Federal Communications Commission v. Fox Television Stations, Inc. ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FEDERAL COMMUNICATIONS COMMISSION ET AL. v.
FOX TELEVISION STATIONS, INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 10–1293. Argued January 10, 2012—Decided June 21, 2012*
Title 18 U.S. C. §1464 bans the broadcast of “any obscene, indecent, or
profane language.” The Federal Communications Commission
(Commission) began enforcing §1464 in the 1970’s. In FCC v. Pacif-
ica 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 cir-
cumstances of Pacifica to indicating that it would assess the full con-
text 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 broad-
casts 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 re-
peats 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 Sta-
tions, 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 Lia-
——————
* Together with Federal Communications Commission v. ABC, Inc.,
et al. (see this Court’s Rule 12.4), also on certiorari to the same court.
2 FCC v. FOX TELEVISION STATIONS, INC.
Syllabus
bility to Fox and ABC, the Commission issued its Golden Globes Or-
der, declaring for the first time that fleeting expletives could be ac-
tionable. It then concluded that the Fox and ABC broadcasts violated
this new standard. It found the Fox broadcasts indecent, but de-
clined to propose forfeitures. The Second Circuit reversed, finding
the Commission’s decision to modify its indecency enforcement re-
gime to regulate fleeting expletives arbitrary and capricious. This
Court reversed and remanded for the Second Circuit to address re-
spondents’ First Amendment challenges. FCC v. Fox Television Sta-
tions, 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 mo-
mentary 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 enti-
ties 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 essen-
tial to the protections provided by the Fifth Amendment’s Due Pro-
cess 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 regu-
lation 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 enforce-
ment.” 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 Or-
der, issued after the broadcasts, the Commission changed course and
held that fleeting expletives could be a statutory violation. It then
Cite as: 567 U. S. ____ (2012) 3
Syllabus
applied this new principle to these cases. Its lack of notice to Fox and
ABC of its changed interpretation failed to give them “fair notice of
what is prohibited.” Williams, supra, at 304. Pp. 12–13.
(c) Neither of the Government’s contrary arguments is persuasive.
It claims that Fox cannot establish unconstitutional vagueness be-
cause 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 set-
ting a forfeiture penalty, 47 U.S. C. §503(b)(2)(E), and the due pro-
cess 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 con-
trary to §1464 does not suffice for the fair notice required when the
Government intends to impose over a $1 million fine for allegedly
impermissible speech. Moreover, previous Commission decisions had
declined to find isolated and brief moments of nudity actionably inde-
cent. 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 re-
consider 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 poli-
cies, the Court need not address the constitutionality of the current
indecency policy as expressed in the Golden Globes Order and subse-
quent 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.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, THOMAS, BREYER, ALITO, and KAGAN, JJ., joined.
4 FCC v. FOX TELEVISION STATIONS, INC.
Syllabus
GINSBURG, J., filed an opinion concurring in the judgment. SOTOMAYOR,
J., took no part in the consideration or decision of the cases.
Cite as: 567 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1293
_________________
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
PETITIONERS v. FOX TELEVISION STATIONS, INC.,
ET AL.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
PETITIONERS v. ABC, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 21, 2012]
JUSTICE KENNEDY delivered the opinion of the Court.
In FCC v. Fox Television Stations, Inc., 556 U.S. 502,
529 (2009) (Fox I), the Court held that the Federal Com­
munication Commission’s decision to modify its indecency
enforcement regime to regulate so-called fleeting exple­
tives was neither arbitrary nor capricious. The Court
then declined to address the constitutionality of the policy,
however, because the United States Court of Appeals for
the Second Circuit had yet to do so. On remand, the Court
of Appeals found the policy was vague and, as a result,
unconstitutional. 613 F.3d 317 (2010). The case now
returns to this Court for decision upon the constitutional
question.
I
In Fox I, the Court described both the regulatory
framework through which the Commission regulates
broadcast indecency and the long procedural history of
2 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
this case. The Court need not repeat all that history, but
some preliminary discussion is necessary to understand
the constitutional issue the case now presents.
