On June 21, 2012, the U.S. Supreme Court decided Federal Communications Commission v. Fox Television Stations, No. 10-1293, holding that the FCC failed to give Fox and ABC fair notice that fleeting expletives and momentary nudity could be found actionably indecent. As a result, the FCC's standards as applied to certain broadcasts were vague. The Court also dropped a broad hint that it may go further in a future decision.
Title 18 U.S.C. § 1464 bans the broadcast of "any obscene, indecent, or profane language." The Federal Communications Commission began enforcing § 1464 in the 1970s, and in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court found that the FCC's order banning George Carlin's "Filthy Words" monologue passed First Amendment scrutiny. The Court did not decide, however, whether "an occasional expletive ... would justify any sanction." Id. at 750.
Fast-forward thirty-some years to the three incidents at issue in Fox:
- Cher's use of the F-word at the 2002 Billboard Music Awards, broadcast by Fox;
- Nicole Richie's use of the F-word and another four-letter expletive at the 2003 Billboard Music Awards; and
- The exposure of a woman's buttocks and the side of her breast during a 2003 episode of NYPD Blue, broadcast by ABC Television Network.
After these incidents, FCC issued an order declaring for the first time that "fleeting expletives" could be actionable and concluded that the FOX and ABC broadcasts violated this new standard.
The FCC found the Fox broadcasts indecent but declined to propose forfeitures. The Second Circuit reversed, finding the FCC's decision to modify its enforcement regime arbitrary and capricious. In a 2009 decision, the Supreme Court reversed and remanded for the Second Circuit to address Fox's First Amendment arguments. On remand, the Second Circuit found the policy unconstitutionally vague and invalidated it completely.
With regard to the ABC broadcast, the FCC found the display indecent and imposed a monetary forfeiture on each ABC affiliate that aired the episode. The Second Circuit vacated the order in light of its decision in the Fox case.
The Supreme Court observed that, under the 2001 FCC 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, and that the FCC did not provide that mere fleeting expletives could be a statutory violation until its 2004 Order. The Court held that by applying this new principle to broadcasts that occurred in 2002 and 2003, the FCC failed to give Fox and ABC "fair notice of what is prohibited," as required by the Fifth Amendment's Due Process Clause.
Because the Court resolved the case under the Due Process Clause, it did not address the First Amendment implications of the FCC's indecency policy or the 2004 order. The Court noted the arguments (which Justice Ginsburg found persuasive in her concurring opinion) that the rationale of Pacifica "has been overtaken by technological change and the wide availability of multiple other choices for listeners and viewers," but declined to reconsider Pacifica "at this time." The Court did observe that the FCC is "free to modify" its current policy, and that courts are free to review the current policy or any modified policy.
Justice Kennedy delivered the decision of the Court, in which Chief Justice Roberts and Justices Scalia, Thomas, Breyer, Alito, and Kagan joined. Justice Ginsburg filed a concurring opinion. Justice Sotomayor took no part in the consideration or decision of the case.