Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, June 21, 2012

Supreme Court Rules FCC Did Not Give Broadcasters Notice of Change In Policy in Fox v. FCC

The Supreme Court has handed down its decision in Fox v. FCC, and as we could have expected, its decision is narrow. In a unanimous 8-0 opinion (Justice Sotomayor having recused herself), Justice Kennedy writing for the majority, the Justices held that the FCC's fleeting expletives policy provided no notice to broadcasters. However, the FCC continues to have the authority to regulate indecent speech on the airwaves.

Justice Kennedy wrote in part:

A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. SeeConnally v. General Constr. Co., 269 U. S. 385, 391 (1926) (“[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law”); Papachristou v.Jacksonville, 405 U. S. 156, 162 (1972) (“Living under a rule of law entails various suppositions, one of which is that ‘[all persons] are entitled to be informed as to what the State commands or forbids’ ” (quoting Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) (alteration in original))). This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. See United States v. Williams, 553 U. S. 285, 304 (2008). It requires the invalidation of laws that are impermissibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Ibid. As this Court has explained, a regulation is not vague because it may at times be difficult to prove an incriminating fact but rather because it is unclear as to what fact must be proved. See id., at 306.

Even when speech is not at issue, 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 discriminatory way. See Grayned v. City of Rockford, 408 U. S. 104, 108–109 (1972). When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.

These concerns are implicated here because, at the out-set, the broadcasters claim they did not have, and do not have, sufficient notice of what is proscribed. And leaving aside any concerns about facial invalidity, they contend that the lengthy procedural history set forth above shows that the broadcasters did not have fair notice of what was forbidden. Under the 2001 Guidelines in force when the broadcasts occurred, a key consideration was “ ‘whether the material dwell[ed] on or repeat[ed] at length’ ” the offending description or depiction. 613 F. 3d, at 322. In the 2004 Golden Globes Order, issued after the broadcasts, the Commission changed course and held that fleeting expletives could be a statutory violation. Fox I, 556 U. S., at 512. In the challenged orders now under review the Commission applied the new principle promulgated in the Golden Globes Order and determined fleeting expletives and a brief moment of indecency were action-ably indecent. This regulatory history, however, makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent; yet Fox and ABC were found to be in violation. The Commission’s lack of notice to Fox and ABC that its interpretation had changed so the fleeting moments of indecency contained in their broadcasts were a violation of §1464 as interpreted and enforced by the agency “fail[ed] to provide a person of ordinary intelligence fair notice of what is prohibited.” Williamssupra, at 304. This would be true with respect to a regulatory change this abrupt on any subject, but it is surely the case when applied to the regulations in question, regulations that touch upon “sensitive areas of basic First Amendment freedoms,” Baggett v. Bullitt, 377 U. S. 360, 372 (1964); see also Reno v. American Civil Liberties Union, 521 U. S. 844, 870–871 (1997) (“The vagueness of [a content-based regulation of speech] raises special First Amendment concerns because of its obvious chilling effect”).

The Government raises two arguments in response, but neither is persuasive. As for the two fleeting expletives, the Government concedes that “Fox did not have reason-able notice at the time of the broadcasts that the Com-mission would consider non-repeated expletives indecent.” Brief for Petitioners 28, n. 3. The Government argues, nonetheless, that Fox “cannot establish unconstitutional vagueness on that basis . . . because the Commission did not impose a sanction where Fox lacked such notice.” Ibid. As the Court observed when the case was here three Terms ago, it is true that the Commission declined to impose any forfeiture on Fox, see 556 U. S., at 513, and in its order the Commission claimed that it would not con-sider the indecent broadcasts either when considering whether to renew stations’ licenses or “in any other context,” 21 FCC Rcd., at 13321, 13326. This “policy of forbearance,” as the Government calls it, does not suffice to make the issue moot. Brief for Petitioners 31. Though the Commission claims it will not consider the prior indecent broadcasts “in any context,” it has the statutory power to take into account “any history of prior offenses” when setting the level of a forfeiture penalty. See 47 U. S. C. §503(b)(2)(E). Just as in the First Amendment context, the due process protection against vague regulations “does not leave [regulated parties] . . . at the mercy ofnoblesse oblige.” United States v. Stevens, 559 U. S. ___, ___ (2010) (slip op., at 18). Given that the Commission found it was “not inequitable to hold Fox responsible for [the 2003 broadcast],” 21 FCC Rcd., at 13314, and that it has the statutory authority to use its finding to increase any future penalties, the Government’s assurance it will elect not to do so is insufficient to remedy the constitutional violation.

