WASHINGTON - The Supreme Court on Thursday declined to address whether the government still had the authority to regulate indecency on broadcast television but excused two broadcasters from potential fines for past violations of rules against cursing and nudity.
The court did not decide the constitutionality of the regulations, which have been challenged in light of changes in the media landscape that broadcasters say have undermined the rationales for limiting their free speech rights. The case arose from the broadcast of fleeting expletives by celebrities on awards shows on Fox and partial nudity on ABC's "NYPD Blue."
Justice Anthony Kennedy, writing for seven justices, said the commission had changed the rules in the middle of the game. That left the larger free speech questions unresolved. "This opinion leaves the commission free to modify its current indecency policy," he said.
Justice Sonia Sotomayor recused herself.
Only Justice Ruth Bader Ginsburg, who voted with the majority but did not join its reasoning, was prepared to address the First Amendment issues raised by changes in the world of broadcasting and related media since 1978, when the Supreme Court decided the leading case in this area.
That decision said the government could restrict George Carlin's "seven dirty words" monologue broadcast on the radio in the afternoon. The court relied on what it called the uniquely pervasive nature of broadcast media and its unique accessibility to children. Both points are open to question given the rise of cable television and the Internet, she said.
In remarks before the American Constitution Society last week, Ginsburg discussed the case, which involved banter between Nicole Richie and Paris Hilton, and she suggested that there were gaps in the justices' knowledge of popular culture. She said: "The Paris Hiltons of this world, my law clerks told me, eagerly await this decision."