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.
1. Whether the court of appeals erred in invalidating a finding by the Federal Communications Commission that a broadcast including expletives was indecent within the meaning of statutory and regulatory prohibitions on indecent broadcasts, on the ground that the FCC’s context-based approach to determining indecency is unconstitutionally vague in its entirety?
2. Whether the court of appeals erred in invalidating a finding by the FCC that a broadcast including nudity was indecent within the meaning of statutory and regulatory prohibitions on indecent broadcasts, on the ground that the FCC’s context-based approach to determining indecency is unconstitutionally vague in its entirety?
Whether the Federal Communications Commission’s indecency standard is overly vague and runs afoul of the First and Fifth Amendments.
Federal law empowers the Federal Communications Commission (“FCC” or “the Commission”) to regulate the broadcasting of indecent or profane language. See 18 U.S.C. § 1464; Fox Television Stations, Inc. v. FCC, 613 F.3d 317, 319–20 (2d Cir. 2010). The FCC also has the authority to fine any broadcaster who violates the prohibition on indecency. See 47 U.S.C. § 503(b)(1)(D); Fox Television, 613 F.3d at 320. In 1975, following the broadcast of George Carlin’s “Filthy Words” monologue, a 12-minute segment laden with expletives, the FCC brought a civil forfeiture proceeding against the Pacifica Foundation, the organization that aired the monologue. See Fox Television, 613 F.3d at 320. The case ultimately reached the Supreme Court, which, in an avowedly narrow decision, found that the FCC could constitutionally restrict indecent speech. See id.; FCC v. Pacifica Found., 438 U.S. 726, 744 (1978).
Over the next few decades, the FCC brought few enforcement actions regulating indecent broadcast speech. See Fox Television, 613 F.3d at 321. Nonetheless, in 2001 the FCC issued a policy statement that aimed to clarify the industry standard for regulation of indecent speech. See id. at 321–22. In this statement, the FCC emphasized that the use of fleeting and isolated expletives was not sufficiently indecent to warrant an enforcement action. See id. at 322. However, in 2003, after the singer Bono used an expletive during a nationally televised award ceremony, the FCC appeared to backtrack from its industry guidance, declaring that a single, fleeting expletive could be actionably indecent. See id.
Subsequently, in a number of ensuing enforcement actions, the FCC seemed to confirm that even passing or momentary use of profanity was presumptively indecent. See Fox Television, 613 F.3d at 323. Two noteworthy incidents involved Fox Television’s broadcast of the Billboard Music Awards, which in 2002 and 2003 contained fleeting expletives from the singer Cher and the actress Nicole Richie. See id. The FCC also targeted a 2003 episode of the ABC series “NYPD Blue,” which featured a seven-second nude scene. See id.; Brief for Petitioners, Federal Communications Commission, et al. at 15–16.
Following these enforcement actions, Respondents, a collection of television and radio broadcasting networks, petitioned the United States Court of Appeals for the Second Circuit for a review of the FCC’s orders, arguing various administrative, statutory and constitutional points. See Fox Television, 613 F.3d at 324. The Second Circuit remanded the petition to allow the FCC to reconsider the networks’ challenges to its orders, but the FCC soon reaffirmed its conclusion that the language at both Billboard Music Awards was indecent. See id.
The Second Circuit vacated the FCC’s conclusion, finding that the Commission’s policy change was arbitrary and capricious in violation of the Administrative Procedure Act. See Fox Television, 613 F.3d at 324. In reaching this holding, the Second Circuit found that the FCC failed to justify the apparent abandonment of its previous policy permitting fleeting expletives. See id. On appeal, the Supreme Court reversed, determining that the FCC could regulate broadcast programming in order to provide viewers with profanity-free content. See id. at 325. The Court declined, however, to address the networks’ constitutional arguments, and remanded the case to the Second Circuit for consideration of the constitutional issues. See id. Finally, on remand, the Second Circuit found the FCC’s indecency policy to be impermissibly vague, and thus unconstitutional in its entirety. See id. at 330. The Supreme Court then granted the FCC’s petition for certiorari.
