Fox Television Stations, Inc. v. FCC

06-1760-ag(L), 06-2750-ag (Con.), 06-5358-ag (Con.)
Fox Television Stations, Inc. v. FCC
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________________________
August Term, 2009
(Argued: January 13, 2010, Decided: July 13, 2010)
Docket Nos. 06-1760-ag, 06-2750-ag, 06-5358-ag
_______________________________
FOX TELEVISION STATIONS, INC., CBS BROADCASTING INC., WLS TELEVISION,
INC., KTRK TELEVISION, INC., KMBC HEARST-ARGYLE TELEVISION, INC., ABC
INC.,
Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION, UNITED STATES OF AMERICA,
Respondents,
NBC UNIVERSAL, INC., NBC TELEMUNDO LICENSE CO., NBC TELEVISION
AFFILIATES, FBC TELEVISION AFFILIATES ASSOCIATION, CBS TELEVISION
NETWORK AFFILIATES, CENTER FOR THE CREATIVE COMMUNITY, INC., DOING
BUSINESS AS CENTER FOR CREATIVE VOICES IN MEDIA, INC., ABC TELEVISION
AFFILIATES ASSOCIATION,
Intervenors.
_______________________________
LEVAL, POOLER, and HALL, Circuit Judges.
_______________________________
This petition for review comes before us on remand from the Supreme Court. Previously,
we held, with Judge Leval in dissent, that the indecency policy of the Federal Communications
Commission (“FCC”) was arbitrary and capricious under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 706(2)(A). See Fox Television Stations, Inc. v. FCC, 489 F.3d 444, 462
(2d Cir. 2007). The Supreme Court reversed, upholding the policy under the APA and
remanding for consideration of petitioners’ constitutional arguments. See Fox Television
Stations, Inc. v. FCC, 129 S. Ct. 1800, 1819 (2009) (Scalia, J.). We now hold that the FCC’s
policy violates the First Amendment because it is unconstitutionally vague, creating a chilling
effect that goes far beyond the fleeting expletives at issue here. Thus, we grant the petition for
review and vacate the FCC’s order and the indecency policy underlying it.
CARTER PHILLIPS, Sidley Austin LLP, Washington, DC
(R. Clark Wadlow, Jennifer Tatel, David S. Petron, Sidley
Austin LLP, Washington, DC; Ellen S. Agress, Maureen A.
O’Connell, Fox Television Stations, Inc., New York, NY,
on the brief), for petitioner Fox Television Stations, Inc.
MIGUEL ESTRADA, Gibson, Dunn & Crutcher LLP,
Washington, D.C., (Susan Weiner, NBC Universal, Inc., on
the brief) for intervenors NBC Universal Inc. and NBC
Telemundo License Co.
JACOB LEWIS, Associate General Counsel, for Austin C.
Schlick, General Counsel, Federal Communications
Commission, Washington, D.C. (Joseph R. Palmore,
Deputy General Counsel, Federal Communications
Commission, Washington, DC; Tony West, Assistant
Attorney General, Thomas M. Bondy, Anne Murphy, Civil
Division, U.S. Department of Justice, Washington, DC, on
the brief), for respondents.
Robert Corn-Revere, Ronald G. London, Amber L.
Husbands, Davis Wright Tremaine LLP, Washington, DC;
Jonathan H. Anschell, Susanna M. Lowy, CBS
Broadcasting Inc., New York, NY, for petitioner CBS
Broadcasting Inc.
Seth P. Waxman, Wilmer Cutler Pickering Hale and Dorr
LLP, Washington, DC; John W. Zucker, ABC, Inc., New
York, NY, for petitioners ABC, Inc., WLS Television, Inc.,
and KTRK Television, Inc.
Wade H. Hargrove, Mark J. Prak, David Kushner, Julia
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Ambrose, Brooks, Pierce, McLendon, Humphrey &
Leonard, LLP, Raleigh, NC, for intervenor ABC Television
Affiliates Association.
Andrew Jay Schwartzman, Parul P. Desai, Matthew Wood,
Media Access Project, Washington, DC, for intervenors
Center for Creative Voices and Future of Music Coalition.
