Megan Handerhan

May 4 2012

COM 3305

Dr. Paul Gates

Federal Communications Commission v. Fox Television Stations (2012)

On January 10, 2012, the Supreme Court revisited the Federal Communications

Commission’s regulations to discuss whether they violate the First or Fifth Amendments to the

United States Constitution. The court case, Federal Communications Commission v. Fox

Television Stations, concerns big names in the broadcasting industry such as ABC, Inc., Fox

Broadcasting Company, and their audiences. The Justices are concerned with the issue of

whether the FCC’s regulations are too overbroad and vague ("Federal communications

commission," 2012). The case’s decision is to be decided by the end of this term, however there

is a lot to look at concerning the history of this case as well as the overview of January’s oral

argument.

This Supreme Court case was seen at the United States Court of Appeals level for the

Second Circuit but the issues concerning the FCC’s regulations did not start there. In the 1960s,

Congress gave the authorization for the FCC to construct civil law for violations of Section

1464: “Whoever utters any obscene, indecent, or profane language by means of radio

communication shall be fined under this title or imprisoned not more than two years, or both.” It

was not until a 1975 case, Citizen’s Complaint Against Pacifica Foundation Station WBAI (FM),

N.Y. N.Y., 56 F.C.C. 2d 94, was the law put into action. This court case, commonly known as

George Carlin’s “Filthy Words” monologue, was a 12-minute list of expletives that was

broadcasted at 2:00PM. At the New York District level, Pacifica violated Section 1464.

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However, when the Pacifica Foundation petitioned for review to the DC Circuit in 1977, the

court found FCC’s rule to be both vague and overbroad and the definition of indecent speech

would prohibit, “the uncensored broadcast of many of the great works of literature including

Shakespearian plays and contemporary plays which have won critical acclaim, the works of

renowned classical and contemporary poets and writers, and passages from the Bible.” The DC

Circuit court claimed that the current rules regarding indecent speech would prevent works of art

to be broadcasted and were found to be unconstitutionally vague. However, the DC Circuit

decision was reversed in the 1978 Supreme Court Case, FCC v. Pacifica Foundation. Instead,

the Supreme Court focused on the “specific factual context” of the monologue and the FCC was

granted the power to continue to restrict indecent speech. The court decided that audience, time

of day, medium, and method of transmission were important factors in determining whether the

government has the power to use sanctions; “[W]hen the Commission finds that a pig has entered

the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene”

(Fox Television Stations, Inc. v FCC, 2010). This was the first instance where FCC’s rules were

seen as too ambiguous and were fine-tuned (Oyez, 2011).

Over the following decades, the FCC rarely enforced the rules regarding fleeting

explicates and only fined for the extreme examples of indecency. However, it was not until 2004

when the FCC began to fine for fleeting explicates that were not seen as a problem before. For

example, in 2003 U2’s Bono claimed his Golden Globe award to be, “really, really, fucking

brilliant” on live television and it was not until the new policy under the 2004 administration that

the Commission backtracked on their previous rule claiming that a single expletive can be

indecent. The networks that aired the Billboard Music Awards in 2002 and 2003 were also fined

for airing “F-bombs” and “S-bombs” that were uttered by Cher and Nicole Ritchie (Lithwick,

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2012). This incident of the FCC falling back on their word was just one case that contributes to

the most recent Supreme Court case, FCC v Fox 2012.

The most relevant cases concerning FCC v Fox 2012 were seen in court ten years ago. In

2002 and 2003, the Federal Communications Commission was displeased with two major

broadcasting companies, Fox Television and ABC, Inc. The FCC reprimanded Fox Television in

allowing profanities to be broadcasted during the Billboard Music Awards in 2002 and 2003.

Again in 2003, the FCC censored ABC, Inc. for broadcasting a seven second nude scene during

NYPD Blue. Fox appealed to the Second Circuit and the court ruled that the decision was

“arbitrary and capricious”. The Supreme Court demanded another hearing from the Second

Circuit, however the court stood by their previous ruling this time claiming FCC’s rules were

filled with “impermissible vagueness” (Carrizales & Schultz, 2012). Ten years later, in January

2012, the two cases were heard once again by the Supreme Court in the most recent case, FCC v

Fox 2012.

