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.

It was against this regulatory background that the three incidents at issue took place. Two concern isolated utterances of obscene words during two live broadcasts aired by respondent Fox Television Stations Inc. The third occurred during an episode of a television show broadcast by respondent ABC Television Network, when the nude buttocks of an adult female character were shown for approximately seven seconds and the side of her breast for a moment. After these incidents, but before the commission issued notices of apparent liability to Fox and ABC, the commission issued its Golden Globes order, declaring for the first time that fleeting expletives could be actionable. It then concluded that the Fox and ABC broadcasts violated this new standard. It found the Fox broadcasts indecent, but declined to propose forfeitures.

The Second Circuit reversed, finding the commission’s decision to modify its indecency enforcement regime to regulate fleeting expletives arbitrary and capricious. This court reversed and remanded for the Second Circuit to address respondents’ First Amendment challenges. FCC v. Fox Television Stations Inc., 556 U.S. 502.

On remand, the Second Circuit found the policy unconstitutionally vague and invalidated it in its entirety. In the ABC case, the commission found the display actionably indecent, and imposed a $27,500 forfeiture on each of the 45 ABC-affiliated stations that aired the episode. The Second Circuit vacated the order in light of its Fox decision.

Held: Because the commission 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 commission’s standards as applied to these broadcasts were vague. Pp. 11-18.

(a) The fundamental principle that laws regulating persons or entities must give fair notice of what conduct is required or proscribed, see, e.g., Connally v. General Constr. Co., 269 U.S. 385, 391, is essential to the protections provided by the Fifth Amendment’s Due Process Clause, see United States v. Williams, 553 U.S. 285, 304, which requires the invalidation of impermissibly vague laws. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Ibid. The void for vagueness doctrine addresses at least two connected but discrete due process concerns: Regulated parties should know what is required of them so they may act accordingly; and precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech. Pp. 11-12.

(b) These concerns are implicated here, where the broadcasters claim that the lengthy procedural history of their cases shows that they did not have fair notice of what was forbidden. Under the 2001 guidelines in force when the broadcasts occurred, a key consideration was “whether the material dwell[ed] on or repeat[ed] at length” the offending description or depiction, but in the 2004 Golden Globes order, issued after the broadcasts, the commission changed course and held that fleeting expletives could be a statutory violation. It then applied this new principle to these cases. Its lack of notice to Fox andABC of its changed interpretation failed to give them “fair notice of what is prohibited.” Williams, 553 U.S. at 304. Pp. 12-13.

(c) Neither of the government’s contrary arguments is persuasive. It claims that Fox cannot establish unconstitutional vagueness because the commission declined to impose a forfeiture on Fox and said that it would not consider the indecent broadcast in renewing station licenses or in other contexts. But the commission has the statutory power to take into account “any history of prior offenses” when setting a forfeiture penalty, 47 U.S.C. § 503(b)(2)(E), and the due process protection against vague regulations “does not leave [regulated parties] … at the mercy of noblesse oblige.” United States v. Stevens, 559 U.S. —. The challenged orders could also have an adverse impact on Fox’s reputation with audiences and advertisers alike.

The government argues that ABC had notice that its broadcast would be considered indecent. But an isolated statement in a 1960 commission decision declaring that televising nudes might be contrary to § 1464 does not suffice for the fair notice required when the government intends to impose more than a $1 million fine for allegedly impermissible speech. Moreover, previous commission decisions had declined to find isolated and brief moments of nudity actionably indecent. In light of these agency decisions, and the absence of any notice in the 2001 guidance that seven seconds of nude buttocks would be found indecent, ABC lacked constitutionally sufficient notice prior to being sanctioned. Pp. 13-17.

(d) It is necessary to make three observations about this decision’s scope. First, because the court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the commission’s indecency policy or reconsider Pacifica at this time. Second, because the court rules that Fox and ABC lacked notice at the time of their broadcasts that their material could be found actionably indecent under then-existing policies, the court need not address the constitutionality of the current indecency policy as expressed in the Golden Globes order and subsequent adjudications. Third, this opinion leaves the commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements and leaves courts free to review the current, or any modified, policy in light of its content and application. Pp. 17-18.

613 F.3d 317 (first case) and 404 Fed. Appx. 530 (second case), vacated and remanded.

Sotomayor, J., took no part in the consideration or decision of the cases.

Together with Federal Communications Commission v. ABC Inc. (see this court’s Rule 12.4), also on certiorari to the same court.