SCOTUS punts on broadcast indecency

The Supreme Court unanimously held that the FCC could not enforce its new "fleeting expletives" policy as to Cher and Nichole Ritchie at the Billboard Music Awards and a butt shot on NYPD Blue, but not on First Amendment grounds. It held that the FCC had not given the networks sufficient notice of the new policy or that these broadcasts were unlawful, making it unconstitutioanlly vague as applied. The Court explicitly did not consider the First Amendment or the continued vitality of Pacifica, but told the FCC and the lower courts that they are free to make and remake policies and consider their constitutional validity.

Justice Ginsburg concurred only in the judgment to argue that Pacifica should be reconsidered. Interestingly, she cited to Justice Thomas' concurring opinion in the prior Fox case suggesting the same thing. But Thomas stuck with the majority opinion.

Quick Update: Interesting timing, because just Tuesday night, ABC cameras caught Dwaye Wade repeatedly using "mother-fucking" or "mother-fucker" during the post-game celebration following the Miami Heat's win in Game 4. Does ABC have notice of the policy? Or were things sufficiently in limbo until 10:30 this morning that the FCC only can enforce the policy against broadcasts from now forward?

Less Quick Update # 2: Eugene Volokh floats a theory I thought about this morning: There were four votes to overturn Pacifica, but with Justice Sotomayor recused (she was on the Second Circuit when this entire dispute first began), there was no fifth vote. Rather than affirming by a split 4-4 Court or reversing without a majority opinion or rationale, the Court sought the narrower grounds on which almost everyone would agree. Gene has Kennedy, Thomas, Ginsburg, and Kagan as wanting to overturn, but none of the Chief, Scalia, Breyer, and Alito willing to go along. I had Thomas and Breyer flipped, but on thinking on it, if this is what happened, Gene has the line-up right. I had forgotten that Thomas has shown himself to be more speech-protective in a lot of things, including indecency, while Breyer has shown a greater willingness to uphold agency regs that may impinge on speech.