6/21. The Supreme Court issued its
opinion [23 pages
in PDF] in FCC v. Fox Television, the long running proceeding regarding the
Federal Communications Commission's (FCC) attempt to fine television broadcasters for
unscripted fleeting expletives and nudity nearly a decade ago.
Summary. The Court of Appeals held in 2010 that the FCC violated the First
Amendment free speech rights of broadcasters. The Supreme Court vacated. It held
that the FCC failed to give notice, in violation of the Fifth Amendment due
process clause. It added that it did "not address the First Amendment implications of the
Commission's indecency policy".
On the one hand, the Supreme Court has left in place a judicial interpretation (FCC v.
Pacifica) of the First Amendment that is hopelessly outdated in light of new programming
delivery platforms, and parental control technologies. The FCC remains free, for now, to
regulate and censor indecent content on broadcast television, and impose fines, provided
that it has given advance notice of what is prohibited by its regulatory regime.
On the other hand, the Supreme Court may merely have ducked the First Amendment issue in
order to decide it another day. In the just released opinion, Justice Ruth Ginsburg stated
in a separate opinion, that she is ready to overturn the landmark opinion upon which FCC
authority to censor broadcast indecency is based, FCC v. Pacifica
Also, while the Justice Clarence Thomas quietly joined in the opinion of the Court in the
present opinion, he wrote in a concurring opinion to the Supreme Court's 2009 opinion in this
proceeding that when the First Amendment issue is before the Court, he is ready to overturn
not only Pacific, but also Red Lion.
On July 13, 2010, the U.S. Court of
Appeals (2ndCir) issued its
opinion [32 pages in PDF] holding that the FCC's indecency policy "violates
the First Amendment because it is unconstitutionally vague, creating a chilling
effect that goes far beyond the fleeting expletives at issue here".
The just released Supreme Court opinion vacates the judgments of the Court of Appeals, and
remands. The Court held that the FCC "failed to give Fox or ABC fair notice prior to the
broadcasts in question that fleeting expletives and momentary nudity could be found actionably
This disposition, it should be noted, also fails to put members of Congress, FCC officials
and television broadcasters on notice regarding what are the First Amendment free speech clause
limitations upon Congressional or FCC censorship of indecent speech.
While "It is emphatically the province and duty of the judicial department to
say what the law is", Marbury v. Madison, 5 U.S. 137 (1803), after two
Court of Appeals opinions, and two Supreme Court opinions, the nation is still
left without a clear statement of what the law is on this key issue.
Constitution. The First Amendment provides in part that "Congress
shall make no law respecting ... the freedom of speech, or of the press ...".
However, the Supreme Court has construed this clause as if it provided that
"Congress may make laws limiting freedom of speech ... if they satisfy the
evolving standards or principles set by the Judiciary".
In particular, the Supreme Court has held that the FCC, which derives it
authority from Congressional statute, may regulate television broadcast speech
which it deems indecent.
opinion in FCC v. Pacifica Foundation, 438 U.S. 726. That opinion upheld the FCC's
order penalizing the broadcast of a dirty words monologue by a comedian named George Carlin.
See also, 1969 opinion in Red Lion
v. FCC, 395 U.S. 367. That opinion upheld the FCC's regulatory regime named
"fairness doctrine", under which the FCC compelled speech.
The Fifth Amendment provides in part that "No person shall ... be deprived of
life, liberty, or property, without due process of law ..."
Administrative History: the FCC Fines. The just released opinion
relates to FCC penalties imposed on television broadcasters for unscripted or
fleeting statements or nudity dating back to 2002.
The FCC relied upon
18 U.S.C. § 1464, which provides in full that "Whoever utters any obscene,
indecent, or profane language by means of radio communication shall be fined
under this title or imprisoned not more than two years, or both."
However, neither the statute, nor any FCC rule, provided that
fleeting expletives and momentary nudity could be found actionably indecent.
On November 6, 2006, the FCC adopted and released an
Order [36 pages in PDF] regarding complaints that four broadcast television
programs contained indecent and/or profane material within the meaning of
§ 1464. This order is FCC 06-166.
The Order concluded, among other things, that comments made by Nicole Richie
during "The 2003 Billboard Music Awards" and by Cheryl LaPiere during the "The
2002 Billboard Music Awards" were indecent and profane. Both used the word
"fuck" in unscripted live statements.
LaPiere said, "I've also had my critics for the last 40 years
saying that I was on my way out every year. Right. So fuck 'em." Richie said,
"Have you ever tried to get cow shit out of a Prada purse? It's not so fucking
simple." The Supreme Court noted that the episode of an ABC television program
titled "NYPD Blue" at issue disclosed "nude buttocks of an adult female
character for approximately seven seconds and for a moment the side of her breast".
See also, stories titled "FCC Releases Indecency Orders" in
TLJ Daily E-Mail
Alert No. 1,332, March 20, 2006, and "FCC Releases Order on Remand Regarding
Broadcast Indecency" in
TLJ Daily E-Mail
Alert No. 1,484, November 7, 2006.
Judicial History. Broadcasters filed petitions for review with the
Court of Appeals. In 2007, the U.S. Court
of Appeals (2ndCir) vacated the order of the FCC on the grounds that the FCC
violated the Administrative Procedure Act (APA). It did not rule on the First
Amendment issues, but suggested that the FCC order would not satisfy First
Amendment scrutiny. In 2009, the Supreme Court reversed, on APA grounds, without
addressing the First Amendment issues. The Second Circuit, on remand in 2010,
issued its second opinion, and again vacated the FCC order -- this time on First
Broadcasters fined by the FCC, including Fox Television Stations and ABC,
filed petitions for review of the FCC's order with the Second Circuit. They
argued both that the order is arbitrary and capricious in violation of the APA,
and unconstitutional under the First Amendment.