The oral argument of the 2012 Supreme Court case considered previous cases that were

riddled with inconsistency and vagueness concerning the application of the Federal

Communications Commission’s regulations. The reason behind the Second Circuit’s decision

was unconstitutional vagueness of the FCC’s regulations. This time around, the Supreme Court

analyzed the issue of “whether the FCC indecency policy violates the free speech and due

process provisions of the Constitution” (Frankel, 2011). The Court has already seen one of the

cases in 2009, known as the “fleeting explicative” case. The 2009 ruling continued to grant

power to the FCC to regulate indecency. However, the case is back in the Supreme Court to

answer the big question of whether or not the FCC’s indecency policy is unconstitutional.

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During the January oral argument, the issue of vagueness and arbitrariness was under

scrutiny. For example, the Justices brought up the fact that swearing in Saving Private Ryan is

acceptable but swearing in a music documentary produced by Martin Scorsese is not acceptable.

Also, nudity in Schindler’s List is okay, but nudity is NYPD Blue is not. Justice Elena Kagan

pointed out, “it’s like nobody can use dirty words or nudity except for Steven Spielberg”. Justice

Ruth Bader Ginsburg asked the court if restrictions should even exist saying, “expletives are in

common parlance”(Liptak, 2012). General Donald Verrilli Jr. claimed restrictions should still be

in place because broadcasting is a medium of mass communication and should be regulated. The

court then argued if the FCC has the right to regulate during hours that children may be

watching. Ideas of using a “V-Chip” to regulate the exposure of indecent material to children

were quickly shot down by Justice Anthony Kennedy. Justice Kennedy claimed that using the

device as the only way to regulate broadcasting indecency will only provoke children to learn

how the chip works. This will only give way to the fact that children will learn how to use it and

turn it off. However, the broadcasting industry’s representation still urges the Supreme Court to

throw out FCC’s regulations.

The lawyers for the broadcasting networks urged the Supreme Court to throw out the

indecency rules and fines entirely. They claim that regulating airwaves is outdated and that most

Americans get their entertainment and news from cable television or the Internet. On the other

hand, General Donald Verrilli Jr. claims that if the court were to get rid of FCC’s indecency

policy during the prime time hours and overturn the thirty three year old decision, “the risk of a

race to the bottom is real” ("Supreme court weighs," 2012). However, Carter Phillips,

representation for the networks, claims that little would change. Phillips claimed the audience

and the advertisers will control what is being broadcasted and the networks will be sensitive to

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their ratings. Advertisers are even asking if the FCC is needed given that indecency is already

controlled by audience ratings and advertising spending (Bachman, 2012). The lawyers aso

brought light to the fact that cable television and the Internet have First Amendment rights. With

this pointed out, the lawyers claim that broadcasters deserve the same rights (Savage, 2012).

Given that a decision has not been made regarding the 2012 FCC v Fox Supreme Court

case, there is much to be said about the decision of the case in the United States Court of Appeals

for the Second Circuit. The reasoning behind the court granting petition for review was, “we do

not suggest that the FCC could not create a constitutional policy. We hold only that the FCC’s

current policy fails constitutional scrutiny” (Fox Television Stations, Inc. v FCC, 2010).

The networks during the Second Circuit argument claim that the FCC’s rules are,

“antiquated and vague, chill free speech, and ought to be thrown out” and broadcasters are forced

to steer clear of any indecency in order to avoid detrimental fines (Bachman, 2012). The

representation for the networks also brought up that the ruling in the Pacifica case was over

thirty years ago and much has changed regarding the medium of communication and the rights

that broadcasters should have. When the decision was made in the Pacifica case, cable television

was new, the Internet was only being used by a few people in the Department of Defense, and

broadcast television was a very unique and pervasive medium of communication. The fact that

every television manufactured since 2000 contains a V-Chip, which lets parents block shows on

certain networks, only adds to the fact that broadcast television should receive more rights.