This case will determine whether the Federal Communications Commission’s indecency-enforcement policy violates the First and Fifth Amendments of the Constitution. The Supreme Court’s decision may impact the availability of live broadcasting and the extent of controversial or racy content on television. Petitioner FCC argues that its indecency-enforcement policy does not violate the First or Fifth Amendments, neither on its face nor as applied to the particular broadcasts at issue in this case. See Brief for Petitioners, Federal Communications Commission, et al. at 24. Respondent Fox Television, however, contends that the FCC’s policy cannot pass constitutional scrutiny, given that the FCC has no substantial interest in protecting children from offensive broadcasting content, and that the policy fails to use properly restrictive means to ban offensive content. See Brief for Respondents, Fox Television Stations, Inc., et al. at 27, 32.
In an amicus brief supporting the Respondents, the Cato Institute argues that the Court must overrule its 1978 decision in FCC v. Pacifica Foundation, which established the FCC’s current authority to regulate indecent material on television and radio. See Brief of Amici Curiae the Cato Institute, et al. in Support of Respondents at 5–6. The Pacifica decision, according to the Cato Institute, rested largely on the finding that broadcast media played a broad and pervasive role in the lives of many Americans; however, the Cato Institute points out that the media landscape has changed significantly since the 1970s, and that broadcast television no longer occupies the same dominant position in American society, thus undercutting Pacifica’s driving rationale. See id. The Cato Institute also notes that modern technology enables the delivery of news and entertainment via means that did not exist at the time of the Pacifica decision, when the broadcasting airwaves and paper publications were the sole means of delivering content to private homes. See id.
As an additional impetus for overruling Pacifica, the Cato Institute contends that parents today have sufficient tools to control the availability of broadcasting content in the home. See Brief of Cato Institute at 11. Specifically, the Cato Institute notes that the “V-Chip”—installed in the majority of televisions made since 2000—enables parents to block particular broadcasting programming, thus preventing children from having unhindered access to potentially offensive content. See id. at 13–14. Parents, the Cato Institute points out, may also use DVRs, DVDs, and other recording technologies to effectively create libraries of parent-approved content for their children. See id. at 15.
In opposition, the Parents Television Council (“PTC”) asserts that broadcasting still remains a uniquely popular and pervasive medium among Americans, thus bestowing a special public duty upon users of the public airwaves. See Brief of Amicus Curiae Parents Television Council in Support of Petitioners at 6–7. PTC notes, for instance, that in 2003, over 15 million American households relied exclusively on broadcast programming for their news and entertainment content. See id. at 7. Furthermore, PTC points out that, despite competition from alternative media sources such as the Internet and cable, few if any large broadcasters have deserted the public airwaves, but instead continue to produce significant content for public consumption. See id. at 8.
Additionally, FCC amici Focus on the Family and Family Research Council argue that the ban on broadcasting indecency must be upheld because children retain unique access to broadcasting content. See Brief of Amici Curiae Focus on the Family and Family Research Council in Support of Petitioners at 9–10. Focus on the Family notes that, as was true in Pacifica’s time, children today need only turn on the television to have access to potentially offensive or indecent broadcasting content. See id. at 27. PTC, moreover, contends that screening technology such as the V-Chip cannot justify overturning Pacifica, given that these technologies are often restricted to television broadcasts, and that the technology solution places the burden with viewers rather than with broadcasters to ensure the propriety of the content. See Brief of Parents Television Council at 13.
In this case, the Supreme Court will decide whether the Federal Communication Commission’s policy on the use of unrepeated expletives during television broadcasts is unconstitutionally vague, violating the First and Fifth Amendments of the Constitution.
