January 11, 2012
In Fox v. FCC, the Second Circuit held that the FCC’s indecency policy is impermissibly vague and violates free speech. The citation to the Second Circuit’s opinion is 613 F.3d 317. The Supreme Court granted Certiorari in this case and heard oral arguments Tuesday, January 10th. The citation to the petition for writ of cert is 2011 WL 1540430.
The Second Circuit addressed the dangers of the FCC’s current three-factor “patently offensive” test. The Court pointed out inconsistencies in how this test has been applied and also a lack of discussion as to how each factor is applied, thus resulting in a failure to provide notice to broadcasters as to how the Commission will apply the factors in the future.
The Court also noted that the same vagueness issues exist with the Commission’s presumption that words like “f*ck” and “sh*t” are prohibited. Under the current policy, all variations of the two terms are prohibited unless they fall under the “bona fide news” exception or the “artistic necessity” exception. The Court stated that the Commission has failed to explain the “bona fide news” exception except to concede that it is not absolute. The “artistic necessity” exception permits the use of “fleeting expletives” if they are “demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance.” You can read more about the “artistic necessity” exception in the Commission’s omnibus order available at 2006 WL 656783.
The Second Circuit explained that while the currently policy provides the most flexibility to the Commission, that flexibility is dangerous, stating:
“The FCC’s current indecency policy undoubtedly gives the FCC more flexibility, but this flexibility comes at a price. The “artistic necessity” and “ bona fide news” exceptions allow the FCC to decide, in each case, whether the First Amendment is implicated. The policy may maximize the amount of speech that the FCC can prohibit, but it results in a standard that even the FCC cannot articulate or apply consistently”. 613 F.3d 317, 332.
The Second Circuit also expressed concern over the chilling effect this vague policy has on speech, citing examples of broadcasters deciding not to air particular programming for fear of being fined or losing their license. The court warned:
“If the FCC’s policy is allowed to remain in place, there will undoubtedly be countless other situations where broadcasters will exercise their editorial judgment and decline to pursue contentious people or subjects, or will eschew live programming altogether, in order to avoid the FCC’s fines. This chill reaches speech at the heart of the First Amendment.” 613 F.3d 317, 334.
If you are interested in seeing how the Commission has applied these tests you can search in FCC materials.
On Westlaw go to the database Federal Communications – FCC Record (FCOM-FCC)
On WestlawNext, type FCC into the Search bar and when it says “looking for this?” click on Federal Communications Commission (FCC).
Sample Search: (“patently offensive” /10 three-factor) (presum! /5 profan! indecen!)
Transcipts: The Supreme Court oral argument transcripts are available at this citation: 2012 WL 72459
If you would like to be alerted when the Supreme Court’s decision comes out, set up a WestClip with this as your query: ti(Fed! & Fox) in the SCT database. The steps for setting up a WestClip are available here: Westlaw Quick Reference Guide: Using Westclip (pdf).