FCC's Rules Against Nudity Reviewed

The constitutionality of federal rules that effectively bar the broadcast of nudity and profanity when children are likely to be tuned in will be taken up by the Supreme Court in its next term, the justices said Monday. The case, brought by broadcasters seeking to overturn the Federal Communications Commission's curbs on indecent broadcast speech, sets up an opportunity for the Roberts Court to break new ground on free-speech rights.

The Supreme Court hasn't directly addressed the First Amendment issues raised by the FCC's longstanding rules against broadcast indecency since a 1978 decision that allowed the agency to fine a radio station for broadcasting a monologue on dirty words by the late comedian George Carlin.

A divided court ruled for the FCC on narrow grounds in 2009, finding the agency's stepped-up efforts to combat indecency were a legally permissible exercise of the agency's administrative powers. Now the court has indicated it would hear broadcasters' arguments that the FCC's rules are unconstitutional and no longer necessary as cable and broadband have broken the hold federally licensed broadcasters once had over what Americans listen to on the radio and watch on television.


FCC rules prohibit station owners from airing indecent content, including images and words, between the hours of 6 a.m. and 10 p.m., when children are more likely to be in the audience. Although stations can air all of the racy content they want in the late evening and early morning hours, they generally don't out of concern they might offend advertisers and viewers.

One case before the court involves Fox Television broadcasts of the 2002 and 2003 Billboard Music Awards in which Cher and Nicole Richie uttered expletives. Another case involves ABC's airing of a 2003 episode of "NYPD Blue" that depicted a woman's naked buttocks. The Supreme Court will consider one appeal that consolidates the two cases.

The FCC found Fox was in violation of indecency prohibitions but didn't sanction the network. In the "NYPD Blue" case, the agency fined 45 ABC network-owned or affiliated stations that aired the episode.

Fox is a division of News Corp., which also owns The Wall Street Journal. "We look forward to the Supreme Court's review of the significant constitutional issues in the case. We are hopeful that the court will ultimately agree that the FCC's indecency enforcement practices trample on the First Amendment rights of broadcasters," a Fox spokesman said Monday.

An FCC spokesman said the agency "is hopeful that the Court will affirm the commission's exercise of its statutory responsibility to protect children and families from indecent broadcast programming."

Separately, the court agreed to decide whether the police can covertly install a GPS tracking device on a suspect's car without a warrant. The justices will review a ruling that threw out a drug-trafficking conviction based in part on GPS evidence regarding the suspect's whereabouts. Lower courts have issued conflicting decisions on whether warrantless GPS monitoring violates the Fourth Amendment's prohibition on unreasonable searches.