A
Title 18 U.S. C. §1464 provides that “[w]hoever utters
any obscene, indecent, or profane language by means of
radio communication shall be fined . . . or imprisoned not
more than two years, or both.” The Federal Communi­
cations Commission (Commission) has been instructed by
Congress to enforce §1464 between the hours of 6 a.m.
and 10 p.m., see Public Telecommunications Act of 1992,
§15(a), 106 Stat. 954, note following 47 U.S. C. §303,
p. 113 (Broadcasting of Indecent Programming). And the
Commission has applied its regulations to radio and tele­
vision broadcasters alike, see Fox I, supra, at 505–506;
see also 47 CFR §73.3999 (2010) (Commission regulation
prohibiting the broadcast of any obscene material or any
indecent material between 6 a.m. and 10 p.m.). Although
the Commission has had the authority to regulate inde­
cent broadcasts under §1464 since 1948 (and its prede­
cessor commission, the Federal Radio Commission, since
1927), it did not begin to enforce §1464 until the 1970’s.
See Campbell, Pacifica Reconsidered: Implications for the
Current Controversy over Broadcast Indecency, 63 Fed.
Com. L. J. 195, 198 (2010).
This Court first reviewed the Commission’s indecency
policy in FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
In Pacifica, the Commission determined that George
Carlin’s “Filthy Words” monologue was indecent. It con­
tained “ ‘language that describes, in terms patently offen­
sive as measured by contemporary community standards
for the broadcast medium, sexual or excretory activities
and organs, at times of the day when there is a reasonable
risk that children may be in the audience.’ ” Id., at 732
(quoting 56 F. C. C. 2d 94, 98 (1975)). This Court upheld
Cite as: 567 U. S. ____ (2012) 3
Opinion of the Court
the Commission’s ruling. The broadcaster’s statutory
challenge was rejected. The Court held the Commission
was not engaged in impermissible censorship within the
meaning of 47 U.S. C. §326 (1976 ed.), see 438 U. S., at
735–739, and that §1464’s definition of indecency was not
confined to speech with an appeal to the prurient interest,
see id., at 738–741. Finding no First Amendment viola­
tion, the decision explained the constitutional standard
under which regulations of broadcasters are assessed. It
observed that “broadcast media have established a uniquely
pervasive presence in the lives of all Americans,” id., at
748, and that “broadcasting is uniquely accessible to chil­
dren, even those too young to read,” id., at 749. In light
of these considerations, “broadcasting . . . has received the
most limited First Amendment protection.” Id., at 748.
Under this standard the Commission’s order passed con­
stitutional scrutiny. The Court did note the narrowness of
its holding, explaining that it was not deciding whether
“an occasional expletive . . . would justify any sanction.”
Id., at 750; see also id., at 760–761 (Powell, J., concur-
ring in part and concurring in judgment) (“[C]ertainly the
Court’s holding . . . does not speak to cases involving the
isolated use of a potentially offensive word in the course of
a radio broadcast, as distinguished from the verbal shock
treatment administered by respondent here”).
From 1978 to 1987, the Commission did not go beyond
the narrow circumstances of Pacifica and brought no
indecency enforcement actions. See In re Infinity Broad-
casting Corp., 3 FCC Rcd. 930 (1987); see also In re Appli-
cation of WGBH Educ. Foundation, 69 F. C. C. 2d 1250,
1254 (1978) (Commission declaring it “intend[s] strictly to
observe the narrowness of the Pacifica holding”). Recog­
nizing that Pacifica provided “no general prerogative to
intervene in any case where words similar or identical to
those in Pacifica are broadcast over a licensed radio or
television station,” the Commission distinguished between
4 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
the “repetitive occurrence of the ‘indecent’ words” (such as
in the Carlin monologue) and an “isolated” or “occasional”
expletive, that would not necessarily be actionable. 69
F. C. C. 2d, at 1254.
In 1987, the Commission determined it was applying the
Pacifica standard in too narrow a way. It stated that in
later cases its definition of indecent language would “ap­
propriately includ[e] a broader range of material than the
seven specific words at issue in [the Carlin monologue].”
In re Pacifica Foundation Inc., 2 FCC Rcd. 2698, 2699.
Thus, the Commission indicated it would use the “generic
definition of indecency” articulated in its 1975 Pacifica
order, Infinity Order, 3 FCC Rcd., at 930, and assess the
full context of allegedly indecent broadcasts rather than
limiting its regulation to a “comprehensive index . . . of
indecent words or pictorial depictions,” id., at 932.
