WASHINGTON, June 21 (UPI) -- The U.S. Supreme Court ruled unanimously but narrowly Monday to set aside three violations incurred by ABC and Fox for "indecency."
The majority opinion by Justice Anthony Kennedy said the Federal Communications 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.
"Therefore, the commission's standards as applied to these broadcasts were vague, and the commission's orders must be set aside," the court said.
Justice Ruth Bader Ginsburg filed an opinion concurring in the judgment but distancing herself from Kennedy's reasoning. She said the court's main precedent on the issue, 1978's FCC vs. Pacifica should be given another look.
Justice Sonia Sotomayor took no part in the case, but did not explain. Justices sometimes withdraw from cases when they have stock in a company involved.
Kennedy said even after Pacifica, the FCC continued to note the important difference between isolated and repeated broadcasts of indecent material, and in a 2001 policy statement, said one of the factors in determining what is patently offensive -- "whether the material dwells on or repeats at length" the offending description or depiction.
Two of the violations set aside Monday deal with obscene words during two live broadcasts aired by Fox Television Stations Inc. The third occurred during an episode of a television show broadcast by the ABC Television Network when the nude buttocks of an adult female character in "NYPD Blue" were shown for approximately seven seconds and the side of her breast for a moment.
In December 2002, Fox broadcast the Billboard Music Awards beginning at 8 p.m. EST. Cher received an "Artist Achievement Award," and used the F-word in her acceptance speech. A year later, Fox again broadcast the Billboard Music Awards. In an exchange between reality celebrities Nicole Richie and Paris Hilton, Richie used both the S-word and the F-word.