Question: Federal Communications Commission v. Fox Television Stations and Federal Communications Commission v. ABC 132 S. Ct. 2307 (2012)

Facts: Three episodes of alleged indecency on network television are at issue in this case. First, at the 2002 Billboard Music Awards, televised by Fox, Cher made the following unscripted remark: "I've also had my critics for the last 40 years saying that I was on my way out every year. So f*** ‘em." Second, during the Fox telecast of the 2003 Billboard Music Awards, Nicole Richie made the following unscripted remark: "Have you ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple." Third, ABC's February 25, 2003, telecast of NYPD Blue displayed the nude buttocks of an adult female character for about seven seconds and the side of her breast for a moment, as she was preparing for a shower. A child portraying her boyfriend's son entered the bathroom during the scene. Then in 2004 the Federal Communications Commission sanctioned NBC for the following remark by Bono, who won an award at the 2003 Golden Globe Awards show: "This is really, really, f***ing brilliant. Really, really great." The FCC found use of the F-word actionably indecent. Reversing prior rulings, the Commission ruled that even fleeting expletives, like the single use of the F-word by Bono, were actionable. The isolated and apparently impromptu nature of the remark did not excuse its indecency. Applying its new policy to the Cher, Richie, and NYPD Blue cases, the FCC then ruled that Fox and ABC had violated the Commission's indecency standards by televising fleeting expletives and fleeting nudity. Fox was not punished, but ABC and its affiliates were fined $1.24 million. The Fox case (Fox I) then went to the United States Court of Appeals for the Second Circuit, which overturned the Commission ruling saying it was "arbitrary and capricious" in that the FCC made a 180- degree turn regarding fleeting expletives without providing a reasoned explanation.

Fox I then went to the Supreme Court in 2009 where the Court of Appeals ruling was reversed with the Court saying that a change in FCC policy must be announced, but detailed justifications are not required as a matter of law. Fox I then returned to the Second Circuit Court of Appeals which struck down the Commission's entire indecency policy finding it unconstitutionally vague because it failed to give broadcasters sufficient notice of what would be considered indecent. In light of that decision, the Second Circuit vacated the forfeiture order against ABC. The federal government sought review of both decisions, which was granted by the Supreme Court leading to the opinion (Fox II) that follows. A Title 18 U.S.C. § 1464 provides that "[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined . . . or imprisoned not more than two years, or both." The Federal Communications Commission (Commission) has been instructed by Congress to enforce § 1464 between the hours of 6 am and 10 pm. This Court first reviewed the Commission's indecency policy in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In Pacifica, the Commission determined that George Carlin's "Filthy Words" monologue was indecent. It contained "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience." Id., at 732. This Court upheld the Commission's ruling.

In 2001, the Commission [in describing] what it considered patently offensive, explained that three factors had proved significant: "(1) [T]he explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of 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." As regards the second of these factors, the Commission explained that "repetition of and persistent focus on sexual or excretory material have been cited consistently as factors that exacerbate the potential offensiveness of broadcasts. In contrast, where sexual or excretory references have been made once or have been passing or fleeting in nature, this characteristic has tended to weigh against a finding of indecency."

B It was against this regulatory background that the three incidents of alleged indecency at issue here took place.

II 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. This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. It requires the invalidation of laws that are impermissibly vague. 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. 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 the broadcasters claim they did not have, and do not have, sufficient notice of what is proscribed. 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 actionably 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." Williams, supra, at 304. 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. The judgments of the United States Court of Appeals for the Second Circuit are vacated, and the cases are remanded.

Questions: 1. Following the Fox I Supreme Court decision in 2009, the case went back down to the Second Circuit Court of Appeals, which ruled that the entire FCC indecency policy was unconstitutional. What constitutional infirmity did the Second Circuit cite in striking down the indecency policy? Explain. Did the Supreme Court in Fox II agree with the Second Circuit Court of Appeals that the FCC indecency policy was unconstitutional in its entirety? Explain.

2. When would an agency ruling be considered "arbitrary or capricious?"

3. Balancing First Amendment considerations (not addressed by the Supreme Court in the Fox II case) with concerns about the social effects of indecent language and behavior, what policy do you personally think the FCC should follow in regulating "fleeting expletives" like those uttered on television by Cher and Nicole Richie? Explain.

4. In commenting on the ongoing indecency debate, The New York Times argued: "The Supreme Court should end all government regulations on the content of broadcasts. Technological change has undermined any justification for limiting the First Amendment rights of broadcast media outlets but not others."40