FCC v. Fox Television Stations, Inc. | |
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Argued January 10, 2012 Decided June 21, 2012 | |
Full case name | Federal Communications Commission, Petitioner v. Fox Television Stations, Respondent |
Docket no. | 10-1293 |
Citations | 567 U.S. 239 ( more ) |
Case history | |
Prior | Judgments for defendant on remand from FCC v. Fox (Fox I), 613 F.3d 317 (2nd Cir. 2010) and 663 F.3d 122 (3rd Cir. 2011); cert. granted, 564 U.S. 1036(2011). |
Holding | |
Failure to give broadcasters fair notice, prior to the broadcasts in question, that fleeting expletives and momentary nudity could be found actionably indecent rendered the Federal Communications Commission's standards unconstitutionally vague as applied to those broadcasts. Second Circuit vacated and remanded. | |
Court membership | |
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Case opinions | |
Majority | Kennedy, joined by Roberts, Scalia, Thomas, Breyer, Alito, and Kagan |
Concurrence | Ginsburg (in judgment) |
Sotomayor took no part in the consideration or decision of the case. | |
Laws applied | |
U.S. Const. amend. V |
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. [1] 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.
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 occurring in 2002 and 2003. [2] On the December 9, 2002 ceremony, while accepting an artist achievement award for her career, Cher said "fuck 'em" regarding people who she believed criticized her; on the ceremony occurring on December 10, 2003, presenter Nicole Richie stated regarding her television show: "Why do they even call it The Simple Life ? Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." [3] [4]
In 2004, after those incidents and another incident in January 2003 involving NBC and the 2003 Golden Globes, where U2 lead singer Bono called the band's win for Best Original Song "really, really, fucking brilliant" in his acceptance speech, Federal Communications Commission (FCC) changed its rules on expletives to prohibit "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] Fox was subsequently fined through its owned and operated television stations group, and challenged its fine in the courts. The United States Court of Appeals for the Second Circuit ruled in the initial case ( [6] ) that the FCC cannot punish broadcast stations for such incidents. [7] The FCC appealed to the Supreme Court, [8] and in the 2009 case, the Supreme Court reversed the Second Circuit, [9] finding that the new policy was not arbitrary. However, the issue of constitutionality was remanded to the Second Circuit, which had not considered the issue initially.
Upon remand to hear the initially deferred issue of constitutionality, the Second Circuit Court of Appeals re-heard the case in January 2010. On July 13, 2010, in a unanimous decision written by Judge Rosemary S. Pooler, the Second Circuit vacated the FCC order and policy on First Amendment grounds, finding that "by prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster's peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment." The Second Circuit added
We do not suggest that the FCC could not create a constitutional policy. We hold only that the FCC's current policy fails constitutional scrutiny." [10]
The FCC requested that the full Second Circuit hear the case en banc, but was denied. The Supreme Court heard oral arguments in this round on January 10, 2012.
In an 8–0 decision (Justice Sonia Sotomayor recused herself because she had previously sat on the Second Circuit) written by Justice Anthony Kennedy, the Supreme Court ruled that because the regulations at the time did not cover "fleeting expletives" (the regulations have since been amended to that end), the fines issued were invalidated as "unconstitutionally vague" under the Due Process Clause. Because the case was resolved on that basis, the Court declined to address the First Amendment implications of the FCC's indecency regulations or to reconsider FCC v. Pacifica , 438 U.S. 726 (1978). [11]
Ginsburg authored a one-paragraph concurrence in which she agreed with the decision, but argued that the Supreme Court should have revisited Pacifica, as she felt it was "wrong when it was issued". [12]
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".
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), was a landmark decision of the Supreme Court of the United States, unanimously ruling that anti-indecency provisions of the 1996 Communications Decency Act violated the First Amendment's guarantee of freedom of speech. This was the first major Supreme Court ruling on the regulation of materials distributed via the Internet.
Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), was a landmark decision of the US Supreme Court that defined the power of the Federal Communications Commission (FCC) over indecent material as applied to broadcasting.
In broadcasting, the watershed is the time of day after which programming with content deemed suitable only for mature or adult audiences is permitted.
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The fairness doctrine of the United States Federal Communications Commission (FCC), introduced in 1949, was a policy that required the holders of broadcast licenses both to present controversial issues of public importance and to do so in a manner that fairly reflected differing viewpoints. In 1987, the FCC abolished the fairness doctrine, prompting some to urge its reintroduction through either Commission policy or congressional legislation. However, later the FCC removed the rule that implemented the policy from the Federal Register in August 2011.
In American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand. This is because constitutionally permissible activity may not be chilled because of a statute's vagueness. There are several reasons a statute may be considered vague; in general, a statute might be void for vagueness when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. For example, criminal laws which do not state explicitly and definitely what conduct is punishable are void for vagueness. A statute is also void for vagueness if a legislature's delegation of authority to judges or administrators is so extensive that it could lead to arbitrary prosecutions. A law can also be "void for vagueness" if it imposes on First Amendment freedom of speech, assembly, or religion.
Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), followed by 542 U.S. 656 (2004), was a decision of the United States Supreme Court, ruling that the Child Online Protection Act (COPA) was unconstitutional as a violation of the First Amendment's guarantee of freedom of speech.
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.
New York v. Ferber, 458 U.S. 747 (1982), was a landmark decision of the U.S Supreme Court, unanimously ruling that the First Amendment to the United States Constitution did not forbid states from banning the sale of material depicting children engaged in sexual activity, even if the material was not obscene.
Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), was a landmark decision of the U.S. Supreme Court concerning the First Amendment and the ability of the government to outlaw certain forms of expressive conduct. It ruled that the state has the constitutional authority to ban public nudity, even as part of expressive conduct such as dancing, because it furthers a substantial government interest in protecting the morality and order of society. This case is perhaps best summarized by a sentence in Justice Souter's concurring opinion, which is often paraphrased as "Nudity itself is not inherently expressive conduct."
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.
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. 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.
Between 1990 and 2004, the Federal Communications Commission (FCC) issued fines totaling $2.5 million to radio licensees for airing material it deemed indecent from The Howard Stern Show, the highest amount of any American radio show. The Supreme Court had provided broadcasting guidelines for indecent material in its 1978 ruling in its landmark decision, in which the court prohibited the "seven dirty words" made famous by comedian George Carlin. The FCC had received complaints about Howard Stern as early as 1981, but its limited power at the time prevented further action taking place.
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.
FCC v. Fox Television Stations, Inc. refers to two related Supreme Court cases:
United States obscenity law deals with the regulation or suppression of what is considered obscenity and therefore not protected speech under the First Amendment to the United States Constitution. In the United States, discussion of obscenity typically relates to defining what pornography is obscene, as well as to issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. State laws operate only within the jurisdiction of each state, and there are differences among such laws. Federal statutes ban obscenity and child pornography produced with real children. Federal law also bans broadcasting of "indecent" material during specified hours.
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