website] on Thursday asked [cert. petition, PDF] the US Supreme Court [official website; JURIST news archive] to reinstate an indecency policy [text] that places restrictions on profanity and nudity during television broadcasting. In July, the US Court of Appeals for the Second Circuit [official website] ruled that the policy was unconstitutional [JURIST report]. The court held that the policy was a violation of the First Amendment [text] right to freedom of speech because it was unconstitutionally vague and could have a "chilling effect" on speech. In its petition, the government expressed concern for the consequences of allowing broadcasting to continue without the restrictions of the policy:
The Court of Appeals' decisions preclude the Commission from effectively implementing statutory restrictions on broadcast indecency that the agency has enforced since its creation in 1934. Accordingly, broadcasters may well believe that they have been freed of the public-interest obligation not to air indecent programming that they assumed when they were originally "granted the free and exclusive use of a limited and valuable part of the public domain."The court of appeals did not reject the idea of creating a new policy that is constitutional, but the government argues that, until the FCC can find a solution to overcome vagueness, it lacks the power to fulfill its statutory obligation to limit indecency in broadcasting.
This case hinges on indecency issues raised in two separate broadcasts, one in which a nudity scene appeared in a television crime show [Bloomberg report] during prime-time hours, and the other involving celebrities using expletives [WSJ report] during live broadcasting events. The Supreme Court originally remanded the case to the Second Circuit after ruling [opinion text; JURIST report] in April 2009 that the FCC did not act arbitrarily and capriciously in changing its policy regarding fines for the broadcast of isolated expletives. That ruling overturned a previous decision [JURIST report] by the Second Circuit, which held that the 2004 policy was arbitrary and capricious under the Administrative Procedure Act [text] for failing to articulate a reasoned basis for its change in policy. The Supreme Court declined to address the constitutionality of the FCC policy in its decision and remanded the case to the lower court for further consideration of the constitutional issue.