Federal Communications Commission v. Fox Television Stations Inc., No. 10-1293; U.S. Supreme Court; opinion by Kennedy, J.; concurrence by Ginsburg, J.; decided June 21, 2012. On certiorari to the U.S. Court of Appeals for the Second Circuit.
Title 18 U.S.C. § 1464 bans the broadcast of “any obscene, indecent, or profane language.” The Federal Communications Commission began enforcing § 1464 in the 1970s. In FCC v. Pacifica Foundation, 438 U.S. 726, this court found that the commission’s order banning George Carlin’s “Filthy Words” monologue passed First Amendment scrutiny, but did not decide whether “an occasional expletive … would justify any sanction,” id. at 750. In the ensuing years, the commission went from strictly observing the narrow circumstances of Pacifica to indicating that it would assess the full context of allegedly indecent broadcasts rather than limit its regulation to an index of indecent words or pictures. However, it continued to note the important difference between isolated and repeated broadcasts of indecent material. And in a 2001 policy statement, it even included, as one of the factors significant to the determination of what was patently offensive, “whether the material dwells on or repeats at length” the offending description or depiction.
