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SCOTUS rules FCC’s indecency rules enforcement unconstitutional but doesn’t say anything about the rules themselves

by AirTalk®

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The Supreme Court's FCC indecency ruling leaves broadcasters still wondering what's appropriate. Mark Wilson/Getty Images

The Supreme Court has sided with Fox and ABC in a case involving the FCC and the way it enforces its indecency rules.

Justice Anthony Kennedy wrote the opinion stating, “Because 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, the Commission's standards as applied to these broadcasts were vague.”

While the decision was a favorable one for the two networks, it leaves something to be desired: an actual ruling on the FCC’s indecency rules themselves. Many broadcasters were hoping the case would finally create a clear definition of what can be considered indecent and perhaps take away some of the FCC’s power to regulate content. So does the court’s sort of non-ruling give networks more wiggle room?


Lisa McElroy, Professor of Law, Earle Mack School of Law, Drexel University; Supreme Court scholar

Carter Phillips, Attorney with Sidley Austin LLP with offices around the world; Phillips argued on behalf of broadcasters in FCC v. Fox

Simon Wilkie, Executive director, USC Center for Communication Law and Policy; Wilkie served as Chief Economist at the Federal Communications Commission from July 2002 to December 2003

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