Even under this context based approach, the Commis­
sion continued to note the important difference between
isolated and repeated broadcasts of indecent material. See
ibid. (considering variables in determining whether mate­
rial is patently offensive including “whether allegedly
offensive material is isolated or fleeting”). In the context
of expletives, the Commission determined “deliberate and
repetitive use in a patently offensive manner is a requisite
to a finding of indecency.” Pacifica Order, 2 FCC Rcd., at
2699. For speech “involving the description or depiction
of sexual or excretory functions . . . [t]he mere fact that
specific words or phrases are not repeated does not man­
date a finding that material that is otherwise patently
offensive . . . is not indecent.” Ibid.
In 2001, the Commission issued a policy statement
intended “to provide guidance to the broadcast industry
regarding [its] caselaw interpreting 18 U.S. C. §1464 and
[its] enforcement policies with respect to broadcast inde­
cency.” In re Industry Guidance on Commission’s Case
Law Interpreting 18 U.S. C. §1464 and Enforcement
Cite as: 567 U. S. ____ (2012) 5
Opinion of the Court
Policies Regarding Broadcast Indecency, 16 FCC Rcd.
7999. In that document the Commission restated that for
material to be indecent it must depict sexual or excretory
organs or activities and be patently offensive as measured
by contemporary community standards for the broadcast
medium. Id., at 8002. Describing the framework of what
it considered patently offensive, the Commission explained
that three factors had proved significant:
“(1) [T]he explicitness or graphic nature of the de­
scription or depiction of sexual or excretory organs or
activities; (2) whether the material dwells on or re­
peats at length descriptions of sexual or excretory or­
gans or activities; (3) whether the material appears to
pander or is used to titillate, or whether the material
appears to have been presented for its shock value.”
Id., at 8003 (emphasis deleted).
As regards the second of these factors, the Commission
explained that “[r]epetition of and persistent focus on
sexual or excretory material have been cited consistently
as factors that exacerbate the potential offensiveness of
broadcasts. In contrast, where sexual or excretory refer­
ences have been made once or have been passing or fleet­
ing in nature, this characteristic has tended to weigh
against a finding of indecency.” Id., at 8008. The Com­
mission then gave examples of material that was not
found indecent because it was fleeting and isolated, id., at
8008–8009 (citing, e.g., L. M. Communications of South
Carolina, Inc. (WYBB(FM)), 7 FCC Rcd. 1595 (MMB 1992)
(finding “a fleeting and isolated utterance” in the context
of live and spontaneous programming not actionable)), and
contrasted it with fleeting references that were found
patently offensive in light of other factors, 16 FCC Rcd., at
8009 (citing, e.g., Tempe Radio, Inc. (KUPD–FM), 12 FCC
Rcd. 21828 (MMB 1997) (finding fleeting language that
clearly refers to sexual activity with a child to be patently
6 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
offensive)).
B
It was against this regulatory background that the three
incidents of alleged indecency at issue here took place.
First, in the 2002 Billboard Music Awards, broadcast by
respondent Fox Television Stations, Inc., the singer Cher
exclaimed during an unscripted acceptance speech: “I’ve
also had my critics for the last 40 years saying that I was
on my way out every year. Right. So f *** ‘em.” 613 F. 3d,
at 323. Second, Fox broadcast the Billboard Music Awards
again in 2003. There, a person named Nicole Richie
made the following unscripted remark while presenting an
award: “Have you ever tried to get cow s*** out of a Prada
purse? It’s not so f ***ing simple.” Ibid. The third in­
cident involved an episode of NYPD Blue, a regular tele­
vision show broadcast by respondent ABC Television
Network. The episode broadcast on February 25, 2003,
showed the nude buttocks of an adult female character for
approximately seven seconds and for a moment the side
of her breast. During the scene, in which the character
was preparing to take a shower, a child portraying her boy­
friend’s son entered the bathroom. A moment of awk­
wardness followed. 404 Fed. Appx. 530, 533–534 (CA2
2011). The Commission received indecency complaints
about all three broadcasts. See Fox I, 556 U. S., at 510;
404 Fed. Appx., at 534.
After these incidents, but before the Commission issued
Notices of Apparent Liability to Fox and ABC, the Com­
mission issued a decision sanctioning NBC for a comment
made by the singer Bono during the 2003 Golden Globe
Awards. Upon winning the award for Best Original Song,
Bono exclaimed: “ ‘This is really, really, f ***ing brilliant.
