Advisories

On July 13, 2010, a unanimous U.S. Court of Appeals for the 2nd Circuit issued a decision in Fox Television Stations v. FCC that invalidated on First Amendment grounds the Federal Communication Commission’s (FCC’s) current policy for enforcing the ban on “indecent” broadcasts. The court held the current policy to be impermissibly vague, creating a chilling effect that extends “far beyond” a recent change that brought “fleeting expletives” within the indecency prohibition.

The decision follows the U.S. Supreme Court’s reversal of a prior 2nd Circuit decision that FCC abandonment of its previously restrained enforcement policy, which included not imposing fines for isolated, “fleeting” expletives, was arbitrary and capricious. The Supreme Court’s decision, which was accompanied by expressions of First Amendment concern by several concurring and dissenting justices, set the stage for the 2nd Circuit to reach the constitutional question, and it dug in, with relish.

Writing that “[b]roadcasters are entitled to the same degree of clarity as other speakers, even if restrictions on their speech are subject to a lower level of scrutiny,” the 2nd Circuit decided what it called “questions left unresolved” by FCC v. Pacifica, the Supreme Court’s well-known 1978 “seven dirty words” opinion upholding general FCC authority over broadcast indecency. The court disavowed any suggestion the FCC could not create a constitutional policy, but stressed it “should bend over backwards to create a standard that gives broadcasters the notice that is required by the First Amendment.”

The decision in Fox on remand from the Supreme Court is the culmination of challenges to the FCC’s stricter indecency enforcement following an unguarded remark by rock singer Bono on a Golden Globe Awards broadcast and singer Janet Jackson’s 2004 Super Bowl halftime performance. The 2nd Circuit traced the history of indecency enforcement after Pacifica and found that, until recently, the FCC had followed a restrained enforcement policy toward broadcast indecency. But the court observed that the FCC’s more recent approach was anything but restrained.

It reviewed the FCC’s crackdown that started in Golden Globe, and focused in particular on the decision to begin imposing indecency fines for fleeting, unscripted material in live broadcasts. Although the 2nd Circuit declined to “wade into the brambles” of Pacifica’s precise contours and whether it survives evolution of media and parental controls in the last three decades, it nevertheless applied long-standing constitutional “void for vagueness” principles to find the indecency prohibition is not clearly defined.

The 2nd Circuit held that FCC enforcement standards are too unpredictable to survive First Amendment scrutiny, finding that the lack of discernible guidelines has significantly chilled broadcast speech. It expressed sympathy that the need to avoid vagueness “may expose a certain futility in the FCC's crusade against indecent speech,” but also observed that broadcasters “simply want to know with some degree of certainty what the policy is so they can comply with it.” The First Amendment, it concluded, “requires nothing less.”

The court rejected the idea that the FCC needs broad flexibility to define what is indecent, noting that “[i]f the FCC cannot anticipate what will be [ ] indecent under its policy, then it can hardly expect broadcasters to do so.” It also rejected attempts to use exemptions for “bona fide news” and/or “artistic necessity.” The court explained that such “indiscernible standards ... risk [being] enforced in a discriminatory manner,” and “even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment.”

The 2nd Circuit’s decision is a victory for broadcasters, with whom the court expressed sympathy, noting their “good faith desire to comply with the FCC’s indecency regime” despite is vagueness. The ruling prevents the FCC from enforcing the indecency prohibition against “fleeting expletives” as well as from enforcing it in any manner that fails to put broadcasters on clear notice what is prohibited. The FCC may seek Supreme Court review, or it may once again seek to articulate a new standard for indecency in the hope of surviving First Amendment scrutiny.