Federal Communications Commission v. Fox Television Stations, Inc.

Holding: Because the FCC failed to give Fox and ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the FCC’s standards as applied to these broadcasts were vague.

Plain English Summary: In 2004, the Federal Communications Commission, the government agency that regulates radio and television stations (and, sometimes, those stations’ networks), changed its policy on what it considers “indecent” and thus could not be put on radio or TV between 10 a.m. and 6 p.m., because children might be watching or listening. Before 2004, the FCC banned vulgar four-letter words only if they had been repeated over and over again. With the change in policy, the FCC said it would ban even a single, fleeting use of such a word during the daytime hours. It later said that it would also ban even momentary glimpses, on TV, of a nude body if it was shown in a sexually provocative way. The Supreme Court was asked in this case to decide whether it violates the free-speech rights of radio and TV stations, and their networks, for the FCC to impose such a broad ban. In deciding the case, however, the Court did not settle whether the FCC policy violated the First Amendment. Instead, it held only that broadcasters had a constitutional right to be warned in advance of what the new policy prohibited, and the FCC had imposed its changed policy after the broadcasts had aired, rather than before. The FCC has the option now of reconsidering its policy, or keeping it as is, and awaiting a new constitutional challenge in court. The Court’s ruling was by unanimous vote, but Justice Sonia Sotomayor did not participate, because she had some involvement with the case earlier when she was a judge on the Second Circuit Court of Appeals in New York.

Judgment: Vacated and remanded, 8-0, in an opinion by Justice Kennedy on June 21, 2012. Justice Ginsburg filed an opinion concurring in the judgment. (Sotomayor, J., recused.)

Briefs and Documents

Merits Briefs for the Petitioners

• Brief for the Federal Communications Commission et al.
• Reply brief for  Federal Communications Commission, et al.

Amicus Briefs in Support of the Petitioners

• Brief for National Religious Broadcasters
• Brief for Parents Television Council
• Brief for Morality in Media, Inc.
• Brief for Focus on the Family and Family Research Council

Amicus Briefs in Support of Neither Party

• Brief for Yale Law School Information Society Project Scholars et al. 
• Brief for American Academy of Pediatrics et al. in support of affirmance

Merit Briefs for the Respondents

• Brief for Fox Television Station, Inc., NBCUniversal Media, LLC, CBS Broadcasting, Inc., and FBC Television Affiliates Association
• Brief for  Center for Creative Voices and Future of Music Coalition
• Brief for CBS Television Network Affiliates Association and NBC Television Affiliates
• Brief for ABC Television Affiliates Association
• Brief for ABC, Inc., KTRK Television, Inc., and WLS Television

Amicus Briefs in Support of the Respondents

• Brief for the Cato Institute et al. 
• Brief for the National Association of Broadcasters and Radio-Television Digital News Association
• Brief for Former FCC Officials
• Brief for the Reporter’s Committee for Freedom of the Press adn the E.W. Scripps Company 
• Brief for the ACLU et al.
• Brief for the Pennsylvania Center for the First Amendment and the Marion B. Brechner First Amendment Project 
• Brief for the Public Broadcasting Service
• Brief for the Student Press Law Center and College Broadcasters, Inc.

Certiorari-stage documents

• Opinion below (2d Circuit)
• Amicus brief of Parents Television Council

• Petition for certiorari
• Brief in opposition of respondents Fox Television Stations, Inc. et al.
• Petitioners’ reply