Michael R. Patrick, Renzulli Law Firm, White Plains, NY;
Robert M. O’Neil, J. Joshua Wheeler, Eisha Jain, The
Thomas Jefferson Center for the Protection of Free
Expression, for amici curiae The Thomas Jefferson Center
for the Protection of Free Expression and The Media
Institute.
Nancy Winkelman, Timothy K. Lewis, Carl A. Solano,
Mark Fowler, Jerald Fritz, Henry Geller, Newton N.
Minow, James H. Quello, Glen O. Robinson, Kenneth G.
Robinson, Jr., Schnader Harrrison Segal & Lewis LLP,
Philadelphia, PA, for amici curiae former FCC
Commissioners and Officials.
Christopher Hansen, Benjamin Sahl, American Civil
Liberties Union Foundation, New York, NY, for amici
curiae American Civil Liberties Union, New York Civil
Liberties Union, American Booksellers Foundation for Free
Expression, American Federation of Television and Radio
Artists, Directors Guild of America, First Amendment
Project, Minnesota Public Radio/American Public Media,
National Alliance for Media Arts and Culture, the National
Coalition Against Censorship, National Federation of
Community Broadcasters, PEN American Center, Screen
Actors Guild, Washington Area Lawyers for the Arts,
Woodhull Freedom Foundation, Writers Guild of America,
West, Writers Guild of America, East.
Steven H. Aden, Patrick A. Trueman, Alliance Defense
Fund, Washington, DC; Joel B. Campbell, Law Offices of
Richard J. Yrulegui, Fresno, CA, for amici curiae Focus on
the Family and Family Research Council.
Robert W. Peters, Robin S. Whitehead, Morality in Media,
Inc., New York, NY, for amicus curiae Morality in Media,
Inc.
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Robert R. Sparks, Jr., Christopher T. Craig, Sparks &
Craig, LLP, McLean, VA, for amicus curiae Parents
Television Council.
Thomas B. North, St. Ignace, MI, for amicus curiae
Decency Enforcement Center for Television.
________________________________
POOLER, Circuit Judge:
This petition for review comes before us on remand from the Supreme Court. Previously
we held, with Judge Leval dissenting, that the indecency policy of the Federal Communications
Commission (“FCC” or “Commission”) was arbitrary and capricious under the Administrative
Procedure Act (“APA”), 5 U.S.C. § 706(2)(A). See Fox Television Stations, Inc. v. FCC, 489
F.3d 444, 462 (2d Cir. 2007). The Supreme Court reversed, upholding the policy under the APA
and remanding for consideration of petitioners’ constitutional arguments. See Fox Television
Stations, Inc. v. FCC, 129 S. Ct. 1800, 1819 (2009) (Scalia, J.). We now hold that the FCC’s
policy violates the First Amendment because it is unconstitutionally vague, creating a chilling
effect that goes far beyond the fleeting expletives at issue here. Thus, we grant the petition for
review and vacate the FCC’s order and the indecency policy underlying it.1
BACKGROUND
Section 1464 of Title 18 of United States Code provides that “[w]hoever utters any
obscene, indecent, or profane language by means of radio communication shall be fined under
this title or imprisoned not more than two years, or both.” In 1960, Congress authorized the FCC
to impose civil forfeitures for violations of Section 1464. See 47 U.S.C. § 503(b)(1)(D). It was
1
We address only the petition for review filed in Docket No. 06-5358, the other two
petitions having been previously dismissed as moot by this Court. Fox, 489 F.3d at 447 n.2.
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not until 1975, however, that the FCC first exercised its authority to regulate speech it deemed
indecent but not obscene. The speech at issue was comedian George Carlin’s “Filthy Words”
monologue, a 12-minute string of expletives broadcast on the radio at 2:00 in the afternoon.
The FCC brought forfeiture proceedings against the Pacifica Foundation, the broadcaster
that had aired the Carlin monologue. Citizen’s Complaint Against Pacifica Found. Station WBAI
(FM), N.Y, N.Y., 56 F.C.C.2d 94 (1975). In finding that Pacifica had violated Section 1464, the
Commission defined “indecent” speech as “language that describes, in terms patently offensive
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 ¶ 11. Pacifica petitioned for review to the D.C. Circuit, which
declared the FCC’s indecency regime invalid. See Pacifica Found. v. FCC, 556 F.2d 9 (D.C.