Really, really great.’ ” In re Complaints Against Various
Broadcast Licensees Regarding Their Airing of the “Golden
Globe Awards” Program, 19 FCC Rcd. 4975, 4976, n. 4
Cite as: 567 U. S. ____ (2012) 7
Opinion of the Court
(2004) (Golden Globes Order). Reversing a decision by its
enforcement bureau, the Commission found the use of
the F-word actionably indecent. Id., at 4975–4976. The
Commission held that the word was “one of the most vul­
gar, graphic and explicit descriptions of sexual activity
in the English language,” and thus found “any use of that
word or a variation, in any context, inherently has a sex­
ual connotation.” Id., at 4978–4979. Turning to the iso­
lated nature of the expletive, the Commission reversed prior
rulings that had found fleeting expletives not indecent.
The Commission held “the mere fact that specific words or
phrases are not sustained or repeated does not mandate a
finding that material that is otherwise patently offensive
to the broadcast medium is not indecent.” Id., at 4980; see
also id., at 4982 (“Just as the Court [in Pacifica] held
that . . . the George Carlin routine ‘could have enlarged
a child’s vocabulary in an instant,’ we believe that even
isolated broadcasts of the ‘F-Word’ in situations such as
that here could do so as well”).
C
Even though the incidents at issue in these cases took
place before the Golden Globes Order, the Commission
applied its new policy regarding fleeting expletives and
fleeting nudity. It found the broadcasts by respondents
Fox and ABC to be in violation of this standard.
1
As to Fox, the Commission found the two Billboard
Awards broadcasts indecent in In re Complaints Regard-
ing Various Television Broadcasts Between February 2,
2002, and March 8, 2005, 21 FCC Rcd. 2664 (2006). Nu­
merous parties petitioned for a review of the order in the
United States Court of Appeals for the Second Circuit.
The Court of Appeals granted the Commission’s request
for a voluntary remand so that it could respond to the
8 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
parties’ objections. Fox Television Stations, Inc. v. FCC,
489 F.3d 444, 453 (2007). In its remand order, the Com­
mission applied its tripartite definition of patently offen­
sive material from its 2001 Order and found that both
broadcasts fell well within its scope. See In re Complaints
Regarding Various Television Broadcasts Between Febru-
ary 2, 2002, and March 8, 2005, 21 FCC Rcd. 13299 (2006)
(Remand Order); see also Fox I, supra, at 511–513 (dis­
cussing in detail the Commission’s findings). As pertains
to the constitutional issue in these cases, the Commission
noted that under the policy clarified in the Golden Globes
Order, “categorically requiring repeated use of expletives
in order to find material indecent is inconsistent with
our general approach to indecency enforcement.” Remand
Order, 21 FCC Rcd., at 13308; see also id., at 13325
(“[U]nder our Golden Globe precedent, the fact that Cher
used the ‘F-word’ once does not remove her comment from
the realm of actionable indecency”). Though the Commis­
sion deemed Fox should have known Nicole Richie’s com­
ments were actionably indecent even prior to the Golden
Globes Order, 21 FCC Rcd., at 13307, it declined to pro­
pose a forfeiture in light of the limited nature of the Sec­
ond Circuit’s remand. Id., at 13321. The Commission
acknowledged that “it was not apparent that Fox could be
penalized for Cher’s comment at the time it was broad­
cast.” And so, as in the Golden Globes case it imposed no
penalty for that broadcast. Id., at 13324, 13326.
Fox and various intervenors returned to the United
States Court of Appeals for the Second Circuit, raising ad­
ministrative, statutory, and constitutional challenges to
the Commission’s indecency regulations. See Fox Televi-
sion Stations, Inc. v. FCC, 489 F.3d 444. In a 2-to-1 deci­
sion, with Judge Leval dissenting, the Court of Appeals
found the Remand Order arbitrary and capricious because
“the FCC has made a 180-degree turn regarding its treat­
ment of ‘fleeting expletives’ without providing a reasoned
Cite as: 567 U. S. ____ (2012) 9
Opinion of the Court
explanation justifying the about-face.” 489 F. 3d, at 455.
