The U.S. Supreme Court today denied certiorari (i.e. declined review) in two important FCC-related cases pending before it. First, following the Court’s recent decision in the Fox indecency case, which we described here, the Court not surprisingly refused to review the Third Circuit’s decision vacating the $550,000 FCC fine for the Janet Jackson "wardrobe malfunction" in the 2004 Super Bowl shown on CBS.
In the Fox case, the Supreme Court found that the FCC had not provided advance notice that it would prosecute cases of "fleeting" indecency. That decision essentially predetermined that the Supreme Court would deny review of the Super Bowl incident. While denying cert., however, Chief Justice Roberts issued an unusual separate opinion, noting that fleeting indecent images may have a more lasting impression than indecent words. Nevertheless, he noted that going forward, braodcasters are on notice that fleeting indecent words and images are both now subject to FCC sanctions.