Given these arguments, the networks urged the court to overrule the 1978 Pacifica ruling and

“subject speech restrictions in the broadcast context to strict scrutiny” (Fox Television Stations,

Inc. v FCC, 2010).

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According to the Second Circuit decision, there is ample evidence that the current policy

for indecent speech chills free speech and violates the First Amendment. The court argued that

since there are massive fines for violating the FCC regulations, the broadcasters have no choice

but to entirely avoid any speech that can be seen as indecent. The decision brought up the 2003

Billboard Music Awards when Fox used their audio delay system to censor Nicole Richie’s

explicates. However, even with heavy precautions, three explicates were broadcasted and Fox

was fined by the FCC. The court said that the only way for Fox to completely avoid being fined

by the FCC is to completely avoid airing live broadcasts (Frankel, 2011).

Even though the United States Court of Appeals for the Second Circuit made their

decision regarding FCC’s policy, it will be interesting to see what the Supreme Court decides.

According to the Los Angeles Times (2012), it seems unlikely that the Court will throw out the

indecency policy entirely: “The justices said they wanted to preserve broadcast TV as a ‘safe

haven’ for children and families.” Chief Justice John Roberts was even quoted saying: “All we

are asking for, what the government is asking for, is a few channels where you … are not going

to hear the 'S-word,' the 'F-word.' [Children] are not going to see nudity.” However unwavering

the Court may be to adjust the indecency policy, the Networks are still pulling for increased

freedom from the “federal indecency police”.

With the long history of the Federal Communications Commission being flakey with

their regulations, it seems to me that the Supreme Court should not take this case lightly. Before

looking into this case, I had no idea that there was hard evidence of the FCC being vague with

their application of their indecency regulations. However, the FCC is not innocent regarding the

application of their indecency policy. After looking over the oral argument for the Supreme

Court case and the decision for the Circuit Court case, it seems to me that the Justices will be

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reluctant in getting rid of the policy entirely. However, I believe they will ask for a revision of

the policy from the Commission in order to be clearer on what they can fine for. All in all, it will

be interesting to see what the Supreme Court decides at the end of this term.

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Reference List

Bachman, K. (2102). The supremes get indecent proposals. Adweek, 53(1), 16.

Carrizales, A., & Schultz, T. (2012, Jan 10). Cornell university law. Retrieved from

http://www.law.cornell.edu/supct/cert/10-1293

Fcc v. pacficia foundation. (2011). The Oyez Project at IIT Chicago-Kent College of Law.

Retrieved from http://www.oyez.org/cases/1970-1979/1977/1977_77_528

Federal communications commission v. fox television stations, inc. (2012). Retrieved from

http://www.scotusblog.com/case-files/cases/federal-communications-commission-v-fox-

television-stations-inc/

Fox Television Stations, Inc. v. FCC, 613 F.3d 317 (2d Cir. 2010)

Frankel, A. (2011, June 27). [Web log message]. Retrieved from

http://newsandinsight.thomsonreuters.com/Legal/News/2011/06__June/Nudity_and_dirty

_words_at_the_Supreme_Court!/

Liptak, A. (2012, January 11). TV decency is a puzzler for justices. The New York Times, p. B1.

Lithwick, D. (2012, January 10). Slate. Retrieved from

http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2012/01/supr

eme_court_and_fcc_s_fleeting_expletives_policy_what_exactly_counts_as_indecent_on

_tv_.html

Savage, D. G. (2012, January 10). Indecency on tv: Supreme Court reluctant to ease profanity

rules. The Los Angeles Times. Retrieved from

http://latimesblogs.latimes.com/nationnow/2012/01/indecency-tv-supreme-court-fcc.html

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Supreme court weighs policing curse words on tv. (2012, January 10). Retrieved from

http://www.cbsnews.com/8301-201_162-57355848/supreme-court-weighs-policing-

curse-words-on-tv/