While noting its skepticism as to whether the Commis­
sion’s fleeting expletive regime “would pass constitutional
muster,” the Court of Appeals found it unnecessary to ad­
dress the issue. Id., at 462.
The case came here on certiorari. Citing the Adminis­
trative Procedure Act, 5 U.S. C. §551 et seq., this Court
noted that the Judiciary may set aside agency action that
is arbitrary or capricious. In the context of a change in
policy (such as the Commission’s determination that fleet­
ing expletives could be indecent), the decision held an
agency, in the ordinary course, should acknowledge that it
is in fact changing its position and “show that there are
good reasons for the new policy.” Fox I, 553 U. S., at 515.
There is no need, however, for an agency to provide de­
tailed justifications for every change or to show that the
reasons for the new policy are better than the reasons for
the old one. Ibid.
Judged under this standard, the Court in Fox I found
the Commission’s new indecency enforcement policy nei­
ther arbitrary nor capricious. Id., at 517. The Court noted
the Commission had acknowledged breaking new ground
in ruling that fleeting and nonliteral expletives could be
indecent under the controlling standards; the Court con­
cluded the agency’s reasons for expanding the scope of its
enforcement activity were rational. Ibid. Not only was it
“certainly reasonable to determine that it made no sense
to distinguish between literal and nonliteral uses of offen­
sive words,” ibid., but the Court agreed that the Commis­
sion’s decision to “look at the patent offensiveness of even
isolated uses of sexual and excretory words fits with the
context-based approach [approved] . . . in Pacifica.” Ibid.
Given that “[e]ven isolated utterances can . . . constitute
harmful ‘first blow[s]’ to children,” the Court held that
the Commission could “decide it needed to step away from
its old regime where nonrepetitive use of an expletive
10 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
was per se nonactionable.” Id., at 518. Having found the
agency’s action to be neither arbitrary nor capricious, the
Court remanded for the Court of Appeals to address re­
spondents’ First Amendment challenges. Id., at 529–530.
On remand from Fox I, the Court of Appeals held the
Commission’s indecency policy unconstitutionally vague
and invalidated it in its entirety. 613 F. 3d, at 327.
The Court of Appeals found the policy, as expressed in
the 2001 Guidance and subsequent Commission decisions,
failed to give broadcasters sufficient notice of what would
be considered indecent. Surveying a number of Commis­
sion adjudications, the court found the Commission was
inconsistent as to which words it deemed patently offen­
sive. See id., at 330. It also determined that the Com­
mission’s presumptive prohibition on the F-word and the
S-word was plagued by vagueness because the Commission
had on occasion found the fleeting use of those words not
indecent provided they occurred during a bona fide news
interview or were “demonstrably essential to the nature
of an artistic or educational work.” Id., at 331 (internal
quotation marks omitted). The Commission’s application
of these exceptions, according to the Court of Appeals,
left broadcasters guessing whether an expletive would be
deemed artistically integral to a program or whether a
particular broadcast would be considered a bona fide news
interview. The Court of Appeals found the vagueness in­
herent in the policy had forced broadcasters to “choose
between not airing . . . controversial programs [or] risking
massive fines or possibly even loss of their licenses.” Id.,
at 334. And the court found that there was “ample evi­
dence in the record” that this harsh choice had led to a
chill of protected speech. Ibid.
2
The procedural history regarding ABC is more brief.
On February 19, 2008, the Commission issued a forfeiture
Cite as: 567 U. S. ____ (2012) 11
Opinion of the Court
order finding the display of the woman’s nude buttocks
in NYPD Blue was actionably indecent. See In re Com-
plaints Against Various Television Licensees Concerning
Their February 24, 2003 Broadcast of the Program “NYPD
Blue”, 23 FCC Rcd. 3147 (2008). The Commission deter­
mined that, regardless of medical definitions, displays of
buttocks fell within the category of displays of sexual or
excretory organs because the depiction was “widely associ­
ated with sexual arousal and closely associated by most
people with excretory activities.” Id., at 3150. The scene
was deemed patently offensive as measured by contempo­
rary community standards, ibid.; and the Commission
determined that “[t]he female actor’s nudity is presented
in a manner that clearly panders to and titillates the
audience,” id., at 3153. Unlike in the Fox case, the Com­
mission imposed a forfeiture of $27,500 on each of the 45
ABC-affiliated stations that aired the indecent episode. In
a summary order the United States Court of Appeals for
the Second Circuit vacated the forfeiture order, determin­
ing that it was bound by its Fox decision striking down the
entirety of the Commission’s indecency policy. See 404
Fed. Appx., at 533.