Cir. 1977). In finding the FCC’s order both vague and overbroad, the court pointed out that the
Commission’s definition of indecent speech would prohibit “the uncensored broadcast of many
of the great works of literature including Shakespearian plays and contemporary plays which
have won critical acclaim, the works of renowned classical and contemporary poets and writers,
and passages from the Bible.” Id. at 14. Such a result, the court concluded, amounted to
unconstitutional censorship. Id. at 18.
In a plurality opinion authored by Justice Stevens, the Supreme Court reversed. See FCC
v. Pacifica Found., 438 U.S. 726 (1978). The Court limited its review to the question of whether
the FCC could impose a civil forfeiture for the Carlin monologue and declined to address
Pacifica’s argument that the regulation was overbroad and would chill protected speech. Id. at
734-35, 743 (“Invalidating any rule on the basis of its hypothetical application to situations not
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before the Court is ‘strong medicine’ to be applied ‘sparingly and only as a last resort.’” (quoting
Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973))). In limiting its review, the Court stressed
the “specific factual context” of the Carlin monologue, id. at 742, focusing in particular on
Carlin’s deliberate and repetitive use of expletives to describe sexual and excretory activities.
The Court then went on to hold that the FCC could, at least in the situation before it,
restrict indecent speech in the broadcast context that did not meet the legal definition of
obscenity. Id. at 744 (concluding that “if the government has any such power [to restrict
indecent speech], this was an appropriate occasion for its exercise”). Resting on a nuisance
rationale, the Court first noted that “of all forms of communication, it is broadcasting that has
received the most limited First Amendment protection” because of its “uniquely pervasive
presence in the lives of all Americans.” Id. at 748. Moreover, the nature of broadcast television
– as opposed to printed materials – made it “uniquely accessible to children, even those too
young to read.” Id. at 749. The Court, however, “emphasize[d] the narrowness of [its] holding.”
Id. at 750. “[N]uisance may be merely a right thing in the wrong place, – like a pig in the parlor
instead of the barnyard. We simply hold that when the Commission finds that a pig has entered
the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.”
Id. at 750-51 (internal quotation marks omitted).
Justices Powell and Blackmun, who concurred in a separate opinion, also made clear that
the FCC’s regulatory authority was limited, stating that the Court’s holding did not give the FCC
“an unrestricted license to decide what speech, protected in other media, may be banned from the
airwaves in order to protect unwilling adults from momentary exposure to it in their homes.” Id.
at 759-60 (Powell, J., concurring). Nor, they explained, did the holding “speak to cases
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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.” Id. at 760-61.
Finally, they took the FCC at its word that it would “proceed cautiously,” which they reasoned
would minimize any chilling effect that might otherwise result. Id. at 761 n.4.
In the years after Pacifica, the FCC did indeed pursue a restrained enforcement policy,
taking the position that its enforcement powers were limited to the seven specific words in the
Carlin monologue. See In re Application of WGBH Educ. Found., 69 F.C.C.2d 1250, at ¶ 10
(1978); Infinity Broadcasting Corp., et al., 3 F.C.C. Rcd. 930, at ¶ 5 (1987) (“Infinity Order”).
No enforcement actions were brought between 1978 and 1987. Infinity Order, 3 F.C.C. Rcd.
930, at ¶ 4. Then, in 1987, the FCC abandoned its focus on specific words, concluding that
“although enforcement was clearly easier under the standard, it could lead to anomalous results
that could not be justified.” Id. at ¶ 5. The FCC reasoned that under the prior standard, patently
offensive material was permissible as long as it avoided certain words. This, the Commission
concluded, “made neither legal nor policy sense.” Id. The Commission instead decided to
utilize the definition it had used in Pacifica, adopting a contextual approach to indecent speech.
Despite its move to a more flexible standard, the FCC continued to exercise restraint. In
particular, it consistently held that a single, non-literal use of an expletive was not actionably
indecent. See, e.g., In re Application of WGBH Educ. Found, 69 F.C.C.2d 1250, at ¶ 10 n.6.
