New Policy Was Too Vague to Put Broadcasters on Notice

On June 21, 2012, the U.S. Supreme Court decided FCC v. Fox Television Stations by holding that Federal Communications Commission (FCC) decisions targeting "fleeting" broadcasts of allegedly indecent material were unconstitutional under the Due Process Clause. The decision reviewed FCC indecency findings against utterances of expletives by performers on Fox's live 2002 and 2003 Billboard Music Awards shows, and a scene from ABC's NYPD Blue depicting the nude buttocks of an adult actress for seven seconds and the side of her breast momentarily. The Court reached the same ultimate outcome as the 2nd Circuit, which invalidated the FCC's actions on grounds its revised indecency regime was unconstitutionally vague under the First Amendment, though the Supreme Court did so on Due Process rather than First Amendment grounds. It thus vacated the decision below.

Justice Kennedy's unanimous 8-0 opinion (Judge Sotomayor having taken no part in the case) held the FCC standards, as revised in its indecency crackdown commencing in 2004, "as applied to these broadcasts were vague, and the Commission's orders must be set aside." The Court declined to address the overall constitutionality of the current indecency policy as revised by the FCC's 2004 Golden Globes decision on "fleeting expletives," and it did not address whether the 1978 Supreme Court decision in FCC v. Pacifica Foundation, Inc. is still valid. The Fox decision states that it leaves the FCC free to modify its current indecency policy in light of Fox and "other applicable legal requirements," and lower courts free to review that or any modified policy based on its content and application.

Though Fox presented such broad issues as whether the overall FCC indecency regime is unconstitutionally vague, and whether there remain grounds to treat "indecent" speech on broadcast media differently from such content on media like cable and the Internet (where it gets full First Amendment protection), the narrow decision invalidated the FCC's indecency findings on traditional Due Process grounds. Justice Kennedy's opinion held that Fox and ABC lacked constitutionally sufficient notice of the FCC's policy as applied to these broadcasts, because the FCC historically had exempted fleeting material from its indecency enforcement policy. As such, application of the policy to the broadcasts at issue was "void for vagueness" under the Due Process Clause of the Fifth Amendment.

As the Court explained, this doctrine applies generally to all laws, and requires that regulated parties are able to know what is expected of them, and regulators to have guidelines that prevent arbitrary enforcement. The opinion adds, however, that these requirements have special force in the First Amendment context to avoid chilling speech. Here, the Court held, the FCC's regulatory history "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."

In particular, all the shows at issue aired before the FCC rendered its Golden Globes decision, which reversed course on such "fleeting" material, and also held the expletives used in the broadcasts were presumptively indecent. Justice Kennedy wrote that the Due Process command that "a person of ordinary intelligence [have] fair notice of what is prohibited" prevented the FCC from issuing indecency findings against broadcasts that aired before the policy change. "This would be true with respect to a regulatory change this abrupt on any subject," he wrote, "but it is surely the case when applied to the regulations in question … that touch upon sensitive areas of basic First Amendment freedoms."

The Court rejected the FCC's argument that Fox could not raise its vagueness challenge because the agency did not impose a sanction. Even though the FCC pledged it would not consider the prior indecent broadcasts in any context (such as on license renewal, or the amount of future fines, if any), the Court held that the mere fact that its rules allowed it to make the findings against Fox sufficed: "Just as in the First Amendment context, the due process protection against vague regulations does not leave regulated parties at the mercy of noblese oblige." The Court further held that the injury to a broadcaster's reputation with viewers and advertisers was "further reason for granting relief."

The Court also rejected claims that ABC had sufficient notice the nudity in NYPD Blue could be punishable, based on a 1960 FCC decision stating that "televising of nudes might well raise a serious question" of indecency. This, the Court held, was too "isolated and ambiguous" a statement to put broadcasters on notice, especially when subsequent decisions involving fleeting nudity resulted in FCC findings that the broadcasts were not actionable. The Court stopped short of deciding the First Amendment issue, however, and declined to offer any opinion on whether the FCC may enforce its policy against isolated words or images in the future under Golden Globes. It also put off for another day any decision on the continuing validity of Pacifica. And it concluded, "this opinion leaves the [FCC] free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements," and "courts free to review the current policy or any modified policy." In other words, the FCC could try to enforce its policy under Golden Globes going forward, or it could try to tweak the policy to make it clearer, but reviewing courts are free to rule on the constitutionality of its choice(s).

Ultimately, the Court vacated the 2nd Circuit opinions and remanded for further proceedings consistent with "the principles set forth in this opinion." Justice Ginsburg wrote a one-paragraph concurring opinion saying she would have reached the First Amendment issues and overruled Pacifica, which was "wrong when it was issued." In the wake of the Supreme Court's decision, the 2nd Circuit has already definitively vacated the FCC's fine in NYPD Blue and terminated that case.

The Fox decision also all but ensured the Court would decline to review the 3rd Circuit's re-affirmance that the FCC improperly fined CBS for the "wardrobe malfunction" at the end of the Super Bowl XXXVIII halftime show, which also was broadcast before the agency's change in policy on fleeting broadcasts of allegedly indecent material.  And, sure enough, on June 29, 2012, the Supreme Court denied certiorari in FCC v. CBS Corp.  The denial brings finality to the Super Bowl indecency action, and entitles CBS to a refund of the $550,000 fine it had paid in the case.

As in Fox, Justice Ginsburg wrote a one-paragraph concurring opinion in the denial of certiorari in FCC v. CBS, noting that the Foxdecision gives the FCC a chance to reconsider its indecency policy "in light of technological advances" and the FCC's "uncertain course since this Court's ruling in FCC v. Pacifica."  The Chief Justice also issued a concurring opinion in the FCC v. CBS denial, writing somewhat more expansively to question whether the appeals court was in fact correct that the FCC's fine departed from agency precedent.  Nonetheless, the Chief Justice ultimately concluded, any error in that regard has been rendered moot by the Fox decisions.  He added, however, that "[a]ny future 'wardrobe malfunctions' will not be protected on the ground relied on by the court below."