Federal Communications Commission v. Fox Television Stations, Inc.
132 S. Ct. 2307
| SCOTUS | 2012Background
- FCC indecency regime governs 6 a.m.–10 p.m. broadcasts under 18 U.S.C. §1464 and related FCC rules.
- Pacifica (1978) upheld a regulatory approach toward transient indecent material due to broadcast uniquely pervasive reach and child accessibility.
- In Fox I (2009), the Court held the fleeting-expletives policy was not arbitrary or capricious but remanded for First Amendment considerations.
- On remand, the Second Circuit held the policy vague and unconstitutional as applied.
- This case centralizes whether the FCC’s indecency policy provided fair notice and violated due process when applied to the 2002–2003 Fox and ABC broadcasts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FCC policy lacked fair notice under due process. | Fox/ABC: policy vague; changed after 2001 guidance and 2004 Golden Globes Order. | FCC: notice via evolving standards; forbearance does not moot due process. | Yes; standards were vague, violating due process. |
| Whether the decision to apply fleeting-expletive standard implicates First Amendment scrutiny. | Due process voids enforcement; chill on speech. | Policy grounds adequate to regulate indecency. | Not necessary to decide First Amendment issue; due process violation warranted vacatur. |
| Whether the FCC’s enforcement history invalidates prior notices for ABC/NYPD Blue. | NYPD Blue nudity decision preceded and lacked clear notice. | Some guidance existed; not all cases were clearly indecent. | Ruled in favor of Fox/ABC on due process grounds; violations of fair notice. |
Key Cases Cited
- FCC v. Pacifica Foundation, 438 U. S. 726 (U.S. 1978) (upheld regulation of indecency due to broadcast's pervasive reach and child access)
- FCC v. Fox Television Stations, Inc., 556 U. S. 502 (U.S. 2009) (agency not arbitrary; remand for First Amendment considerations)
- United States v. Williams, 553 U. S. 285 (U.S. 2008) (due process requires fair notice and avoids standardless enforcement)
- Grayned v. City of Rockford, 408 U. S. 104 (U.S. 1972) (due process requires notice and guidance to prevent arbitrary enforcement)
- Reno v. ACLU, 521 U. S. 844 (U.S. 1997) (content-based regulation of speech raises First Amendment concerns; chill effects)