The FCC is constitutional

USA: Supreme Court on Obscenity in Live Broadcasts

Esther M. Harlow, EMR Saarbr├╝cken / Brussels

On April 28, 2009, the US Supreme Court partially confirmed a 2004 amended directive on how to deal with obscenities on television.

According to the amendment to the directive issued by the regulatory authority Federal Communications Commission (FCC), broadcasters can also impose fines of up to US $ 325,000 on vulgar expressions made for individual or accidental live broadcasts become. Previously, this sanction only applied to repeated use of strong expressions or other obscenities in live broadcasts.

The confirmation of the RL before the Supreme Court is based on a decision of the FCC from the year 2006. This determined that the television station News Corp's Fox Television Network (Fox) had violated the RL by broadcasting two live broadcasts, where celebrities had spontaneously used expletives. Although the FCC did not impose any fines, Fox appealed the decision to an incidental review of the RL's legality. The appeals court then overturned the amendment to the RL as "arbitrary and unpredictable" and referred the decision back to the FCC. In addition, the FCC was asked to substantiate the need to amend the Directive.

The FCC turned instead to the Supreme Court, which overturned the appeal court's decision and at least partially upheld the RL. Although the Supreme Court expressly found this non-arbitrary, the judges raised concerns about the constitutionality of the RL. Doubts exist in particular as to whether the RL violates the freedom of expression. The decision on this was not for the Supreme Court, however, as this was not the subject of the proceedings. An appeals court must first decide whether the RL violates the constitutionally guaranteed freedom of expression.