Oyez FCC v. FOX Television Stations Case

Oyez

FCC v. FOX TELEVISION STATIONS

Case Basics

Docket No.

Petitioner

Federal Communications Commission, et al.

Respondent

Fox Television Stations, Inc., et al.

Granted

Monday, June 27, 2011 Term: 2010-20192011

Location: 40.714353, -74.005973

Facts of the Case

In 2004, the FCC said that TV stations were permitted to be fined for indecency violations in cases when a vulgarity was broadcast during a live program. That happened on Fox in 2002 and 2003 when Cher and Nicole Richie cursed during award shows and were not bleeped. The FCC never actually fined Fox, but the network took issue with the regulatory agency setting the stage for future fines and challenged the fleeting-expletive rules. The U.S. Court of Appeals for the Second Circuit ruled that the FCC's rules were "unconstitutionally vague" and had a "chilling effect."

BlueBook Citation:

Chicago.FCC v. FOX TELEVISION STATIONS. The Oyez Project at IIT Chicago-Kent College of Law. 10 November 2011.

Question

Does the current indecency enforcement regime violate either the First or Fifth Amendments?

The 3 member panel of the U.S. Court of Appeals for the Second Circuit invalidated the policy regulating indecency of the Federal Communications Commission's (FCC) policy regulating indecency. This ruling prevents the agency from enforcing the prohibition on indecent speech in television broadcast media. There are numerous stakeholder's interests at stake which include the First and Amendment rights of broadcasters and the public, the interests of children and parents and also the Government in its legal role in protecting those interests. Additionally, the FCC has since begun imposing huge fines against broadcasters. These jeopardize the ability of many small broadcasters to keep in business (Levin, 2010, 558).

The Second Circuit ruled that the indecency policy that the FCC violated the First and Fifth Amendments because the policy was unconstitutionally vague and impermissibly stifled protected speech. This ruling, along with the underlying reasoning puts in question the entire mission of the FCC in eliminating indecent broadcasts while adolescents are likely to be watching. This was done by suggesting that the FCC desired approach could inherently violate the vagueness doctrine as applied in the First Amendment. Specifically, the First and Fifth Amendments require that federal government restrictions on speech be sufficiently delineated to allow the regulated community fair opportunity to conform its to the law (Lloyd, 2007, 21-22).

While this might have made sense in the past, present technology has rendered this reasoning obsolete. This was based on the 1978 case of FCC v. Pacifica Foundation. Here the Supreme Court held that over-the-air broadcast media was like an "unwanted intruder" in the home. This made it uniquely accessible to children, therefore the FCC has a definitive role in maintaining cleanliness in the transmissions. Due to these unique characteristics, the FCC's regulation of such broadcast media was held to a lesser constitutional standard than other traditional types of media. The ruling was based largely based on the simpler technology of the time where there were three channels, little cable, no VCRs, no World Wide Web, no DVDs and no satellite TV. Since, the FCC has regulated such broadcasts under that lower constitutional standard. This includes the fining of stations for "fleeting expletives" uttered by celebrities on live awards shows (Hunt, 2007, 224) .

The fleeting expletives issue was revisited for a second time and in 2009, the federal court ruled that the FCC rule against "fleeting expletives" was not unlawful under administrative law. This is the body of law governing executive agencies' power. The Second Circuit Court struck down this rule on First Amendment grounds. This was based largely on reasoning that Pacifica was obviated by technological change. The Cato Institute joined forces in an amicus brief along with other groups advocating freedom in technology policy to underscore just how different the technological world is today from 1978. While groups who joining the brief did not agree with each other all the time, they agree on the fact that broadcast media should receive full First Amendment protection. They pointed out how the existence of Video-On-Demand services (Netflix, DVRs), Internet sites such as Hulu and massive access to DVDs has radically transformed the consumption of media. Broadcast media is not any longer the "unwanted intruder," but has become the invited guest. The existence of parental control mechanisms such as V-Chip, parental locks in cable and satellite boxes and services like "TV Guardian" give parents all the tools needed to ensure that children will not be exposed to fleeting expletives or other unwanted content. Therefore, the FCC a vague and overly broad rule could not pass heightened scrutiny and could only survive under a lessened First Amendment standard. In reality, we live in a world that is radically different than in 1978. Therefore, it is understandable that the new rules give broadcast media the same level of free speech protection as any other kind of media, broadcast or not (Shapiro, 2009, 8).