SCOTUS Vacates Second Circuit in FCC v. Fox

For the second time this week, the Supreme Court has overruled the Second Circuit Court of Appeals. First, it was on the issue of overtime pay for pharmaceutical sales reps. Now, it's on a test of the Federal Communications Commission (FCC) indecency policy.

Thursday, the Supreme Court tossed multiple penalties against ABC and Fox, which were accused of violating FCC indecency rules by broadcasting profanity and nudity. The Court, in an opinion written by Justice Anthony Kennedy, held that, because the FCC failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the indecency policy as applied to these broadcasts was vague.

Before we dive into the details of the opinion, let's talk about the saucy stuff: the offensive broadcasts.

The first questionable broadcast was the 2002 Billboard Music Awards on Fox. During the show, Cher dropped the f-bomb during an unscripted acceptance speech. Fox clearly didn't learn its lesson. The second broadcast at issue was the 2003 Billboard Music Awards. As Justice Kennedy describes it, "a person named Nicole Richie" made unscripted remarks that included two expletives. The third incident involved a 2003 episode of the ABC show NYPD Blue, which "showed the nude buttocks of an adult female character for approximately seven seconds and for a moment the side of her breast."

The FCC received indecency complaints about all three broadcasts, and imposed fines and penalties on the networks for violations of the indecency policy, which prohibited fleeting expletives and momentary nudity.

In FCC v. Fox Television Stations, Inc., (now, Fox I), the Court held that the FCC'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, because the Second Circuit Court of Appeals had yet to do so. On remand, the Second Circuit found the policy was vague and, as a result, unconstitutional.

This week, the Supreme Court vacated the Second Circuit's more recent opinion in the case and ditched the fines against the networks, but it once again declined to rule on the constitutionality of the indecency policy. Instead, the Court restricted its ruling to find that ABC and Fox couldn't have known that the broadcasts in question could lead to penalties, reports The Washington Post.

Related Resources:

• FCC v. Fox Television Stations, Inc (FindLaw's CaseLaw)
• Supreme Court Rules Against FCC in Indecency Case (The Wall Street Journal)
• CBS Wins Janet Jackson Wardrobe Malfunction Appeal (FindLaw's Third Circuit Blog)