FCC v. Fox Television Stations

PETITIONER:Federal Communications Commission, et al.
RESPONDENT:Fox Television Stations, Inc., et al.
LOCATION: Federal Communications Commission Headquarters

DOCKET NO.: 10-1293
DECIDED BY: Roberts Court (2010-2016)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 567 US (2012)
GRANTED: Jun 27, 2011
ARGUED: Jan 10, 2012
DECIDED: Jun 21, 2012

Carter G. Phillips – for the Fox Television Stations, Inc. et al. respondents
Donald B. Verrilli, Jr. – Solicitor General, Department of Justice, for the petitioners
Seth P. Waxman – for the ABC, Inc. et al. respondents

Facts of the case

In 2004, the Federal Communications Commission said that TV stations could be fined for indecency violations in cases when a vulgarity was broadcast during a live program. That happened on Fox in 2002 and 2003 when Cher and Nicole Richie cursed during award shows and were not bleeped.
 The FCC never actually fined Fox, but the network took issue with the regulatory agency setting the stage for future fines and challenged the fleeting-expletive rules. The U.S. Court of Appeals for the Second Circuit ruled that the FCC’s rules were “unconstitutionally vague” and had a “chilling effect.”


Did the court of appeals err in finding the FCC’s indecency policy unconstitutionally vague in its entirety?

Media for FCC v. Fox Television Stations

Audio Transcription for Oral Argument – January 10, 2012 in FCC v. Fox Television Stations

Audio Transcription for Opinion Announcement – June 21, 2012 in FCC v. Fox Television Stations

John G. Roberts, Jr.:

Justice Kennedy has our opinion this morning in case, 10-1293, FCC versus Fox Television.

Anthony M. Kennedy:

There are two broadcasters in this case, both of them are respondents, one is Fox Television Stations Inc. and the other is ABC.

They have been involved in a lengthy dispute with the Federal Communications Commission.

The dispute arises from two broadcasts by Fox and one by ABC and the case had been here once before.

The opinion describes some detail of the procedural history.

The two incidents on Fox were broadcast of the Billboard Music Awards.

The first broadcast was in 2002, the second in 2003.

In the first, an award recipient used a vulgar word.

In the second, the announcer used the vulgarity a couple of times.

The incident on ABC concerned a 2003 broadcast episode of the series called NYPD Blue, and it had a shower scene that included about seven seconds of adult nudity.

The question is whether these broadcasts were in violation of a federal statute, 18 U. S. C. 1464 and that statute prohibits indecent broadcast and the FCC has authority to enforce it.

In 1978, this Court in FCC versus Pacifica Foundation upheld the FCC’s first enforcement action under the statute.

That was the case that involved a radio broadcast of a monologue called Seven Dirty Words, and the monologue repeated the vulgar words a number of times.

It was aired during the daytime broadcast hours when children were more at risk of being exposed to it and this Court in the Pacifica case noted that it was not deciding, not deciding whether an occasional expletive would violate the statute.

Now, it’s the occasional or fleeting or passing reference problem that is involved in today’s cases.

Since the 1978 Pacifica case, the FCC has issued various policy statements or rulings on this subject.

In 2001, before the Fox and ABC broadcast, the FCC said that the fleeting expletive would tend to weigh against the finding of indecency, but then after the Fox and ABC broadcast took place but before the FCC had issued notices of liability to those broadcasters, the FCC issued a ruling in another case and that’s the so-called Golden Globes broadcast case.

In there, the FCC held that use of a specific word could make the broadcaster liable even if the word were not repeated and even if it was a so-called fleeting or passing reference.

The FCC applied this Golden Globes ruling in interpretation to the Fox and ABC broadcast here.

Fox was found to be in violation, but it received no momentary sanction and ABC was fined over $1 million.

When these cases came to this Court three years ago, Fox argued that it was arbitrary and capricious for the FCC to change its policy.

And this Court disagreed and returned the case to the Court of Appeals and this Court noted it was not considering the constitutional arguments including First Amendment questions.

On remand, the Court of Appeals ruled that the FCC’s indecency policy was unconstitutional because it was vague.

That Court invalidated the policy in its entirety.

Having done so, the Court of Appeals reversed the FCC’s sanctions against Fox and relied on that ruling to reverse the liability finding against ABC for the NYPD Blue episode.

On certiorari, the case is now returned here.

The broadcasters argue that the FCC policies and indeed this Court’s holding in Pacifica are an unconstitutional restriction of protected speech.

This Court does not reach the First Amendment question however because a basic due process concept of fair notice is controlling here.

These broadcasters did not have fair notice of the FCC policy.

In sanctioning these broadcasters, the FCC applied the new standard contained in the 2004 Golden Globes order, an order that was issued after these broadcasts took place, and it’s a fundamental principle of due process that laws must give fair notice of the conduct that is forbidden or required.

Anthony M. Kennedy:

The FCC gave no such notice.

It applied the policy announced after the sanctioned broadcast so the FCC orders against Fox and ABC must be set aside.

It’s necessary to make three observations about the scope of this decision.

First, because the Court resolves this case under the Due Process Clause, it does not address the First Amendment implication of the FCC’s policy and we do not address the respondents’ arguments that we should reconsider our holding in Pacifica at this time.

Second, because we rule that ABC and Fox lacked notice under the FCC’s policies in existence in 2001, unlike the Second Circuit, we have no need to address the constitutionality of the current indecency policy as expressed in the 2004 Golden Globes order.

Third, this decision leaves the FCC free to modify its current indecency policy in light of its determination of the public interest.

It leaves courts free to review the current policy or any future policy in light of its content and application.

The judgments of the Court of Appeals for the Second Circuit are vacated.

The cases are remanded for further proceedings consistent with this opinion.

Justice Ginsburg has filed an opinion concurring in the judgment.

Justice Sotomayor took no part in the consideration or decision of these cases.