FCC v Fox: The Supreme Court finds fleeting indecency standards unconstitutionally vague but avoids First Amendment issue

On June 21, 2012 the United States Supreme Court issued its opinion in FCC v. Fox Television Stations, Inc., sidestepping a ruling on whether the current indecency policy applied to broadcasters violates the First Amendment. FCC v. Fox Television Stations, Inc., No. 10-1293, 2012 U.S. LEXIS 4661 (June 21, 2012). Instead, the Court deftly disposed of the matter on the unique facts of the case—holding that the decency policy failed on fair notice grounds under the due process clause. Id. The underlying case has been a widely watched case of constitutional ping-pong between the Supreme Court and the Second Circuit involving the FCC, Fox, and ABC. At issue are “fleeting expletives,” not so fleeting expletives, and partial nudity, all the makings for an important case, but the Court declined the opportunity.

In 1978 in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Court upheld the FCC’s power to regulate the broadcast of patently offensive words. At issue was George Carlin’s famous seven “filthy” words monologue. Finding that it was “patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, and at times of the day when there is a reasonablerisk that children may be in the audience.” 56 FCC 2d at 98, the FCC found the broadcast sanctionable but did not actually impose any fines. Id. at 732. In Pacifica, the Supreme Court found that the First Amendment did not deny the government the power to regulate public broadcast of indecent language because “broadcast media have established a uniquely pervasive presence in the lives of all Americans [and] . . . broadcasting is uniquely accessible to children, even those too young to read.” Id. at 748-49.

Beginning in 1987, the Commission indicated it would use a “generic definition of indecency” and “assess the full context of allegedly indecent broadcasts rather than limiting its regulation to a ‘comprehensive index . . . of indecent words or pictorial depictions.’” Fox, 2012 U.S. LEXIS 4661 at *8. In the ensuing years, FCC modified its policy and in 2001, issued Industry Guidance on Commission’s Case Law Interpreting 18 U.S.C. §1461 and enforcement policies regarding broadcast indecency. 16 FCC Rcd. 7999. In that Guidance, FCC reiterated the Pacifica rule and identified three factors it would consider for enforcement:

(1) [T]he explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities;

(2) whether the material draws on or repeats at length description of the sexual or excretory organs or activities;

(3) whether the material appears to pander or is used to titillate or whether the material appears to have been presented for its shock value. Id. at 8003.

At issue in FCC v. Fox was the application of 18 U.S.C. §1464, providing that “whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined . . . or imprisoned not more than two years, or both.”

There were three instances of indecency:

• Cher saluted critics in an acceptance speech stating, “FŸŸŸ ···‘em.”
• Nicole Richie described “trying to remove cow’s sŸŸŸ··· out of a Prada purse” stating it was “not so fŸŸŸ···ing simple,” and
• NYPD Blue broadcast 30 seconds of nude buttocks of an adult female.

Fox, 2012 U.S. LEXIS 4661 at *12.

In 2004, after these incidents and a number of additional “fleeting expletives” by celebrities, FCC declared the F-word “actionably indecent” as “one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language” and issued guidance taking a different approach to “isolated incidents.” Fox, 2012 U.S. LEXIS 4661 at *12. FCC’s new approach provided that the mere fact that specific words or phrases are not sustained or repeated does not rule out a finding of indecency for only a single use. The FCC recognized its “new approach”—adopted long after the Fox and ABC broadcasts—could not have provided adequate notice to the broadcasters. Accordingly, the FCC did not impose penalties for the Fox broadcast but did fine ABC for the NYPD Blue broadcast, finding the scene “patently offensive as measured by contemporary community standards.” Id. at 12.

In its first foray to the Supreme Court, the Court found that FCC’s regulation of decency was neither arbitrary nor capricious, the FCC had a rational basis for expanding the scope of its enforcement activity, and recognized that the FCC’s decision to “look at the patent offensiveness of even isolated uses of sexual or excretory words fits with the content-based approach [approved] . . . in Pacifica.” FCC v. Fox Televisions Stations, Inc., 556 U.S. 502, 517 (2009). Notably, the Court refused to reconsider the “less rigorous standard of [constitutional] scrutiny it provided for the regulation of broadcasters” in its landmark decision in Pacifica. Id. at 514-16.The Court remanded the case to the Second Circuit to consider the Constitutional issues. Id.at 530.

