Supreme Court Rules Against the FCC, but Avoids First Amendment Issues
By Sarah Jeong – Edited by Jennifer Wong
Federal Communications Commission v. Fox Television Stations, Inc., No. 10-1293 (U.S. June 21, 2012)
The Supreme Court ruled last week that the Federal Communication Commission’s (“FCC”) rules on “fleeting expletives” did not give fair notice to networks like Fox and ABC, and were therefore unconstitutionally vague. While all eight justices (Justice Sotomayor recused herself) were unanimous in a judgment against the FCC, Justice Ginsburg split away from the majority opinion, arguing in a separate concurrence that the Supreme Court should overturn its 1978 decision in FCC v. Pacifica Foundation.
In the 1978 Pacifica decision, the Court found that the FCC’s ban on “Filthy Words,” a comedic monologue that listed and repeated several obscene words, did not violate the First Amendment. At the time, the Court declined to decide whether “an occasional expletive […] would justify any sanction.” FCC v. Fox, which addressed a number of instances in which the FCC fined networks for unscripted, fleeting expletives or momentary glimpses of nudity, seemed to be an ideal opportunity to revisit Pacifica.
But the Court ultimately refused to answer the question of whether the FCC had violated the First Amendment, and instead issued a judgment against the FCC on the basis of the Due Process Clause. Justice Kennedy scrutinized the FCC policy against two due process concerns: the concern that “regulated parties” receive fair notice of how to conduct themselves, and the concern that regulators have enough clear and precise guidance to enforce the rules without arbitrariness. Justice Kennedy wrote, “When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity is necessary to ensure that ambiguity does not chill protected speech.”
The Court found that the FCC had failed to give the networks fair notice before imposing sanctions upon them. The FCC based its sanctions on older rulings that the Court described as “isolated and ambiguous.” Its rulings were vague and overly broad, rather than specific, such as simply asserting that one indecent broadcast differed from another non-indecent broadcast by having “more shots or lengthier depictions of nudity.” Furthermore, sanctions were applied haphazardly, with longer depictions of nudity often going without sanction, while shorter ones resulted in fines.
Justice Ginsburg concurred in the judgment in a separate opinion. Her opinion, which was only two sentences long, criticized Pacifica. Although no other justice joined her separate concurrence, Forbes noted that Eugene Volokh believed the majority opinion may have omitted a decision on the First Amendment because the court had split 4-4 on whether or not to overturn Pacifica.
Sarah Jeong is a 2L at Harvard Law School.