''Federal Communications Commission v. Fox Television Stations, Inc.'', 567 U.S. 239 (2012), was a decision by the Supreme Court of the United States regarding whether the U.S.

Federal Communications Commission The Federal Communications Commission (FCC) is an independent agency of the United States federal government that regulates communications by radio, television, wire, satellite, and cable across the United States. The FCC maintains jurisdicti ...

's scheme for regulating speech is unconstitutionally vague. The Supreme Court excused the broadcasters from paying fines levied for what the FCC had determined indecency, in a majority opinion delivered by Justice

Anthony Kennedy Anthony McLeod Kennedy (born July 23, 1936) is an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Presid ...

. The Supreme Court had previously issued an opinion in the case in 2009 addressing the nature of the fine itself, without addressing the restriction on indecent speech.

Initial case

The case entered the Supreme Court's docket in October 2007 and specifically concerns obscene language broadcast on the

Fox Foxes are small to medium-sized, omnivorous mammals belonging to several genera of the family Canidae. They have a flattened skull, upright, triangular ears, a pointed, slightly upturned snout, and a long bushy tail (or ''brush''). Twelve sp ...

television network from two '' Billboard'' Music Awards shows occurring in 2002 and 2003. On the December 9, 2002 ceremony, while accepting an artist achievement award for her career, Cher said " fuck 'em" regarding people who she believed criticized her; on the ceremony occurring on December 10, 2003, presenter Nicole Richie stated regarding her television show: “Why do they even call it ''

The Simple Life ''The Simple Life'' is an American reality television series starring Paris Hilton and Nicole Richie. It depicts the two wealthy socialites, as they struggle to do manual, low-paying jobs such as cleaning rooms, farm work, serving meals in fast ...

''? Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.” In 2004, after those incidents and another incident in January 2003 involving

NBC The National Broadcasting Company (NBC) is an American English-language commercial broadcast television and radio network. The flagship property of the NBC Entertainment division of NBCUniversal, a division of Comcast, its headquarters are l ...

and the 2003

Golden Globes The Golden Globe Awards are accolades bestowed by the Hollywood Foreign Press Association beginning in January 1944, recognizing excellence in both American and international film and television. Beginning in 2022, there are 105 members of ...

, where U2 lead singer Bono called the band's win for

Best Original Song This is a list of categories of awards commonly awarded through organizations that bestow film awards, including those presented by various film, festivals, and people's awards. Best Actor/Best Actress *See Best Actor#Film awards, Best Actress#F ...

"really, really, fucking brilliant" in his acceptance speech,

(FCC) changed its rules on expletives to prohibit "single uses of vulgar words" under any circumstances, including previous instances where it gave leeway for "fleeting" expletives that networks unknowingly allowed to enter the airwaves. Fox was subsequently fined through its

owned and operated In the broadcasting industry, an owned-and-operated station (frequently abbreviated as an O&O) usually refers to a television or radio station owned by the network with which it is associated. This distinguishes such a station from an affiliate ...

television stations group, and challenged its fine in the courts. The

United States Court of Appeals for the Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate ju ...

ruled in the initial case () that the FCC cannot punish broadcast stations for such incidents. The FCC appealed to the Supreme Court, and in the 2009 case, the Supreme Court reversed the Second Circuit, finding that the new policy was not arbitrary. However, the issue of constitutionality was remanded to the Second Circuit, which had not considered the issue initially.

Background

Upon remand to hear the initially deferred issue of constitutionality, the Second Circuit Court of Appeals re-heard the case in January 2010. On July 13, 2010, in a unanimous decision written by Judge Rosemary S. Pooler, the Second Circuit vacated the FCC order and policy on First Amendment grounds, finding that "by prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment." The Second Circuit added The FCC requested that the full Second Circuit hear the case

en banc In law, an en banc session (; French for "in bench"; also known as ''in banc'', ''in banco'' or ''in bank'') is a session in which a case is heard before all the judges of a court (before the entire bench) rather than by one judge or a smaller p ...

, but was denied. The Supreme Court heard oral arguments in this round on January 10, 2012.

Ruling

In an 8–0 decision (Justice

Sonia Sotomayor Sonia Maria Sotomayor (, ; born June 25, 1954) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 26, 2009, and has served since ...

recused herself because she had previously sat on the Second Circuit) written by Justice

, the Supreme Court ruled that because the regulations at the time did not cover "fleeting expletives" (the regulations have since been amended to that end), the fines issued were invalidated as "unconstitutionally vague" under the Due Process Clause. Because the case was resolved on that basis, the Court declined to address the First Amendment implications of the FCC's indecency regulations or to reconsider '' FCC v. Pacifica'', 438 U.S. 726 (1978).

Ginsburg concurrence

Ginsburg authored a one-paragraph concurrence in which she agreed with the decision, but argued that the Supreme Court should have revisited ''Pacifica'', as she felt it was “wrong when it was issued”.

References

External links