613 F.3d 317 (2nd Cir. 2010), 06-1760-ag, Fox Television Stations, Inc. v. Federal Communications Commission
|Docket Nº:||06-1760-ag, 06-2750-ag, 06-5358-ag.|
|Citation:||613 F.3d 317|
|Opinion Judge:||POOLER, Circuit Judge:|
|Party Name:||FOX TELEVISION STATIONS, INC., CBS Broadcasting Inc., WLS Television, Inc., KTRK Television, Inc., KMBC Hearst-Argyle Television, Inc., ABC Inc., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION, United States of America, Respondents, NBC Universal, Inc., NBC Telemundo License Co., NBC Television Affiliates, FBC Television Affiliates Association,|
|Attorney:||Carter Phillips, Sidley Austin LLP, Washington, DC (R. Clark Wadlow, Jennifer Tatel, David S. Petron, Sidley Austin LLP, Washington, DC; Ellen S. Agress, Maureen A. O'Connell, Fox Television Stations, Inc., New York, NY, on the brief), for petitioner Fox Television Stations, Inc. Miguel Estrada, ...|
|Judge Panel:||LEVAL, POOLER, and HALL, Circuit Judges.|
|Case Date:||July 13, 2010|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued: Jan. 13, 2010.
This petition for review comes before us on remand from the Supreme Court. Previously we held, with Judge Leval dissenting, that the indecency policy of the Federal Communications Commission (" FCC" or " Commission" ) was arbitrary and capricious under the Administrative Procedure Act (" APA" ), 5 U.S.C. § 706(2)(A). See Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 462 (2d Cir.2007). The Supreme Court reversed, upholding the policy under the APA and remanding for consideration of petitioners' constitutional arguments. See FCC v. Fox Television Stations, Inc., __ U.S. __, __, 129 S.Ct. 1800, 1819, 173 L.Ed.2d 738 (2009) (Scalia, J.). We now hold that the FCC's policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here. Thus, we grant the petition for review and vacate the FCC's order and the indecency policy underlying it.1
Section 1464 of Title 18 of United States Code provides that " [w]hoever 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." In 1960, Congress authorized the FCC to impose civil forfeitures for violations of Section 1464. See 47 U.S.C. § 503(b)(1)(D). It was not until 1975, however, that the FCC first exercised its authority to regulate speech it deemed indecent but not obscene. The speech at issue was comedian George Carlin's " Filthy Words" monologue, a 12-minute string of expletives broadcast on the radio at 2:00 in the afternoon.
The FCC brought forfeiture proceedings against the Pacifica Foundation, the broadcaster that had aired the Carlin monologue. CITIZEN'S COMPLAINT AGAINST PACIFICA FOUND. STATION WBAI (FM), N.Y, N.Y., 56 F.C.C.2d 94 (1975). In finding that Pacifica had violated Section 1464, the Commission defined " indecent" speech as " language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience." Id. at ¶ 11. Pacifica petitioned for review to the D.C. Circuit, which declared the FCC's indecency regime invalid. See Pacifica Found. v. FCC, 556 F.2d 9 (D.C.Cir.1977). In finding the FCC's order both vague and overbroad, the court pointed out that the Commission's 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. " Id. at 14. Such a result, the court concluded, amounted to unconstitutional censorship. Id. at 18.
In a plurality opinion authored by Justice Stevens, the Supreme Court reversed. See FCC v. Pacifica Found., 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). The Court limited its review to the question of whether the FCC could impose a civil forfeiture for the Carlin monologue and declined to address Pacifica's argument that the regulation was overbroad and would chill protected speech. Id. at 734-35, 743 (" Invalidating any rule on the basis of its hypothetical application to situations not before the Court is ‘ strong medicine’ to be applied ‘ sparingly and only as a last resort.’ " (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973))). In limiting its review, the Court stressed the " specific factual context" of the Carlin monologue, id. at 742, 98 S.Ct. 3026, focusing in particular on Carlin's deliberate and repetitive use of expletives to describe sexual and excretory activities.
The Court then went on to hold that the FCC could, at least in the situation before it, restrict indecent speech in the broadcast context that did not meet the legal definition of obscenity. Id. at 744, 98 S.Ct. 3026 (concluding that " if the government has any such power [to restrict indecent speech], this was an appropriate occasion for its exercise" ). Resting on a nuisance rationale, the Court first noted that " of all forms of communication, it is broadcasting that has received the most limited First Amendment protection" because of its " uniquely pervasive presence in the lives of all Americans." Id. at 748, 98 S.Ct. 3026. Moreover, the nature of broadcast television-as opposed to printed materials-made it " uniquely accessible to children, even those too young to read." Id. at 749, 98 S.Ct. 3026. The Court, however, " emphasize[d] the narrowness of [its] holding." Id. at 750, 98 S.Ct. 3026. " [N]uisance may be merely a right thing in the wrong
place,-like a pig in the parlor instead of the barnyard. We simply hold that when 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." Id. at 750-51, 98 S.Ct. 3026 (internal quotation marks omitted).
Justices Powell and Blackmun, who concurred in a separate opinion, also made clear that the FCC's regulatory authority was limited, stating that the Court's holding did not give the FCC " an unrestricted license to decide what speech, protected in other media, may be banned from the airwaves in order to protect unwilling adults from momentary exposure to it in their homes." Id. at 759-60, 98 S.Ct. 3026 (Powell, J., concurring). Nor,...
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