Fed. Commc'ns Comm'n v. Fox Television Stations, Inc.

• Decision Date: 21 June 2012
• Docket Number: No. 10–1293.,10–1293.
• Citation: 132 S.Ct. 2307,183 L.Ed.2d 234,567 U.S. 239
• Parties: FEDERAL COMMUNICATIONS COMMISSION, et al., Petitioners v. FOX TELEVISION STATIONS, INC., et al. Federal Communications Commission, et al., Petitioners v. ABC, Inc., et al.
• Court: U.S. Supreme Court

567 U.S. 239

132 S.Ct. 2307

183 L.Ed.2d 234

FEDERAL COMMUNICATIONS COMMISSION, et al., Petitioners

v.FOX TELEVISION STATIONS, INC., et al.

Federal Communications Commission, et al., Petitioners

v.ABC, Inc., et al.

No. 10–1293.

Supreme Court of the United States

Argued Jan. 10, 2012.

Decided June 21, 2012.

Donald B. Verrilli, Jr., Solicitor General, Washington, DC, for Petitioners.

Carter G. Phillips, Washington, DC, for Respondents Fox Television Stations, et al.

Seth P. Waxman, for Respondents ABC, Inc., et al.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Department of Justice, Washington, DC, for Petitioners.

Robert A. Long, Jr., Counsel of Record, Jonathan D. Blake, Jennifer A. Johnson, Enrique Armijo, Covington & Burling LLP, Washington, DC, for Respondents CBS Television Network Affiliates Association and NBC Television Affiliates.

Andrew Jay Schwartzman, Chrystiane B. Pereira, Media Access Project, Washington, DC, for Respondents Center for Creative Voices in Media and The Future of Music Coalition.

Wade H. Hargrove, Counsel of Record, Mark J. Prak, David Kushner, Julia C. Ambrose, Brooks, Pierce, McLendon, Humphrey & Leonard, LLP, Raleigh, NC, for Respondents ABC Television Affiliates Association, et al.

Ellen S. Agress, Maureen A. O'Connell, Fox Television Stations, Inc., New York, NY, Carter G. Phillips, Counsel of Record, Mark D. Schneider, James P. Young, David S. Petron, Ryan C. Morris, Sidley Austin LLP, Washington, DC, for Respondent Fox Television Stations, Inc.

Susan Weiner, NBC Universal, Inc., New York, NY, Jonathan H. Anschell, CBS Broadcasting Inc., Studio City, CA, Susanna M. Lowy, CBS Broadcasting Inc., New York, NY, Miguel A. Estrada, Gibson, Dunn & Crutcher LLP, Washington, DC, for Respondent NBC Universal Media, LLC.

Robert Corn–Revere, Ronald G. London, Davis Wright Tremaine LLP, Washington, DC, for Respondent CBS Broadcasting Inc.

John R. Feore, Jr., Kevin P. Latek, Dow Lohnes PLLC, Washington, DC, for Respondent FBC Television Affiliates Association.

John W. Zucker, ABC, Inc., New York, NY, Seth P. Waxman, Counsel of Record, Paul R.Q. Wolfson, Daniel S. Volchok, Sonya L. Lebsack, Wilmer Cutler Pickering, Hale and Dorr LLP, Washington, DC, for Respondents ABC, Inc., KTRK Television, Inc. and WLS Television, Inc.

Justice KENNEDY delivered the opinion of the Court.

In FCC v. Fox Television Stations, Inc., 556 U.S. 502, 529, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009) (Fox I), the Court held that the Federal Communication Commission's decision to modify its indecency enforcement regime to regulate so-called fleeting expletives was neither arbitrary nor capricious. The Court then declined to address the constitutionality of the policy, however, because the United States Court of Appeals for the Second Circuit had yet to do so. On remand, the Court of Appeals found the policy was vague and, as a result, unconstitutional. 613 F.3d 317 (2010). The case now returns to this Court for decision upon the constitutional question.

I

In Fox I, the Court described both the regulatory framework through which the Commission regulates broadcast indecency and the long procedural history of this case. The Court need not repeat all that history, but some preliminary discussion is necessary to understand the constitutional issue the case now presents.