On June 4, 2007, the Court of Appeals issued its divided opinion finding that
"the FCC's new policy sanctioning ``fleeting expletives´´ is arbitrary and
capricious" under the APA. The Court of Appeals did not also rule on the
Constitutional challenge, but strongly hinted that if required to address that
issue, it would find the FCC's policy unconstitutional. See,
titled "2nd Circuit Vacates and Remands FCC Profanity Order" in
TLJ Daily E-Mail
Alert No. 1,590, June 4, 2007. That opinion is reported at 489 F. 3d 444.
The FCC did not then withdraw or modify its order. Rather, it petitioned the
Supreme Court for writ of certiorari. On April 28, 2009, the Supreme Court
issued its divided
pages in PDF], reversing the Court of Appeals.
The Supreme reversed and remanded in a 5-4 split. Justice Scalia wrote the majority
opinion in which Justices Roberts, Thomas, Alito and Kennedy joined. The majority ruled
solely on the APA issue: "We find no basis in the Administrative Procedure Act or in
our opinions for a requirement that all agency change be subjected to more searching review.
The Act mentions no such heightened standard."
The Court wrote that the Constitutional issues "will be determined soon enough, perhaps
in this very case. ... We see no reason to abandon our usual procedures in a rush to judgment
without a lower court opinion. We decline to address the constitutional questions at this
See, story titled "Supreme Court Reverses in FCC v. Fox" in
TLJ Daily E-Mail
Alert No. 1,932, April 28, 2009.
On July 13, 2010, the Second Circuit issued its
opinion [32 pages in PDF], on remand from the Supreme Court. That opinion is
also reported at 613 F. 3d 317.
It held that the FCC's indecency policy "violates the First Amendment because
it is unconstitutionally vague, creating a chilling effect that goes far beyond
the fleeting expletives at issue here". It vacated the FCC's order.
See also story titled "2nd Circuit Holds FCC Indecency Policy Violates First
Amendment" in TLJ
Daily E-Mail Alert No. 2,103, July 13, 2010.
The government again sought review by the Supreme Court.
Opinion of the Supreme Court. Justice Anthony Kennedy wrote the just
released opinion of the Supreme Court. Chief Justice Roberts, and Associate
Justices Scalia, Thomas, Breyer, Alito, and Kagan joined. Justice Ginsburg wrote
a separate opinion. Justice Sonia Sotomayor did not participate.
The Court wrote that "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." It added that "This requirement of clarity in regulation
is essential to the protections provided by the Due Process Clause of the Fifth
This principle "requires the invalidation of laws that are impermissibly
vague." The Court elaborated that a punishment fails to comply with due process
if a 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."
Moreover, the Court wrote, there are two elements: "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."
The Court then wrote that the regulatory history of this proceeding "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" FCC failed to provide fair
The FCC "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."
Back in 2007, in its first opinion, the Supreme Court held that this change of interpretation
of the statute did not amount to a violation of the APA. In this opinion, the Supreme Court
holds that it does amount to a violation of the 5th Amendment due process clause.
The Court ducked the First Amendment issue, and by failing to address whether
Pacifica remains good law, left Pacifica in place, at least until
the Court decides to decide.
The Court added that "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 ... 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." However, "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."
Finally, the Court wrote this: "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."
Ginsburg Opinion. Justice Ruth Ginsburg wrote a one paragraph
opinion, labeled as "concurring in judgment".
She wrote that "In my view, the Court's
decision in FCC v. Pacifica Foundation ... was wrong when it issued. Time,
technological advances, and the Commission's untenable rulings in the cases now
before the Court show why Pacifica bears reconsideration."
She also referenced Justice Thomas concurring opinion in the Supreme Court's
Justice Thomas. Justice Clarence Thomas joined in the opinion of the
Court in the just released opinion. However, he wrote a concurring opinion to
the Supreme Court's 2009 opinion. At that time he suggested that he was ready to
overturn both Red Lion and Pacifica.
His failure to write a separate opinion to the just released opinion may
indicate that he has retreated from his 2009 stand. Or, it may be the case that
having expressed his views in 2009, it would have been redundant and unnecessary
to restate them.
In 2009, Thomas noted "the questionable viability of the two precedents that
support the FCC's assertion of constitutional authority to regulate the
programming at issue in this case. ... Red Lion and Pacifica were unconvincing
when they were issued, and the passage of time has only increased doubt
regarding their continued validity."
He reviewed the scarcity and pervasiveness rationales, and concluded that these opinions
expound a "legal rule that lacks any textual basis in the Constitution", and that
they possess "logical weakness" as well as "doctrinal incoherence".
He continued that "even if this Court's disfavored treatment of broadcasters
under the First Amendment could have been justified at the time of Red Lion and
Pacifica, dramatic technological advances have eviscerated the factual
assumptions underlying those decisions. Broadcast spectrum is significantly less
scarce than it was 40 years ago."
Moreover, "traditional broadcast television and radio are no longer the
``uniquely pervasive´´ media forms they once were. For most consumers,
traditional broadcast media programming is now bundled with cable or satellite
services. ... Broadcast and other video programming is also widely available
over the Internet. ... And like radio and television broadcasts, Internet access
is now often freely available over the airwaves and can be accessed by portable
computer, cell phones, and other wireless devices. ... The extant facts that
drove this Court to subject broadcasters to unique disfavor under the First
Amendment simply do not exist today."