Federal Communications Commission v. Fox Television Stations, Inc.
2012 U.S. LEXIS 4661, 567 U.S. 239, 183 L. Ed. 2d 234 (2012)
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Rule of Law:
A federal agency violates the Due Process Clause of the Fifth Amendment when it applies a new, stricter interpretation of a regulation to conduct that occurred before the new interpretation was announced, as this fails to provide regulated parties with fair notice of what is prohibited.
Facts:
- Prior to 2004, the Federal Communications Commission (FCC) had a policy of not treating fleeting or isolated expletives as actionably indecent.
- During the 2002 Billboard Music Awards, broadcast by Fox Television Stations, the singer Cher used the 'F-word' in an unscripted acceptance speech.
- During the 2003 Billboard Music Awards, also broadcast by Fox, presenter Nicole Richie used both the 'S-word' and a variation of the 'F-word'.
- In a February 2003 episode of the show 'NYPD Blue', broadcast by ABC Television Network, a scene depicted an adult woman's nude buttocks for approximately seven seconds.
- In 2004, after these broadcasts occurred, the FCC issued its 'Golden Globes Order', which reversed its prior policy and established that a single, fleeting use of an expletive could be actionably indecent.
- The FCC subsequently applied this new, post-broadcast policy to find the earlier broadcasts by Fox and ABC to be actionably indecent.
Procedural Posture:
- The FCC issued orders finding that broadcasts by Fox and ABC were actionably indecent.
- Fox and ABC, the broadcasters, petitioned the U.S. Court of Appeals for the Second Circuit for review of the FCC's orders.
- The Second Circuit first held that the FCC's change in policy was 'arbitrary and capricious' under the Administrative Procedure Act.
- The U.S. Supreme Court, in an earlier decision (Fox I), reversed the Second Circuit and held the policy change was not arbitrary and capricious, remanding the case for the Second Circuit to decide the constitutional issues.
- On remand, the Second Circuit held that the FCC's indecency policy was unconstitutionally vague.
- The U.S. Supreme Court granted certiorari to review the Second Circuit's constitutional holding.
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Issue:
Does the Federal Communications Commission's application of its new, stricter indecency policy to sanction broadcasts that occurred before the policy change violate the Due Process Clause of the Fifth Amendment for failing to provide fair notice of what conduct was prohibited?
Opinions:
Majority - Justice Kennedy
Yes, the FCC's application of its new indecency policy to the prior broadcasts violates the Due Process Clause. A fundamental principle of due process is that regulated parties must have fair notice of what conduct is forbidden. Here, the FCC's policy in place at the time of the broadcasts by Fox and ABC gave them no notice that fleeting expletives or a brief, seven-second shot of nudity could be found actionably indecent; in fact, prior policy suggested the opposite. The FCC changed its policy only after the broadcasts had already occurred and then improperly applied that new standard retroactively. This lack of fair notice renders the Commission's actions unconstitutional as applied to these specific broadcasts. The Court explicitly declined to address the broader First Amendment question of whether the FCC's indecency regime, or the precedent established in FCC v. Pacifica Foundation, remains constitutional in the modern media era.
Concurring - Justice Ginsburg
Yes, the Commission's orders must be set aside, but the Court should have gone further. The underlying precedent of FCC v. Pacifica Foundation, which permits the government to regulate broadcast indecency more strictly than other forms of speech, was wrongly decided and should be overruled. Technological advances and changes in the media landscape since 1978 have rendered Pacifica's rationale obsolete, and the Commission's inconsistent rulings in this case demonstrate why that precedent is untenable.
Analysis:
This decision is significant for its narrowness, as the Court resolved the case on due process 'fair notice' grounds rather than addressing the major First Amendment questions at stake. By doing so, the Court avoided reconsidering its foundational 1978 precedent in FCC v. Pacifica, which allows for greater regulation of broadcast media. The ruling provides a victory to the broadcasters for these specific instances but leaves the FCC's current, stricter indecency policy intact for prospective application. This leaves the broader constitutional validity of the FCC's indecency regime as an open question, setting the stage for future litigation directly challenging the policy on First Amendment grounds.
