FCC v. Fox Television Stations, Inc. | |
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Argued November 4, 2008 Decided April 28, 2009 | |
Full case name | Federal Communications Commission, Petitioner v. Fox Television Stations, Respondent |
Docket no. | 07-582 |
Citations | 556 U.S. 502 ( more ) 129 S. Ct. 1800; 173 L. Ed. 2d 738; 2009 U.S. LEXIS 3297 |
Case history | |
Prior | Fox Television Stations, Inc. v. FCC, 489 F.3d 444 (2d Cir. 2007); cert. granted, 552 U.S. 1255(2008). |
Subsequent | On remand, 613 F.3d 317 (2nd Cir. 2010); cert. granted, 564 U.S. 1036(2011); vacated and remanded, FCC v. Fox TV Stations, Inc. , 567 U.S. 239 (2012). |
Holding | |
The Federal Communications Commission had not acted arbitrarily when it changed a long-standing policy and implemented a new ban on even "fleeting expletives" from the airwaves. The Court explicitly declined to decide whether the new rule is constitutional, and sent that issue back to the lower courts for their review. | |
Court membership | |
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Case opinions | |
Majority | Scalia, joined by Roberts, Thomas, Alito; Kennedy (all but Part III–E) |
Concurrence | Thomas |
Concurrence | Kennedy (in part) |
Dissent | Stevens |
Dissent | Ginsburg |
Dissent | Breyer, joined by Stevens, Souter, Ginsburg |
Laws applied | |
Administrative Procedure Act |
Federal Communications Commission v. Fox Television Stations, Inc., 556 U.S. 502 (2009), is a decision by the United States Supreme Court that upheld regulations of the Federal Communications Commission that ban "fleeting expletives" on television broadcasts, finding they were not arbitrary and capricious under the Administrative Procedure Act. [1] The constitutional issue, however, was not resolved and was remanded to the Second Circuit and re-appealed to the Supreme Court for a decision in June 2012. [2]
The case entered the Supreme Court's docket in October 2007 and specifically concerns obscene language broadcast on the Fox television network from two Billboard Music Awards shows from 2002 and 2003. [3] In the 2002 show, presenter Cher said "f**k 'em" regarding people who she believed criticized her; in the 2003 show, presenter Nicole Richie stated regarding her television show: “Why do they even call it The Simple Life ? Have you ever tried to get cow s**t out of a Prada purse? It’s not so f***ing simple.” [4]
In 2004, the FCC prohibited "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. [5] However, the United States Court of Appeals for the Second Circuit ruled in the case Fox et al. v. Federal Communications Commission (06-1760 Archived February 10, 2009, at the Wayback Machine ) that the FCC cannot punish broadcast stations for such incidents. [6]
On the week of March 17, 2008, the Supreme Court announced that it would hear this case. [7] The Supreme Court heard arguments from the case on November 4, 2008, which was also Election Day. Chief Justice John G. Roberts and Associate Justice Antonin Scalia expressed support for the FCC. [8]
The Supreme Court ruled in a 5–4 decision on April 28, 2009, that the Federal Communications Commission had not acted arbitrarily when it changed a long-standing policy and implemented a new ban on even "fleeting expletives" from the airwaves. The Court declined to decide whether the new rule is constitutional, and sent the issue back to the lower courts for their review. Justice Antonin Scalia, in the majority opinion, wrote: "The FCC’s new policy and its order finding the broadcasts at issue actionably indecent were neither arbitrary nor capricious." [9] In the dissenting opinion, Justice John Paul Stevens claimed that this decision was hypocritical given the presence of television commercials for products treating impotence or constipation. [10]
In its decision, "the court did not definitively settle the First Amendment implications of allowing a federal agency to censor broadcasts," [11] and left that issue for the Second Circuit Court of Appeals. However, Justice Clarence Thomas's separate opinion openly stated his willingness to overturn Federal Communications Commission v. Pacifica Foundation and Red Lion Broadcasting Co. v. Federal Communications Commission , the two cases on which all FCC authority rest, even as he joined the majority on procedural grounds.
Upon remand, the Second Circuit addressed the actual Constitutionality of the fleeting expletive rules, striking it down in July 2010. [12] The FCC re-appealed the case. On June 21, 2012, the Court decided the re-appeal narrowly, striking down the fines as unconstitutionally vague, but upholding the authority of the FCC to act in the interests of the general public when licensing broadcast spectrums to enforce decency standards, so long as they are not vague, without violating the First Amendment. [2]
The seven dirty words are seven English-language curse words that American comedian George Carlin first listed in his 1972 "Seven Words You Can Never Say on Television" monologue. The words, in the order Carlin listed them, are: "shit", "piss", "fuck", "cunt", "cocksucker", "motherfucker", and "tits".
Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), was a landmark decision of the United States Supreme Court that upheld the ability of the Federal Communications Commission (FCC) to regulate indecent content sent over the broadcast airwaves.
Michael Kevin Powell is an American attorney and lobbyist who served as the 24th chairman of the Federal Communications Commission from 2001 to 2005. Since leaving office, Powell has since worked as the president of the National Cable & Telecommunications Association (NCTA), a broadband industry trade association.
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WCAV is a television station in Charlottesville, Virginia, United States, affiliated with CBS and Fox. It is owned by Lockwood Broadcast Group alongside low-power ABC affiliate WVAW-LD. The two stations share studios on Rio East Court in Charlottesville; WCAV's transmitter is located on Carters Mountain south of the city.
Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969), was a seminal First Amendment ruling at the United States Supreme Court. The Supreme Court held that radio broadcasters enjoyed free speech rights under the First Amendment, but those rights could be partially restricted by the Federal Communications Commission (FCC) to maintain the public interest in equitable use of scarce broadcasting frequencies. As a result, the FCC's Fairness Doctrine was found to be constitutional.
Ronald Lawrence Buckwalter is an inactive senior United States district judge of the United States District Court for the Eastern District of Pennsylvania.
A fleeting expletive is a non-scripted verbal profanity or obscenity expressed and broadcast during a live television broadcast or radio broadcast. The term appears primarily in discussions of United States broadcasting law.
National Assn. of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007), was a United States Supreme Court case about federal jurisdiction over anti-pollution statutes. Justice Samuel Alito wrote the opinion of the Court, holding that the Endangered Species Act did not require the Environmental Protection Agency to apply additional criteria when evaluating a transfer of pollution control jurisdiction under the Clean Water Act. Justices John Paul Stevens and Stephen Breyer wrote dissenting opinions.
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Robert L. "Bob" Corn-Revere is an American First Amendment lawyer. Corn-Revere is the Chief Counsel at the Foundation for Individual Rights and Expression and was formerly a partner at Davis Wright Tremaine LLP in Washington, D.C. He is regularly listed as a leading First Amendment and media law practitioner by The Best Lawyers in America (Woodward/White), SuperLawyers Washington, D.C., and by Chambers USA . Best Lawyers in America named him as Washington, D.C.’s 2017 “Lawyer of the Year” in the areas of First Amendment Law and Litigation – First Amendment. He was again named as Best Lawyers’ “Lawyer of the Year” for First Amendment Law for 2019 and 2021, and in Media Law for 2022.
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McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), is a case in which the Supreme Court of the United States held that an Ohio statute prohibiting anonymous campaign literature is unconstitutional because it violates the First Amendment to the U.S. Constitution, which protects the freedom of speech. In a 7–2 decision authored by Justice John Paul Stevens, the Court found that the First Amendment protects the decision of an author to remain anonymous.
FCC v. Fox Television Stations, Inc. refers to two related Supreme Court cases:
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'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. 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.
American Broadcasting Cos., Inc. v. Aereo, Inc, 573 U.S. 431 (2014), was a United States Supreme Court case. The Court ruled that the service provided by Aereo, which allowed subscribers to view live and time-shifted streams of over-the-air television on Internet-connected devices, violated copyright laws.
Actionable indecency is a legal doctrine held by the Federal Communications Commission since the 1978 FCC vs. Pacifica case, that broadcast speech can be regulated even if it does not contain the seven dirty words deemed "indecent".
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Federal Communications Commission v. Prometheus Radio Project, 592 U.S. ___ (2021), was a United States Supreme Court case dealing with media ownership rules that the Federal Communications Commission (FCC) can set under the Telecommunications Act of 1996. The case dates back to the Third Circuit rulings from 2002 that have blocked FCC decisions to relax media ownership rules related to cross-ownership of newspapers with television and radio broadcast stations. In the present case, the Supreme Court ruled unanimously in April 2021 that the FCC had not made arbitrary and capricious rulemaking decisions in the context of the Administrative Procedure Act, nor had the requirement to review minority ownership of stations under Congressional mandate as stated in the Third Circuit's ruling, reversing this last ruling and allowing the FCC to proceed to relax cross-media ownership rules.
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Text of FCC v. Fox Television Stations, Inc., 556 U.S. 502(2009) is available from: Cornell CourtListener Google Scholar Justia Oyez (oral argument audio) Supreme Court (slip opinion) (archived)