The Second Circuit addressed the respondent’s First Amendment challenges and found the FCC’s indecency policy unconstitutionally vague and invalidated the policy in its entirety. Fox Television Stations, Inc. v. FCC, 613 F.3d 317, 327 (2d Cir. 2009). The Second Circuit recognized inconsistency in how the FCC had enforced its rule, concluding that the application of exceptions created by the FCC “left broadcasters guessing whether an expletive would be deemed artistically integral to a program or whether a broadcast would be considered a bona fide news interview.” Fox, 613 F.3d at 334. The Second Circuit found the “vagueness inherent in the policy forced broadcasters to choose between not airing . . . controversial programs [or] risking massive fines and possibly even loss of their license.” Id. Based on the ruling by the Second Circuit, the case found its way back to the Supreme Court.

The Supreme Court stated that due process requires (1) that “regulated parties should know what is required of them so they may act accordingly”; and (2) “precision and guidance are necessary so that those enforcing the law do not act in an arbitrary and discriminatory way.” Fox, 2012 U.S. LEXIS 4661 at *24. The Court stated that “when speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.” Id. Thus, before the Court would get to the First Amendment question it required rigorous adherence to the due process requirements and, citing well-established precedent, stated as follows:

• 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. See Connally 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.” Id. at 11-12.

The Court noted that the FCC “policy in place at the time of the broadcast gave no notice to Fox or ABC that the fleeting expletive or a brief nudity could be actionably indecent.” Id. at 13. Although the Court did not reach the First Amendment issue, it applied a strict application of due process finding that the fair notice requirement would be problematic for any regulatory change but is particularly so “when applied to regulations in question, regulations, which touch upon ‘sensitive areas of basic First Amendment freedoms.’” Id. The Court rejected the government “policy of forbearance” as sufficient to render the constitutional issue moot stating that “due process protection against vague regulations ‘does not leave [regulated parties] . . . at the mercy of noblesse oblige’ . . . [and] the government’s assurance that it will elect not to [take regulatory action] is insufficient to remedy the constitutional violation.” Id.at 14. Coincidentally, in an unrelated case also addressing regulated citizens relying on the generosity of nobility sitting in regulatory judgment, also on June 21, 2012, in Christopher v Smithkline, No. 11-204 2012 LEXIS 4657_(June 18, 2012) the Court refused to give deference to an agency’s interpretation of its own ambiguous regulations stating:

• “[deference] creates a risk that agencies will promulgate vague and open-ended regulations that they can later interpret as they see fit, thereby “frustrat[ing] the notice and predictability pur­poses of rulemaking.” It is one thing to expect regulated parties to conform their conduct to an agency’s interpretations once the agency announces them; it is quite another to require regulated parties to divine the agency’s interpretations in advance or else be held liable when the agency announces its interpretations for the first time in an enforcement proceeding and de­mands deference… We instead accord the Department’s interpretation a measure of deference propor­tional to the “‘thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade.’” United Statesv. Mead Corp., 533 U.S. 218, 228 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).

In FCC v Fox, the Court was asked to reconsider its ruling in Pacifica and to overrule its holding and require heightened scrutiny of governmental action under the First Amendment. Although the Court applied a strict due process analysis in light of First Amendment issues, it expressly did not reach Pacificaor the First Amendment implications of the Commission’s indecency policy. The Court vacated the judgments of the Second Circuit and expressly left the FTC free to modify its policy in light of the Court’s opinion. Fox, 2012 U.S. LEXIS 4661 at *32. Seven Justices joined the opinion, Justice Sotomayor did not participate and Justice Ginsberg wrote a short concurring opinion addressing Pacifica stating, “In my view the Court’s decision in [Pacifica] was wrong when it issued. Id. at *32 (Ginsburg, J., concurring in judgment). Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.” Id.

At the heart of FTC v Fox is how the government restricts and punishes speech, but the Court has put off for another day whether Pacifica will be overruled and the government will be subject to strict scrutiny under the First Amendment in the regulation of broadcast content. Regulatory vagueness and uncertainty and the potential for fines, criminal sanctions, and tarnished reputations restrict the free flow of information and cripple free speech. For now, it remains for the FCC to define and regulate the boundaries of decency. Although Congress might consider tackling this significant societal First Amendment issue, it appears too busy calling balls and strikes in baseball’s performance enhancing substance scandal and deciding to regulate boxing to concern itself with something as mundane as crafting the parameters of free speech for broadcasters.