A

Title 18 U.S.C. § 1464 provides that "[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined ... or imprisoned not more than two years, or both." The Federal Communications Commission (Commission) has been instructed by Congress to enforce § 1464 between the hours of 6 a.m. and 10 p.m., see Public Telecommunications Act of 1992, § 15(a), 106 Stat. 954, note following 47 U.S.C. § 303, p. 113 (Broadcasting of Indecent Programming). And the Commission has applied its regulations to radio and television broadcasters alike, see Fox I, supra, at 505–506, 129 S.Ct. 1800; see also 47 CFR § 73.3999 (2010) (Commission regulation prohibiting the broadcast of any obscene material or any indecent material between 6 a.m. and 10 p.m.). Although the Commission has had the authority to regulate indecent broadcasts under § 1464 since 1948 (and its predecessor commission, the Federal Radio Commission, since 1927), it did not begin to enforce § 1464 until the 1970's. See Campbell, Pacifica Reconsidered: Implications for the Current Controversy over Broadcast Indecency, 63 Fed. Com. L.J. 195, 198 (2010).

This Court first reviewed the Commission's indecency policy in FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). In Pacifica , the Commission determined that George Carlin's "Filthy Words" monologue was indecent. It contained " ‘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 732, 98 S.Ct. 3026 (quoting 56 F.C.C.2d 94, 98 (1975) ). This Court upheld the Commission's ruling. The broadcaster's statutory challenge was rejected. The Court held the Commission was not engaged in impermissible censorship within the meaning of 47 U.S.C. § 326 (1976 ed.), see 438 U.S., at 735–739, 98 S.Ct. 3026, and that § 1464's definition of indecency was not confined to speech with an appeal to the prurient interest, see id., at 738–741, 98 S.Ct. 3026. Finding no First Amendment violation, the decision explained the constitutional standard under which regulations of broadcasters are assessed. It observed that "broadcast media have established a uniquely pervasive presence in the lives of all Americans," id., at 748, 98 S.Ct. 3026, and that "broadcasting is uniquely accessible to children, even those too young to read," id., at 749, 98 S.Ct. 3026. In light of these considerations, "broadcasting ... has received the most limited First Amendment protection." Id., at 748, 98 S.Ct. 3026. Under this standard the Commission's order passed constitutional scrutiny. The Court did note the narrowness of its holding, explaining that it was not deciding whether "an occasional expletive ... would justify any sanction." Id., at 750, 98 S.Ct. 3026; see also id., at 760–761, 98 S.Ct. 3026 (Powell, J., concurring in part and concurring in judgment) ("[C]ertainly the Court's holding ... does not speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here").

From 1978 to 1987, the Commission did not go beyond the narrow circumstances of Pacifica and brought no indecency enforcement actions. See In re Infinity Broadcasting Corp., 3 FCC Rcd. 930 (1987) ; see also In re Application of WGBH Educ. Foundation, 69 F.C.C.2d 1250, 1254 (1978) (Commission declaring it "intend[s] strictly to observe the narrowness of the Pacifica holding"). Recognizing that Pacifica provided "no general prerogative to intervene in any case where words similar or identical to those in Pacifica are broadcast over a licensed radio or television station," the Commission distinguished between the "repetitive occurrence of the ‘indecent’ words" (such as in the Carlin monologue) and an "isolated" or "occasional" expletive, that would not necessarily be actionable. 69 F.C.C.2d, at 1254.

In 1987, the Commission determined it was applying the Pacifica standard in too narrow a way. It stated that in later cases its definition of indecent language would "appropriately includ[e] a broader range of material than the seven specific words at issue in [the Carlin monologue]." In re Pacifica Foundation Inc., 2 FCC Rcd. 2698, 2699. Thus, the Commission indicated it would use the "generic definition of indecency" articulated in its 1975 Pacifica order, Infinity Order, 3 FCC Rcd., at 930, and assess the full context of allegedly indecent broadcasts rather than limiting its regulation to a "comprehensive index ... of indecent words or pictorial depictions," id., at 932.

Even under this context based approach, the Commission continued to note the important difference between isolated and repeated broadcasts of indecent material. See ibid. (considering variables in determining whether material is patently offensive including "whether allegedly offensive material is isolated or fleeting"). In the context of expletives, the Commission determined "deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency." Pacifica Order, 2 FCC Rcd., at 2699. For speech "involving the description or depiction of sexual or excretory functions ... [t]he mere fact that specific words or phrases are not repeated does not mandate a finding that material that is otherwise patently offensive ... is not indecent." Ibid.

In 2001, the Commission issued a policy statement intended "to provide guidance to the broadcast industry regarding [its] caselaw interpreting 18 U.S.C. § 1464 and [its] enforcement policies with respect to broadcast indecency." In reIndustry Guidance on Commission's Case Law Interpreting 18 U.S.C. § 1464 and Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999. In that document the Commission restated that for material to be indecent it must depict sexual or excretory organs or activities and be patently offensive as measured by contemporary community standards for the broadcast medium. Id., at 8002. Describing the framework of what it considered patently offensive, the Commission explained that three factors had proved significant:

"(1) [T]he explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value."

...