(noting that the single use of an expletive in a program that aired at 5:30pm “should not call for
us to act under the holding of Pacifica”); In re Regents of the Univ. of Cal., 2 F.C.C. Rcd. 2703,
at ¶ 3 (1987) (“Speech that is indecent must involve more than an isolated use of an offensive
word.”); L.M. Communications of S.C., Inc., 7 F.C.C. Rcd. 1595, 1595 (1992) (finding the
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single utterance of the F-word not indecent because it was a “fleeting and isolated utterance
which, within the context of live and spontaneous programming, does not warrant a Commission
sanction”); In re Application of Lincoln Dweller, Renewal of the License of Stations
KPRL(AM) and KDDB(FM), 8 F.C.C. Rcd. 2582, 2585 (1993) (The “use of a single expletive”
did not warrant further review “in light of the isolated and accidental nature of the broadcast.”).
In 2001, in an attempt to “provide guidance to the broadcast industry regarding . . . [its]
enforcement policies with respect to broadcast indecency,” the FCC issued a policy statement in
which it set forth its indecency standard in more detail. Industry Guidance on the Commission’s
Case Law Interpreting 18 U.S.C. § 1464, 16 F.C.C. Rcd 7999, at ¶ 1 (2001) (“Industry
Guidance”). In Industry Guidance, the FCC explained that an indecency finding involved the
following two determinations: (1) whether the material “describe[s] or depict[s] sexual or
excretory organs or activities”; and (2) whether the broadcast is “patently offensive as measured
by contemporary community standards for the broadcast medium.” Id. at ¶¶ 7-8 (emphasis
omitted). The FCC further explained that it considered the following three factors in
determining whether a broadcast is patently offensive: (1) “the explicitness or graphic nature of
the description or depiction”; (2) “whether the material dwells on or repeats at length” the
description or depiction; and (3) “whether the material appears to pander or is used to titillate, or
whether the materials appears to have been presented for its shock value.” Id. at ¶ 10 (emphasis
omitted). The Industry Guidance reiterated that under the second prong of the patently offensive
test, “fleeting and isolated” expletives were not actionably indecent. Id. at ¶ 18.
In 2004, however, the FCC’s policy on indecency changed. During the 2003 Golden
Globe Awards, U2 band member Bono exclaimed, upon receiving an award, “this is really,
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really, fucking brilliant. Really, really, great.” In re Complaints Against Various Broadcast
Licensees Regarding Their Airing of the “Golden Globe Awards” Program, 19 F.C.C. Rcd.
4975, at ¶ 3 n.4 (2004) (“Golden Globes Order”). In response to complaints filed after the
incident, the FCC declared, for the first time, that a single, nonliteral use of an expletive (a so-
called “fleeting expletive”) could be actionably indecent.2 Finding that “the ‘F-Word’ is one of
the most vulgar, graphic, and explicit descriptions of sexual activity in the English language,”
id. at ¶ 9, and therefore “inherently has a sexual connotation,” id. at ¶ 8, the FCC concluded that
the fleeting and isolated use of the word was irrelevant and overruled all prior decisions in which
fleeting use of an expletive was held per se not indecent, id. at ¶¶ 8-12. The FCC also found
that the broadcast was “profane” within the meaning of Section 1464, abandoning its previous
interpretation of the term to mean blasphemy. Id. at ¶¶ 13-14.
At the same time that the FCC expanded its enforcement efforts to include even fleeting
expletives, the FCC also began issuing record fines for indecency violations.3 While the
Commission had previously interpreted the maximum fines in the statute as applying on a per-
program basis, it began treating each licensee’s broadcast of the same program as a separate
2
The FCC’s increased enforcement efforts – as well as Congress’s decision to increase
the maximum fines – were in large part caused by the broadcast of the 2004 Super Bowl, during
which Justin Timberlake exposed Janet Jackson’s breast for a fraction of a second during their
halftime show, an event that came to be known as “Nipplegate.” Frank Ahrens, The Price for
On-Air Indecency Goes Up, Wash. Post (June 8, 2006), available at
http://www.washingtonpost.com/wp-dyn/content/article/2006/06/07/AR2006060700287.html.
The FCC imposed a $550,000 fine, which was overturned by the Third Circuit. See CBS Corp.
v. FCC, 535 F.3d 167, 209 (3d Cir. 2008). After the Supreme Court issued its decision in Fox, it
vacated the decision and remanded to the Third Circuit for reconsideration in light of Fox. See
FCC v. CBS Corp., 129 S. Ct. 2176 (2009). The Third Circuit has yet to issue a new decision.