The Government sought review of both judgments, see
Brief for Petitioners 1, and this Court granted certiorari,
564 U. S. ____ (2011). These are the cases before us.
II
A fundamental principle in our legal system is that laws
which regulate persons or entities must give fair notice of
conduct that is forbidden or required. See Connally v.
General Constr. Co., 269 U.S. 385, 391 (1926) (“[A] statute
which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its appli­
cation, violates the first essential of due process of law”);
Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972)
12 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
(“Living under a rule of law entails various suppositions,
one of which is that ‘[all persons] are entitled to be in­
formed as to what the State commands or forbids’ ” (quot­
ing Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939)
(alteration in original))). This requirement of clarity in
regulation is essential to the protections provided by the
Due Process Clause of the Fifth Amendment. See United
States v. Williams, 553 U.S. 285, 304 (2008). It requires
the invalidation of laws that are impermissibly vague. 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 en­
forcement.” Ibid. As this Court has explained, a regula­
tion is not vague because it may at times be difficult to
prove an incriminating fact but rather because it is un­
clear as to what fact must be proved. See id., at 306.
Even when speech is not at issue, the void for vagueness
doctrine addresses at least two connected but discrete due
process concerns: first, that regulated parties should know
what is required of them so they may act accordingly;
second, precision and guidance are necessary so that those
enforcing the law do not act in an arbitrary or discrimina­
tory way. See Grayned v. City of Rockford, 408 U.S. 104,
108–109 (1972). When speech is involved, rigorous adher­
ence to those requirements is necessary to ensure that
ambiguity does not chill protected speech.
These concerns are implicated here because, at the out­
set, the broadcasters claim they did not have, and do
not have, sufficient notice of what is proscribed. And
leaving aside any concerns about facial invalidity, they
contend that the lengthy procedural history set forth
above shows that the broadcasters did not have fair notice
of what was forbidden. Under the 2001 Guidelines in
force when the broadcasts occurred, a key consideration
Cite as: 567 U. S. ____ (2012) 13
Opinion of the Court
was “ ‘whether the material dwell[ed] on or repeat[ed] at
length’ ” the offending description or depiction. 613 F. 3d,
at 322. In the 2004 Golden Globes Order, issued after the
broadcasts, the Commission changed course and held that
fleeting expletives could be a statutory violation. Fox I,
556 U. S., at 512. In the challenged orders now under
review the Commission applied the new principle promul­
gated in the Golden Globes Order and determined fleeting
expletives and a brief moment of indecency were action­
ably indecent. This regulatory history, however, makes it
apparent that the Commission policy in place at the time
of the broadcasts gave no notice to Fox or ABC that a
fleeting expletive or a brief shot of nudity could be action­
ably indecent; yet Fox and ABC were found to be in viola­
tion. The Commission’s lack of notice to Fox and ABC that
its interpretation had changed so the fleeting moments of
indecency contained in their broadcasts were a violation of
§1464 as interpreted and enforced by the agency “fail[ed]
to provide a person of ordinary intelligence fair notice of
what is prohibited.” Williams, supra, at 304. This would
be true with respect to a regulatory change this abrupt on
any subject, but it is surely the case when applied to the
regulations in question, regulations that touch upon “sen­
sitive areas of basic First Amendment freedoms,” Baggett
v. Bullitt, 377 U.S. 360, 372 (1964); see also Reno v. Amer-
ican Civil Liberties Union, 521 U.S. 844, 870–871 (1997)
(“The vagueness of [a content-based regulation of speech]
raises special First Amendment concerns because of its ob­
vious chilling effect”).
The Government raises two arguments in response, but
neither is persuasive. As for the two fleeting expletives,
the Government concedes that “Fox did not have reason­
able notice at the time of the broadcasts that the Com­
mission would consider non-repeated expletives indecent.”
