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Fox Television Stations, Inc. v. FCC

United States Court of Appeals for the Second Circuit · 2010 · Constitutional Law

Constitutional LawFirst AmendmentVaguenessBroadcast IndecencyFirst Amendmentvoid for vaguenessbroadcast indecencyFCC

Facts

The FCC historically exercised restraint in enforcing indecency rules and had treated fleeting, isolated expletives as not actionably indecent. In 2004, the FCC changed course in its Golden Globes Order and declared that even a single nonliteral expletive could be actionably indecent, later treating uses of words such as "fuck" and "shit" as presumptively indecent while recognizing limited exceptions such as bona fide news interviews or material integral to artistic or educational works. Applying that policy, the FCC found broadcasts including the 2002 and 2003 Billboard Music Awards indecent based on unscripted fleeting expletives by Cher and Nicole Ritchie. The major broadcast networks challenged the FCC's policy as unconstitutional because its standards were unclear and chilled protected speech.

Issue

Whether the FCC's broadcast indecency policy, as articulated in its Industry Guidance and subsequent orders and applied to fleeting expletives, violates the First Amendment because it is unconstitutionally vague. More specifically, the question was whether the policy gives broadcasters adequate notice of what speech is prohibited and sufficiently constrains FCC discretion.

Rule

A speech regulation is void for vagueness if it does not give a person of ordinary intelligence a reasonable opportunity to know what is prohibited. In the First Amendment context, the government bears a special burden to provide clear standards because vague content-based restrictions chill protected speech and create an impermissible risk of ad hoc, subjective, and discriminatory enforcement.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

The Federal Broadcast Standards Board adopts a rule banning televised material that, in context, is "patently offensive" as to sexual or excretory subjects. It lists three factors—explicitness, repetition, and shock value—and then penalizes a Denver station for a single unscripted expletive during a live charity concert while declining to penalize a Seattle station for a similar utterance in a historical documentary because the agency views that program as culturally valuable.

If the Denver station challenges the rule on First Amendment grounds, which argument is strongest?

Explanation. In the First Amendment context, the government bears a special burden to give a person of ordinary intelligence a reasonable opportunity to know what speech is prohibited. A standard built around broad factors like explicitness, repetition, and shock value, combined with uneven exceptions based on perceived value, fails to provide adequate notice and creates a serious risk of subjective enforcement. The majority held that context may matter, but context alone cannot substitute for discernible standards. (Derived from Fox Television Stations, Inc. v. FCC (n.d.).)