Federal Communications Commission v. Fox Television Stations, Inc.

Summary

The Supreme Court held that the FCC's broadcast-indecency standards were unconstitutionally vague as applied to Fox's broadcasts of isolated expletives at the 2002 and 2003 Billboard Music Awards and to ABC's NYPD Blue episode showing roughly seven seconds of nudity, because the Commission failed to give either broadcaster fair notice, before the broadcasts, that fleeting expletives or momentary nudity could be found actionably indecent. Applying the void-for-vagueness doctrine under the Due Process Clause of the Fifth Amendment, the Court reasoned that the 2001 policy in force at the time treated fleeting or isolated material as weighing against indecency, and that the post-broadcast Golden Globes Order changed course without notice; the Government's forbearance toward Fox and a solitary 1960 statement about nudity did not supply the missing notice. The Court vacated both Second Circuit judgments and remanded, expressly declining to reach the First Amendment implications of the indecency policy or to reconsider Pacifica, and leaving the Commission free to modify its policy. Justice Ginsburg concurred in the judgment but wrote separately to state that Pacifica was wrong when issued and bears reconsideration.