Federal Communications Commission v. Fox Television Stations
Encyclopedia
FCC v. Fox Television Stations is a 2009 legal case in which the United States Supreme Court upheld regulations of the Federal Communications Commission
that ban "fleeting expletive
s" on television broadcasts, finding they were not arbitrary and capricious under the Administrative Procedure Act
. It sent the case back to lower courts to consider constitutional issues. On July 13, 2010, the Second Circuit struck down the FCC regulations on First Amendment
grounds for being "unconstitutionally vague, creating a chilling effect."
television network from two Billboard
Music Awards shows from 2002 and 2003. In the 2002 show, presenter Cher
said "fuck
'em" regarding people who she believed criticized her; in the 2003 show, presenter Nicole Richie
stated regarding her television show: “Why do they even call it The Simple Life
? Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
In 2004, the FCC prohibited "single uses of vulgar words" under any circumstances, including previous instances where it gave leeway for "fleeting" expletives that networks unknowingly allowed to enter the airwaves. However, the United States Court of Appeals for the Second Circuit
ruled in the case Fox et al. v. Federal Communications Commission (06-1760) that the FCC cannot punish broadcast stations for such incidents.
On the week of March 17, 2008, the Supreme Court announced that it would hear this case. The Supreme Court heard arguments from the case on November 4, 2008, which was also Election Day
. Chief Justice John G. Roberts and Associate Justice Antonin Scalia
expressed support for the FCC.
Supreme Court decision
The Supreme Court ruled in a 5-4 decision on April 28, 2009 that the Federal Communications Commission had not acted arbitrarily when it changed a long-standing policy and implemented a new ban on even "fleeting expletives" from the airwaves. The Court explicitly declined to decide whether the new rule is constitutional, and sent that issue back to the lower courts for their review. Justice Antonin Scalia
, in the majority opinion, wrote: "The FCC’s new policy and its order finding the broadcasts at issue actionably indecent were neither arbitrary nor capricious." In the dissenting opinion, Justice John Paul Stevens
claimed that this decision was hypocritical given the presence of television commercials for products treating impotence or constipation
. The Parents Television Council
praised the Court's decision as an "incredible victory for families".
First Amendment question
In its decision, "the court did not definitively settle the First Amendment implications of allowing a federal agency to censor
broadcasts," and left that issue for the Second Circuit Court of Appeals. However, Justice Clarence Thomas
's separate opinion openly stated his willingness to overturn Federal Communications Commission v. Pacifica Foundation
and Red Lion Broadcasting Co. v. Federal Communications Commission
, the two cases on which all FCC authority rest, even as he joined the majority on procedural grounds.
Subsequent history
On July 13, 2010, the Second Circuit vacated the FCC order and policy on First Amendment grounds, finding that "by prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable
material which should be completely protected under the First Amendment." The Second Circuit added The Second Circuit denied rehearing en banc. The Supreme Court accepted the case for a second review on June 27, 2011.
See also
External links
Federal Communications Commission
The Federal Communications Commission is an independent agency of the United States government, created, Congressional statute , and with the majority of its commissioners appointed by the current President. The FCC works towards six goals in the areas of broadband, competition, the spectrum, the...
that ban "fleeting expletive
Fleeting expletive
A fleeting expletive is a non-scripted verbal profanity or obscenity expressed and broadcast during a live television broadcast or radio broadcast...
s" on television broadcasts, finding they were not arbitrary and capricious under the Administrative Procedure Act
Administrative Procedure Act
The Administrative Procedure Act , , is the United States federal law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review...
. It sent the case back to lower courts to consider constitutional issues. On July 13, 2010, the Second Circuit struck down the FCC regulations on First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
grounds for being "unconstitutionally vague, creating a chilling effect."
Background
The case entered the Supreme Court's docket in October 2007 and specifically concerns obscene language broadcast on the FoxFox Broadcasting Company
Fox Broadcasting Company, commonly referred to as Fox Network or simply Fox , is an American commercial broadcasting television network owned by Fox Entertainment Group, part of Rupert Murdoch's News Corporation. Launched on October 9, 1986, Fox was the highest-rated broadcast network in the...
television network from two Billboard
Billboard (magazine)
Billboard is a weekly American magazine devoted to the music industry, and is one of the oldest trade magazines in the world. It maintains several internationally recognized music charts that track the most popular songs and albums in various categories on a weekly basis...
Music Awards shows from 2002 and 2003. In the 2002 show, presenter Cher
Cher
Cher is an American recording artist, television personality, actress, director, record producer and philanthropist. Referred to as the Goddess of Pop, she has won an Academy Award, a Grammy Award, an Emmy Award, three Golden Globes and a Cannes Film Festival Award among others for her work in...
said "fuck
Fuck
"Fuck" is an English word that is generally considered obscene which, in its most literal meaning, refers to the act of sexual intercourse. By extension it may be used to negatively characterize anything that can be dismissed, disdained, defiled, or destroyed."Fuck" can be used as a verb, adverb,...
