June 21, 2012
Supreme Court on FCC v. Fox and ABC: Fleeting Expletive and Nudity Rules Violated Due Process
In a relatively brief (and almost unanimous) opinion today - - - a mere 23 pages - - - the Court decided FCC v. Fox Television Stations (together with FCC v. ABC, Inc.) involving fleeting expletives and fleeting nudity.
Justice Kennedy's opinion for the Court spends the first 11 pages discussing the regulatory scheme and reciting the complicated history of this litigation. Recall that the precise issue before the Court prompted confusion at oral argument.
The opinion resolves - - - or perhaps sidesteps - - - this disarray by deciding the case on Fifth Amendment Due Process grounds, holding that the FCC regulations were unconstitutionally vague. As Kennedy wrote, the "void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discrimina tory way." The opinion the added: "When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech."
Thus, while the Court does not resolve the case on First Amendment grounds, it certainly uses First Amendment concerns to animate the due process analysis.
Yet the analysis itself is truncated and interestingly augmented by a discussion of what the Court did not hold:
- "First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy."
- "This leads to a second observation. Here, the Court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies. Given this disposition, it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and sub sequent adjudications."
- "Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaves the courts free to review the current policy or any modified policy in light of its content and application."
The decision is not quite unanimous not only because Justice Sotomayor did not participate, but because Justice Ginsburg concurred in the judgment only, writing a brief concurring opinion:
In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration. Cf. FCC v. Fox Television Stations, Inc., 556 U. S. 502, 532–535 (2009) (THOMAS, J., concurring).
Thus, it seems that the indeterminate status of fleeting expletives and nudity in regulated media continues.
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Although FCC v. Fox TV comes as a disappointment to First Amendment scholars, it has two interesting features for admin law and general con law profs. First, its reasoning supports lower court case law holding that due process prevents agencies from imposing penalties based on unforeseen interpretations of their regulations, even if those interpretations would otherwise be upheld under the deferential standards of judicial review normally applied to regulatory interpretations. See, e.g., Trinity Broadcasting v. FCC, 211 F.3d 618 (D.C. Cir. 2000). Second, it recognizes a "reputational injury" for procedural due process purposes. As far I can recall, that's the first time the Court's done so since Paul v. Davis threw cold water on allegations of stigmatic injury as a ground for procedural due process claims. In Fox, the Court found the so-called "stigma-plus" test of Paul v. Davis satisfied because it was accompanied by the legal consequence that Fox could face stiffer future penalties because of the FCC's finding of "actionable indecency." And yet the Court's finding of reputational injury is still odd, because seemingly unnecessary: the legal consequence alone was enough to implicate due process.
Posted by: Richard Seamon | Jul 7, 2012 8:28:31 PM