Brief for Petitioners 28, n. 3. The Government argues,
nonetheless, that Fox “cannot establish unconstitutional
14 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
vagueness on that basis . . . because the Commission did
not impose a sanction where Fox lacked such notice.” Ibid.
As the Court observed when the case was here three
Terms ago, it is true that the Commission declined to
impose any forfeiture on Fox, see 556 U. S., at 513, and in
its order the Commission claimed that it would not con­
sider the indecent broadcasts either when considering
whether to renew stations’ licenses or “in any other con­
text,” 21 FCC Rcd., at 13321, 13326. This “policy of for­
bearance,” as the Government calls it, does not suffice to
make the issue moot. Brief for Petitioners 31. Though the
Commission claims it will not consider the prior indecent
broadcasts “in any context,” it has the statutory power
to take into account “any history of prior offenses” when
setting the level of a forfeiture penalty. See 47 U.S. C.
§503(b)(2)(E). Just as in the First Amendment context,
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. ___, ___ (2010)
(slip op., at 18). Given that the Commission found it
was “not inequitable to hold Fox responsible for [the 2003
broadcast],” 21 FCC Rcd., at 13314, and that it has the
statutory authority to use its finding to increase any fu­
ture penalties, the Government’s assurance it will elect
not to do so is insufficient to remedy the constitutional
violation.
In addition, when combined with the legal consequence
described above, reputational injury provides further rea­
son for granting relief to Fox. Cf. Paul v. Davis, 424
U.S. 693, 708–709 (1976) (explaining that an “alteration
of legal status . . . combined with the injury resulting
from the defamation” justifies the invocation of procedural
safeguards). As respondent CBS points out, findings of
wrongdoing can result in harm to a broadcaster’s “reputa­
tion with viewers and advertisers.” Brief for Respondent
CBS Television Network Affiliates Assn. et al. 17. This
Cite as: 567 U. S. ____ (2012) 15
Opinion of the Court
observation is hardly surprising given that the challenged
orders, which are contained in the permanent Commission
record, describe in strongly disapproving terms the inde­
cent material broadcast by Fox, see, e.g., 21 FCC Rcd., at
13310–13311, ¶30 (noting the “explicit, graphic, vulgar,
and shocking nature of Ms. Richie’s comments”), and Fox’s
efforts to protect children from being exposed to it, see id.,
at 13311, ¶33 (finding Fox had failed to exercise “ ‘rea­
sonable judgment, responsibility, and sensitivity to the
public’s needs and tastes to avoid [a] patently offensive
broadcas[t]’ ”). Commission sanctions on broadcasters for
indecent material are widely publicized. See, e.g., F. C. C.
Fines Fox, N. Y. Times, Feb. 26, 2008, p. E2; F. C. C. Plans
Record Fine for CBS, Washington Post, Sept. 24, 2004,
p. E1. The challenged orders could have an adverse impact
on Fox’s reputation that audiences and advertisers alike
are entitled to take into account.
With respect to ABC, the Government with good reason
does not argue no sanction was imposed. The fine against
ABC and its network affiliates for the seven seconds of
nudity was nearly $1.24 million. See Brief for Respondent
ABC, Inc., et al. 7 (hereinafter ABC Brief). The Govern­
ment argues instead that ABC had notice that the scene in
NYPD Blue would be considered indecent in light of a
1960 decision where the Commission declared that the
“televising of nudes might well raise a serious question of
programming contrary to 18 U.S. C. §1464.” Brief for
Petitioners 32 (quoting Enbanc Programming Inquiry, 44
FCC 2303, 2307 (internal quotation marks omitted)). This
argument does not prevail. An isolated and ambiguous
statement from a 1960 Commission decision does not
suffice for the fair notice required when the Government
intends to impose over a $1 million fine for allegedly im­
permissible speech. The Commission, furthermore, had
released decisions before sanctioning ABC that declined to
find isolated and brief moments of nudity actionably inde­
16 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
cent. See, e.g., In re Application of WGBH, 69 F. C. C.