In addition, when combined with the legal consequence described above, reputational injury provides further rea-son for granting relief to Fox. Cf. Paul v.Davis, 424 U. S. 693, 708–709 (1976) (explaining that an “alteration of legal status . . . combined with the injury resulting from the defamation” justifies the invocation of procedural safeguards). As respondent CBS points out, findings of wrongdoing can result in harm to a broadcaster’s “reputation with viewers and advertisers.” Brief for Respondent CBS Television Network Affiliates Assn. et al. 17. This observation is hardly surprising given that the challenged orders, which are contained in the permanent Commission record, describe in strongly disapproving terms the indecent material broadcast by Fox, see, e.g., 21 FCCRcd., at 13310–13311, ¶30 (noting the “explicit, graphic, vulgar, and shocking nature of Ms. Richie’s comments”), and Fox’s efforts to protect children from being exposed to it, see id., at 13311, ¶33 (finding Fox had failed to exercise “ ‘reasonable judgment, responsibility, and sensitivity to the public’s needs and tastes to avoid [a] patently offensive broadcas[t]’ ”). Commission sanctions on broadcasters for indecent material are widely publicized. See, e.g.,F. C. C. Fines Fox, N. Y. Times, Feb. 26, 2008, p. E2; F. C. C. Plans Record Fine for CBS, Washington Post, Sept. 24, 2004, p. E1. The challenged orders could have an adverse impact on Fox’s reputation that audiences and advertisers alike are entitled to take into account.

With respect to ABC, the Government with good reason does not argue no sanction was imposed. The fine against ABC and its network affiliates for the seven seconds of nudity was nearly $1.24 million. See Brief for Respondent ABC, Inc., et al. 7 (hereinafter ABC Brief). The Government argues instead that ABC had notice that the scene in NYPD Blue would be considered indecent in light of a 1960 decision where the Commission declared that the “televising of nudes might well raise a serious question of programming contrary to 18 U. S. C. §1464.” Brief for Petitioners 32 (quoting Enbanc Programming Inquiry, 44 FCC 2303, 2307 (internal quotation marks omitted)). This argument does not prevail. An isolated and ambiguous statement from a 1960 Commission decision does not suffice for the fair notice required when the Government intends to impose over a $1 million fine for allegedly impermissible speech. The Commission, furthermore, had released decisions before sanctioning ABC that declined to find isolated and brief moments of nudity actionably indecent. See,e.g., In re Application of WGBH, 69 F. C. C. 2d, at 1251, 1255 (declining to find broadcasts contain- ing nudity to be indecent and emphasizing the difference between repeated and isolated expletives); In re WPBN/WTOM License Subsidiary, Inc., 15 FCC Rcd. 1838, 1840 (2000) (finding full frontal nudity in Schind- ler’s List not indecent). This is not to say, of course, that a graphic scene from Schindler’s List  involving nude concentration camp prisoners is the same as the shower scene from NYPD Blue. It does show, however, that the Government can point to nothing that would have given ABC affirmative notice that its broadcast would be considered actionably indecent. It is likewise not sufficient for the Commission to assert, as it did in its order, that though “the depiction [of nudity] here is not as lengthy or repeated” as in some cases, the shower scene nonetheless “does contain more shots or lengthier depictions of nudity” than in other broadcasts found not indecent. 23 FCC Rcd., at 3153. This broad language fails to demonstrate that ABC had fair notice that its broadcast could be found indecent. In fact, a Commission ruling prior to the airing of the NYPD Blue episode had deemed 30 seconds of nude buttocks “very brief” and not actionably indecent in the context of the broadcast. See Letter from Norman Goldstein to David Molina, FCC File No. 97110028 (May 26, 1999), in App. to Brief for Respondent ABC Television Affiliates Assn. et al. 1a; see also Letter from Edythe Wise to Susan Cavin, FCC File No. 91100738 (Aug. 13, 1992), id., at 18a, 19a. In light of this record of agency decisions, and the absence of any notice in the 2001 Guidance that seven seconds of nude buttocks would be found indecent, ABC lacked constitutionally sufficient notice prior to being sanctioned.

The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.

It is necessary to make three observations about the scope of this decision. 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. It is argued that this Court’s ruling in Pacifica (and the less rigorous standard of scrutiny it provided for the regulation of broadcasters, see 438 U. S. 726) should be overruled because the rationale of that case has been overtaken by technological change and the wide availability of multiple other choices for listeners and viewers. See, e.g., ABC Brief 48–57; Brief for Respondent Fox Television Stations, Inc., et al. 15–26. The Government for its part maintains that when it licenses a conventional broadcast spectrum, the public may assume that the Government has its own interest in setting certain standards. See Brief for Petitioners 40–53. These arguments need not be addressed here. In light of the Court’s holding that the Commission’s policy failed to provide fair notice it is unnecessary to reconsider Pacifica at this time.

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. The Court adheres to its normal practice of declining to decide cases not before it. See, e.g., Sweatt v. Painter, 339 U. S. 629, 631 (1950) (“Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional ques- tions only in the context of the particular case before the Court”).

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.


Since the Court has refused to reconsider Pacifica, we can expect debate, and litigation, in this area of the law to continue.

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