Oral argument: Jan. 10, 2012
Appealed from: United States Court of Appeals for the Second Circuit (July 13, 2010)
In 2002 and 2003, the Federal Communications Commission reprimanded Fox Television for fleeting profanities that appeared during Fox’s broadcast of the Billboard Music Awards. In 2003, the FCC also censured ABC, Inc. for a scripted television scene featuring brief nudity. Fox appealed, and the Second Circuit vacated the FCC’s decision, ruling that the FCC’s indecency policy was arbitrary and capricious. After the Supreme Court reversed the holding and remanded the case for reconsideration, the Second Circuit again rejected the FCC’s policy, this time for impermissible vagueness. The Second Circuit also opined that the FCC’s policy raised significant First Amendment concerns. Following another round of appeals, the case now returns to the Supreme Court, which must determine the scope of the FCC’s authority to regulate passing instances of nudity and expletive use. This decision may affect the content that broadcasters will be able to air during daytime and primetime programming.