Contrasting Characterizations of the FCC’s Indecency Policy
Respondent American Broadcasting Company, Inc. (“ABC”) argues that the FCC’s policy on expletive use is unconstitutionally vague because the policy does not adequately notify broadcasters about when they might be subject to reprimand for broadcasting expletives on television. See Brief for Respondents, ABC Inc., et al. at 12. ABC acknowledges that the Supreme Court’s holding in FCC v. Pacifica Foundation gave the FCC some latitude to consider context in regulating potentially indecent material; however, ABC asserts that Pacifica’s context-based approach did not grant the Commission unfettered authority to regulate all manner of constitutionally protected speech. See id. at 34–35. According to ABC, because the FCC’s context approach does not consider objective criteria, its once-clear indecency policy is now arbitrary and opaque. See id. at 27. Moreover, in ABC’s view, the FCC has misconstrued the Pacifica Court’s explanation of the relation between “context” and expletive use: while the Court instructed the FCC to make indecency determinations according to the time, nature, and audience of particular broadcasts, the FCC in fact gives significant weight to whether the artistic or social merit of a program justifies its profane nature. See id. at 27–28.
In a similar vein, Respondent Fox Television (“Fox”) also decries the arbitrary and variable nature of the FCC’s indecency approach. See Brief for Respondents, Fox Television Stations, Inc., et al. at 39. Fox notes, for instance, that the FCC defines the “offensiveness” of broadcasted material in accordance with the FCC’s own experience and knowledge; as a result, Fox asserts that many indecency determinations are made by fiat, and that the malleable indecency framework enables the FCC to justify almost any outcome. See id. at 43. Deciding whether a certain program features “offensive” or “profane” content, Fox contends, is an inherently subjective determination, and it is no easier to predict the FCC’s reaction than the average viewer’s response. See id. at 49. Furthermore, according to Fox, the FCC’s vague indecency approach is already discouraging certain forms of speech on television: for example, Fox notes that broadcasters have declined to air critically acclaimed documentaries and unscripted reports for fear of violating the FCC’s indecency policy and being subjected to substantial fines. See id. at 49–50.
The FCC, however, argues in response that the Second Circuit’s ruling—which labeled the FCC’s entire indecency policy as unconstitutionally vague—was too broad, as the court should have evaluated the policy as it applied to the particular Fox and ABC broadcasts before it. See Brief for Petitioners, Federal Communications Commission, et al. at 24. Furthermore, the FCC contends that its policy does comport with Fifth Amendment due process, both facially and as applied to the facts in this case. See id. at 26, 33. While the FCC concedes that it could replace the context-based approach with a comprehensive list of banned words and images, the FCC cautions that such a rigid and categorical approach may undermine efforts to protect children from indecent material, permitting the broadcast of highly offensive content that simply omits the prohibited words and images. See id. at 35. The FCC also argues that, given the sophisticated nature of broadcast companies—which have long maintained robust internal procedures to ensure compliance with community standards—the context-based approach to indecency does not deprive broadcasters of notice as to what content will be considered indecent. See id. at 34. Finally, according to the FCC, any lingering concerns about inadequate notice are mitigated by the FCC’s “safe harbor” period, which, between 10 p.m. and 6 a.m., allows broadcasters to air any material without fear of reprimand. See id. at 8, 36.
Indecent Language and the First Amendment
Both Fox and ABC argue that the FCC’s indecency policy violates the First Amendment. See Brief for Respondent, Fox Television at 15; Brief for Respondent, ABC, Inc. at 37. As a starting point, Fox points out that content-based restrictions on speech are considered presumptively unconstitutional, even when the restricted material enters private homes. See Brief for Respondent, Fox Television at 15. Furthermore, according to Fox, the justifications underlying the FCC’s modern indecency policy—originally announced in the 1978 Pacifica decision—are now outdated, and cannot square with current realities in the media market. See id. at 17. For one, departing from a key Pacifica rationale, Fox notes that broadcasting no longer possesses the uniquely ubiquitous presence that it held in the 1970s. See id. at 18. Today, Fox observes, broadcasting competes with an assortment of alternative media—including cable, satellite, the Internet, and video games—for the attention of American viewers. See id. According to Fox, nearly ninety percent of American households today use satellite or cable services, leaving only a small percentage of households that rely exclusively on the public airwaves for television programming. See id. In addition, in another significant departure from Pacifica, Fox asserts that children today no longer enjoy unobstructed access to media content. See id. at 21. With the advent of blocking technologies such as the “V-Chip,” parents can exercise extensive control over the programming that their children are exposed to. See id. at 22. Historically, Fox points out, the Court has invalidated indecency prohibitions when such blocking technologies were available. See id.
