Court Revisits Broadcast Obscenity

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The U.S. Supreme Court has issued a decision in FCC v. Fox that overturns penalties in the case, due to the Federal Communications Administration not providing adequate notice to broadcasters that certain use of expletives and partial nudity could be actionable under then-current FCC indecency regulations.

The case was consolidated with writ of certiorari to the U.S. Second Circuit in Federal Communications Commission v. ABC.

The court held that the FCC regulations were vague:

The fundamental principle that laws regulating persons or entities must give fair notice of what conduct is required or proscribed, see, e.g., Connally v. General Construction Co., 269 U. S. 385, 391, is essential to the protections provided by the Fifth Amendment’s Due Process Clause, see United States v. Williams, 553 U. S. 285, 304, which requires the invalidation of impermissibly vague laws. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”

In accordance with Title 18 U. S. C. §1464, the federal government bans the broadcast of “any obscene, indecent, or profane language.” The Federal Communications Commission began enforcing §1464 in the 1970’s. In FCC v. Pacifica Foundation, 438 U. S. 726, the U.S. Supreme Court left open the question of whether “an occasional expletive” would be actionable under the statute.

Over time, the FCC migrated away from Pacifica,which the Court of Appeals reversed, finding the Commission’s decision to modify its indecency enforcement regime to regulate fleeting expletives arbitrary and capricious.

The Supreme Court reversed and remanded the case to the Second Circuit to address First Amendment challenges. (FCC v. Fox Television Stations, Inc., 556 U. S. 502.) On remand, the Second Circuit found the policy unconstitutionally vague and invalidated it in its entirety. In the ABC case, the FCC found the display actionably indecent, and imposed a $27,500 forfeiture on each of the 45 ABC-affiliated stations that aired the episode. The Second Circuit vacated the order in light of its Fox decision.

The Court held that the administrative regulations were vague, and therefore in violation of the Fifth Amendment’s Due Process clause. Consequently, the opinion stated that the court was not considering the case in light of First Amendment issues regarding speech, which has often been the basis for defenses of obscenity in the past.

The opinion was written by Justice Anthony Kennedy. Chief Justice Roberts, and Justices Scalia, Thomas, Breyer, Alito and Kagen joined. Justice Ginsburg filed a separate opinion concurring in the decision, while Justice Sonia Sotomayor recused herself from consideration in the cases.

This article was written by Joanne Lee on behalf of the Philip C. Tencer Law Firm. When facing business disputes, be sure to consult a certified litigation lawyer.