FCC v Fox: The Supreme Court Finds Fleeting Indecency Standards Unconstitutionally Vague But Avoids First Amendment Issue

On June 21, 2012 the United States Supreme Court issued its opinion in FCC v. Fox Television Stations, Inc., sidestepping a ruling on whether the current indecency policy applied to broadcasters violates the First Amendment. FCC v. Fox Television Stations, Inc., No. 10-1293, 2012 U.S. LEXIS 4661 (June 21, 2012). Instead, the Court deftly disposed of the matter on the unique facts of the case—holding that the decency policy failed on fair notice grounds under the due process clause. Id. The underlying case has been a widely watched case of constitutional ping-pong between the Supreme Court and the Second Circuit involving the FCC, Fox, and ABC. At issue are "fleeting expletives," not so fleeting expletives, and partial nudity, all the makings for an important case, but the Court declined the opportunity.

In 1978 in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Court upheld the FCC's power to regulate the broadcast of patently offensive words. At issue was George Carlin's famous seven "filthy" words monologue. Finding that it was "patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, and at times of the day when there is a reasonablerisk that children may be in the audience." 56 FCC 2d at 98, the FCC found the broadcast sanctionable but did not actually impose any fines. Id. at 732. In Pacifica, the Supreme Court found that the First Amendment did not deny the government the power to regulate public broadcast of indecent language because "broadcast media have established a uniquely pervasive presence in the lives of all Americans [and] . . . broadcasting is uniquely accessible to children, even those too young to read." Id. at 748-49.

Beginning in 1987, the Commission indicated it would use a "generic definition of indecency" and "assess the full context of allegedly indecent broadcasts rather than limiting its regulation to a 'comprehensive index . . . of indecent words or pictorial depictions.'" Fox, 2012 U.S. LEXIS 4661 at *8. In the ensuing years, FCC modified its policy and in 2001, issued Industry Guidance on Commission's Case Law Interpreting 18 U.S.C. §1461 and enforcement policies regarding broadcast indecency. 16 FCC Rcd. 7999. In that Guidance, FCC reiterated the Pacifica rule and identified three factors it would consider for enforcement:

(1) [T]he explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material draws on or repeats at length description of the sexual or excretory organs or activities; (3) whether the material appears to...

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