2d, at 1251, 1255 (declining to find broadcasts contain-
ing nudity to be indecent and emphasizing the difference
between repeated and isolated expletives); In re WPBN/
WTOM License Subsidiary, Inc., 15 FCC Rcd. 1838,
1840 (2000) (finding full frontal nudity in Schind-
ler’s List not indecent). This is not to say, of course, that
a graphic scene from Schindler’s List involving nude
concentration camp prisoners is the same as the shower
scene from NYPD Blue. It does show, however, that the
Government can point to nothing that would have given
ABC affirmative notice that its broadcast would be consid­
ered actionably indecent. It is likewise not sufficient for
the Commission to assert, as it did in its order, that
though “the depiction [of nudity] here is not as lengthy or
repeated” as in some cases, the shower scene nonetheless
“does contain more shots or lengthier depictions of nudity”
than in other broadcasts found not indecent. 23 FCC Rcd.,
at 3153. This broad language fails to demonstrate that
ABC had fair notice that its broadcast could be found
indecent. In fact, a Commission ruling prior to the airing
of the NYPD Blue episode had deemed 30 seconds of nude
buttocks “very brief ” and not actionably indecent in the
context of the broadcast. See Letter from Norman Gold­
stein to David Molina, FCC File No. 97110028 (May 26,
1999), in App. to Brief for Respondent ABC Television
Affiliates Assn. et al. 1a; see also Letter from Edythe Wise
to Susan Cavin, FCC File No. 91100738 (Aug. 13, 1992),
id., at 18a, 19a. In light of this record of 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.
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.
Cite as: 567 U. S. ____ (2012) 17
Opinion of the Court
Therefore, the Commission’s standards as applied to these
broadcasts were vague, and the Commission’s orders must
be set aside.
III
It is necessary to make three observations about the
scope of this decision. First, because the Court resolves
these cases on fair notice grounds under the Due Process
Clause, it need not address the First Amendment implica­
tions of the Commission’s indecency policy. It is argued
that this Court’s ruling in Pacifica (and the less rigorous
standard of scrutiny it provided for the regulation of
broadcasters, see 438 U.S. 726) should be overruled be­
cause the rationale of that case has been overtaken by
technological change and the wide availability of multiple
other choices for listeners and viewers. See, e.g., ABC
Brief 48–57; Brief for Respondent Fox Television Stations,
Inc., et al. 15–26. The Government for its part maintains
that when it licenses a conventional broadcast spectrum,
the public may assume that the Government has its own
interest in setting certain standards. See Brief for Peti­
tioners 40–53. These arguments need not be addressed
here. In light of the Court’s holding that the Commission’s
policy failed to provide fair notice it is unnecessary to
reconsider Pacifica at this time.
This leads to a second observation. Here, the Court
rules that Fox and ABC lacked notice at the time of their
broadcasts that the material they were broadcasting could
be found actionably indecent under then-existing policies.
Given this disposition, it is unnecessary for the Court
to address the constitutionality of the current indecency
policy as expressed in the Golden Globes Order and sub­
sequent adjudications. The Court adheres to its normal
practice of declining to decide cases not before it. See,
e.g., Sweatt v. Painter, 339 U.S. 629, 631 (1950) (“Broader
issues have been urged for our consideration, but we
18 FCC v. FOX TELEVISION STATIONS, INC.
Opinion of the Court
adhere to the principle of deciding constitutional ques­
tions only in the context of the particular case before the
Court”).
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
it leaves the courts free to review the current policy or any
modified policy in light of its content and application.
* * *
The judgments of the United States Court of Appeals
for the Second Circuit are vacated, and the cases are re­
manded for further proceedings consistent with the prin­
ciples set forth in this opinion.
It is so ordered.
JUSTICE SOTOMAYOR took no part in the consideration
or decision of these cases.
Cite as: 567 U. S. ____ (2012) 1
GINSBURG, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1293
_________________
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
PETITIONERS v. FOX TELEVISION STATIONS, INC.,
ET AL.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
PETITIONERS v. ABC, INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 21, 2012]
JUSTICE GINSBURG, concurring in the judgment.
In my view, the Court’s decision in FCC v. Pacifica
Foundation, 438 U.S. 726 (1978), was wrong when it
issued. Time, technological advances, and the Commis-
sion’s untenable rulings in the cases now before the Court
show why Pacifica bears reconsideration. Cf. FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 532–535 (2009)
(THOMAS, J., concurring).