Even if Pacifica is not overturned, both Fox and ABC contend that the FCC’s indecency policy fails traditional constitutional scrutiny. See Brief for Respondent, Fox Television at 26; Brief for Respondent, ABC, Inc. at 38, 48. While the Pacifica Court worried that sustained profanity—used primarily for shock value—might harm the psychological well-being of young audience members, Fox argues the same concern does not apply to mere fleeting expletives or the occasional, momentary vulgarity. See Brief for Respondent, Fox Television at 27–28. Straying from Pacifica’s narrow holding, Fox asserts that the FCC has established itself as a “super-editor” of broadcast programming, policing the industry according to its own subjective and unpredictable interpretation of “indecency.” See id. at 30–31. Furthermore, in Fox’s view, the FCC’s indecency policy is not properly tailored to achieve the goal of shielding children from offensive content. See id. at 32. On the one hand, the policy is under-inclusive because it does not insulate children against the myriad types of offensive content found on alternative media sources, including the Internet, video games, and books and magazines. See id. at 33. On the other hand, the policy is also over-inclusive because a majority of households do not contain minors, and many parents do not oppose their children’s exposure to fleeting profanities. See id. at 34.
The FCC, however, avers that its indecency policy does comport with the First Amendment. See Brief for Petitioner, Federal Communications Commission at 36. The FCC notes that the Pacifica Court did not characterize its decision as touching the outer limits of acceptable indecency regulation; hence, the FCC argues that its own decision to expand the Pacifica approach does not conflict with the First Amendment analysis used in the case. See id. at 37. Furthermore, responding to the charge that technological and cultural developments since the 1970s have undermined Pacifica’s holding, the FCC asserts that the broadcast medium still occupies a leading position among all media sources. See id. at 44–45. The FCC notes, for instance, that 485 of the 495 most-watched television programs in 2004 and 2005 appeared on broadcast television. See id. at 45.
The FCC also argues that broadcast programming remains uniquely accessible to children. See Brief for Petitioner, Federal Communications Commission at 46. The FCC notes that, unlike cable or the Internet—where viewers have to affirmatively seek out offensive material—with broadcasting, parents can expose children to potentially profane content through the simple act of purchasing a television set. See id. at 46–47. Finally, the FCC contends that the broadcast medium requires special First Amendment considerations because broadcasters serve only by dint of a government license to broadcast. See id. at 42–43. As broadcast licensees have received special government permission to use a valuable public resource—namely, the public airwaves—the FCC argues that broadcasters have impliedly agreed to be subject to certain heightened regulation. See id.
In Pacifica, the Supreme Court endorsed the FCC’s regulation of indecent material in the broadcast medium. Since that time, the FCC has adopted a context-based approach to the regulation of indecent material. Fox and ABC now contend that the FCC’s approach has gone too far, arguing that the FCC’s current indecency policy is impermissibly vague and runs afoul of the First and Fifth Amendments.
Edited by: Edan Shertzer
N.Y. Times: Justices Agree to Consider F.C.C. Rules on Indecency (June 27, 2011)
Thomson Reuters: Nudity and Dirty Words at the Supreme Court! (June 27, 2011)
Christian Post: Supreme Court Case, FCC v. Fox TV, Divides Social Conservatives, Libertarians (Nov. 16, 2011)