''Federal Communications Commission v. Fox Television Stations, Inc.'', 567 U.S. 239 (2012), was a decision by the

Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all Federal tribunals in the United States, U.S. federal court cases, and over Stat ...

regarding whether the U.S.

Federal Communications Commission The Federal Communications Commission (FCC) is an independent agency of the United States government that regulates communications by radio, television, wire, internet, wi-fi, satellite, and cable across the United States. The FCC maintains j ...

's scheme for regulating speech is

unconstitutionally vague In American constitutional law, a statute may be void for vagueness and unenforceable if it is too vague for the average citizen to understand what acts or duties are required or restricted. This is because constitutionally permissible activity ma ...

. The Supreme Court excused the broadcasters from paying fines levied for what the FCC had determined indecency, in a majority opinion delivered by Justice

Anthony Kennedy Anthony McLeod Kennedy (born July 23, 1936) is an American attorney and jurist who served as an associate justice of the Supreme Court of the United States from 1988 until his retirement in 2018. He was nominated to the court in 1987 by Pres ...

. The Supreme Court had previously issued an opinion in the case in 2009 addressing the nature of the fine itself, without addressing the restriction on indecent speech.

Initial case

The case entered the Supreme Court's docket in October 2007 and specifically concerns obscene language broadcast on the

Fox Foxes are small-to-medium-sized omnivorous mammals belonging to several genera of the family Canidae. They have a flattened skull; upright, triangular ears; a pointed, slightly upturned snout; and a long, bushy tail ("brush"). Twelve species ...

television network from two ''

Billboard A billboard (also called a hoarding in the UK and many other parts of the world) is a large outdoor advertising structure (a billing board), typically found in high-traffic areas such as alongside busy roads. Billboards present large advertis ...

'' Music Awards shows occurring in

2002 The effects of the September 11 attacks of the previous year had a significant impact on the affairs of 2002. The war on terror was a major political focus. Without settled international law, several nations engaged in anti-terror operation ...

and

2003 2003 was designated by the United Nations as the International Year of Fresh water, Freshwater. In 2003, a Multi-National Force – Iraq, United States-led coalition 2003 invasion of Iraq, invaded Iraq, starting the Iraq War. Demographic ...

. On the December 9, 2002 ceremony, while accepting an artist achievement award for her career,

Cher Cher ( ; born Cheryl Sarkisian, May 20, 1946) is an American singer, actress and television personality. Dubbed the "Honorific nicknames in popular music, Goddess of Pop", she is known for her Androgyny, androgynous contralto voice, Music an ...

said "

fuck ''Fuck'' () is profanity in the English language that often refers to the act of sexual intercourse, but is also commonly used as an intensifier or to convey disdain. While its origin is obscure, it is usually considered to be first attested ...

'em" regarding people who she believed criticized her; on the ceremony occurring on December 10, 2003, presenter

Nicole Richie Nicole Camille Richie (; born September 21, 1981) is an American media personality, fashion designer, and actress. She came to prominence after appearing on the reality television series ''The Simple Life'' (2003–2007), in which she starred al ...

stated regarding her television show: "Why do they even call it ''

The Simple Life ''The Simple Life'' is an American reality television series starring Paris Hilton and Nicole Richie. It depicts the two wealthy socialites, as they struggle to do menial, low-paying jobs such as cleaning rooms, farm work, serving meals in fa ...

''? Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." In 2004, after those incidents and another incident in January 2003 involving

NBC The National Broadcasting Company (NBC) is an American commercial broadcast television and radio network serving as the flagship property of the NBC Entertainment division of NBCUniversal, a subsidiary of Comcast. It is one of NBCUniversal's ...

and the

Golden Globes The Golden Globe Awards are awards presented for excellence in both international film and television. It is an annual award ceremony held since 1944 to honor artists and professionals and their work. The ceremony is normally held every Januar ...

, where U2 lead singer

Bono Paul David Hewson (born 10 May 1960), known by the nickname Bono ( ), is an Irish singer-songwriter and activist. He is a founding member, the lead vocalist, and primary lyricist of the rock band U2. Bono is known for his impassioned voca ...

called the band's win for

Best Original Song The following is a list of categories of awards commonly awarded through organizations that bestow film awards, including those presented by various films, festivals, and people's awards. Best Actor/Best Actress *See Best Actor#Film awards, Best ...

"really, really, fucking brilliant" in his acceptance speech,

(FCC) changed its rules on expletives to prohibit "single uses of vulgar words" under any circumstances, including previous instances where it gave leeway for "fleeting" expletives that networks unknowingly allowed to enter the airwaves. Fox was subsequently fined through its

owned and operated In the broadcasting industry, an owned-and-operated station (frequently abbreviated as an O&O) usually refers to a television or radio station owned by the network with which it is associated. This distinguishes such a station from an affiliate ...

television stations group, and challenged its fine in the courts. The

United States Court of Appeals for the Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory covers the states of Connecticut, New York (state), New York, and Vermont, and it has ap ...

ruled in the initial case () that the FCC cannot punish broadcast stations for such incidents. The FCC appealed to the Supreme Court, and in the 2009 case, the Supreme Court reversed the Second Circuit, finding that the new policy was not arbitrary. However, the issue of constitutionality was remanded to the Second Circuit, which had not considered the issue initially.

Background

Upon remand to hear the initially deferred issue of constitutionality, the Second Circuit Court of Appeals re-heard the case in January 2010. On July 13, 2010, in a unanimous decision written by Judge Rosemary S. Pooler, the Second Circuit vacated the FCC order and policy on First Amendment grounds, finding that "by prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster's peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment." The Second Circuit added The FCC requested that the full Second Circuit hear the case

en banc In law, an ''en banc'' (; alternatively ''in banc'', ''in banco'' or ''in bank''; ) session is when all the judges of a court sit to hear a case, not just one judge or a smaller panel of judges. For courts like the United States Courts of Appeal ...

, but was denied. The Supreme Court heard oral arguments in this round on January 10, 2012.

Ruling

In an 8–0 decision (Justice

Sonia Sotomayor Sonia Maria Sotomayor (, ; born June 25, 1954) is an American lawyer and jurist who serves as an associate justice of the Supreme Court of the United States. She was nominated by President Barack Obama on May 26, 2009, and has served since ...

recused herself because she had previously sat on the Second Circuit) written by Justice

, the Supreme Court ruled that because the regulations at the time did not cover "fleeting expletives" (the regulations have since been amended to that end), the fines issued were invalidated as "unconstitutionally vague" under the

Due Process Clause A Due Process Clause is found in both the Fifth and Fourteenth Amendments to the United States Constitution, which prohibit the deprivation of "life, liberty, or property" by the federal and state governments, respectively, without due proces ...

. Because the case was resolved on that basis, the Court declined to address the First Amendment implications of the FCC's indecency regulations or to reconsider ''

FCC v. Pacifica ''Federal Communications Commission v. Pacifica Foundation'', 438 U.S. 726 (1978), was a landmark decision of the United States Supreme Court that upheld the ability of the Federal Communications Commission (FCC) to regulate indecent content sen ...

'', 438 U.S. 726 (1978).

Ginsburg concurrence

Ginsburg authored a one-paragraph concurrence in which she agreed with the decision, but argued that the Supreme Court should have revisited ''Pacifica'', as she felt it was "wrong when it was issued".

References

External links