'em" regarding people who she believed criticized her; in the 2003 show, presenter Nicole Richie
Nicole Richie
Nicole Camille Richie is an American fashion designer, author, actress, singer and television personality. Her father was Peter Michael Escovedo, a musician who played for a brief time with Lionel Richie, and her mother Karen was the executive assistant for Sheila Escovedo...
stated regarding her television show: “Why do they even call it The Simple Life
The Simple Life
The Simple Life was a reality television series that was broadcast from December 2, 2003 to August 5, 2007. The first three seasons aired on Fox, and the final two on E!...
? Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
In 2004, the FCC prohibited "single uses of vulgar words" under any circumstances, including previous instances where it gave leeway for "fleeting" expletives that networks unknowingly allowed to enter the airwaves. However, the United States Court of Appeals for the Second Circuit
United States Court of Appeals for the Second Circuit
The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...
ruled in the case Fox et al. v. Federal Communications Commission (06-1760) that the FCC cannot punish broadcast stations for such incidents.
On the week of March 17, 2008, the Supreme Court announced that it would hear this case. The Supreme Court heard arguments from the case on November 4, 2008, which was also Election Day
United States presidential election, 2008
The United States presidential election of 2008 was the 56th quadrennial presidential election. It was held on November 4, 2008. Democrat Barack Obama, then the junior United States Senator from Illinois, defeated Republican John McCain, the senior U.S. Senator from Arizona. Obama received 365...
. Chief Justice John G. Roberts and Associate Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
expressed support for the FCC.
Supreme Court decision
The Supreme Court ruled in a 5-4 decision on April 28, 2009 that the Federal Communications Commission had not acted arbitrarily when it changed a long-standing policy and implemented a new ban on even "fleeting expletives" from the airwaves. The Court explicitly declined to decide whether the new rule is constitutional, and sent that issue back to the lower courts for their review. Justice Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, in the majority opinion, wrote: "The FCC’s new policy and its order finding the broadcasts at issue actionably indecent were neither arbitrary nor capricious." In the dissenting opinion, Justice John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
claimed that this decision was hypocritical given the presence of television commercials for products treating impotence or constipation
Constipation
Constipation refers to bowel movements that are infrequent or hard to pass. Constipation is a common cause of painful defecation...
. The Parents Television Council
Parents Television Council
The Parents Television Council is a U.S. based advocacy group founded by conservative activist L. Brent Bozell III in 1995 using the National Legion of Decency as a model...
praised the Court's decision as an "incredible victory for families".
First Amendment question
In its decision, "the court did not definitively settle the First Amendment implications of allowing a federal agency to censor
Censorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
broadcasts," and left that issue for the Second Circuit Court of Appeals. However, Justice Clarence Thomas
Clarence Thomas
Clarence Thomas is an Associate Justice of the Supreme Court of the United States. Succeeding Thurgood Marshall, Thomas is the second African American to serve on the Court....
's separate opinion openly stated his willingness to overturn Federal Communications Commission v. Pacifica Foundation
Federal Communications Commission v. Pacifica Foundation
Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 is a landmark United States Supreme Court decision that defined the power of the Federal Communications Commission over indecent material as applied to broadcasting...
and Red Lion Broadcasting Co. v. Federal Communications Commission
Red Lion Broadcasting Co. v. Federal Communications Commission
Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 , established the doctrine that broadcast television stations are full First Amendment speakers whose editorial speech could not be regulated absent good reason...
, the two cases on which all FCC authority rest, even as he joined the majority on procedural grounds.
Subsequent history
On July 13, 2010, the Second Circuit vacated the FCC order and policy on First Amendment grounds, finding that "by prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable
material which should be completely protected under the First Amendment." The Second Circuit added The Second Circuit denied rehearing en banc. The Supreme Court accepted the case for a second review on June 27, 2011.
See also
- Federal Communications Commission v. Pacifica FoundationFederal Communications Commission v. Pacifica FoundationFederal Communications Commission v. Pacifica Foundation, 438 U.S. 726 is a landmark United States Supreme Court decision that defined the power of the Federal Communications Commission over indecent material as applied to broadcasting...
- List of United States Supreme Court cases, volume 556
- List of United States Supreme Court cases
External links
Federal Communications Commission v. Pacifica Foundation
Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 is a landmark United States Supreme Court decision that defined the power of the Federal Communications Commission over indecent material as applied to broadcasting...