3
In 2003, the FCC imposed $440,000 in fines. In 2004, it imposed a record $8 million
in fines. See Former FCC Commissioners Br. at 10 n.6.
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violation, thereby multiplying the maximum fine the FCC could order for each instance of
indecent speech. In addition, Congress amended Section 503(b)(2)(c)(ii) to increase the
maximum fine permitted by a factor of 10 – from $32,500 to $325,000– meaning that the fine for
a single expletive uttered during a broadcast could easily run into the tens of millions of dollars.
See 47 U.S.C. § 503(b)(2)(c)(iii).
NBC Universal, Inc. (“NBC”), along with numerous other parties, filed petitions for
reconsideration of the Golden Globes Order before the FCC, raising statutory and constitutional
challenges to the new policy. While the petitions for reconsideration were pending, the FCC
applied the Golden Globes Order policy in In Re Complaints Regarding Various Television
Broadcasts Between February 2, 2002 and March 8, 2005, 21 F.C.C. Rcd. 2664 (2006)
(“Omnibus Order”), which the Commission stated was intended to “provide substantial guidance
to broadcasters and the public” about what was considered indecent under the new policy. Id. at
¶ 2. In the Omnibus Order (which dealt with many more programs than are at issue in the
present case), the Commission found four programs – the 2002 Billboard Music Awards, the
2003 Billboard Music Awards, various episodes of ABC’s NYPD Blue, and CBS’s The Early
Show – indecent and profane under the Golden Globes standard.
All four programs involved what could be characterized as fleeting expletives. For
instance, during the 2002 Billboard Music Awards, Cher, in an unscripted moment from her
acceptance speech, stated: “People have been telling me I’m on the way out every year, right? So
fuck ‘em.” Id. at ¶ 101. Similarly, during the 2003 Billboard Music Awards, Nicole Ritchie –
on stage to present an award with Paris Hilton – made the following unscripted remark: “Have
you ever tried to get cow shit out of a Prada purse? It's not so fucking simple.” Id. at ¶ 112 n.164.
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Episodes of NYPD Blue were found indecent based on several instances of the word “bullshit,”
id. at ¶ 125, while the CBS’s The Early Show was found indecent on the basis of a guest’s use
of the word “bullshitter” to describe a fellow contestant on the reality TV show, Survivor:
Vanuatu, id. at ¶ 137.
In finding these programs indecent and profane, the FCC reaffirmed its decision in the
Golden Globes Order that any use of the word “fuck” was presumptively indecent and profane,
id. at ¶¶ 102, 107, further concluding that any use of the word “shit” was also presumptively
indecent and profane, id. at ¶¶ 138, 143. It also held that the four broadcasts in question were
“patently offensive” because the material was explicit, shocking, and gratuitous, notwithstanding
the fact that the expletives were fleeting and isolated. Id. ¶¶ 106, 120, 131, 141.
Fox Television Stations, Inc. (“Fox”), CBS Broadcasting Inc. (“CBS”), and ABC Inc.
(“ABC”), as well as several network affiliates, filed petitions for review of the Omnibus Order.4
The FCC moved for a voluntary remand, which we granted, so that it could have the opportunity
to address petitioners’ arguments and could ensure that all licensees had a full opportunity to be
heard before the FCC issued a final decision. After soliciting public comments, the FCC issued
a second order on November 6, 2006. See In re Complaints Regarding Various Television
Broadcasts Between February 2, 2002 and March 8, 2005, 21 F.C.C. Rcd. 13299 (2006)
(“Remand Order”). In the Remand Order, the FCC reaffirmed its finding that the 2002 and 2003
Billboard Music Awards were indecent and profane. However, the FCC reversed its finding
with respect to The Early Show and dismissed the complaint against NYPD Blue on procedural
4
ABC originally filed a petition for review in the D.C. Circuit, which was then
transferred to this Court and consolidated with the Fox/CBS petitions for review.
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grounds.5
In the Remand Order, the FCC rejected the petitioners’ argument that non-literal uses of
expletives were not indecent, reasoning that “any strict dichotomy between expletives and
descriptions or depictions of sexual or excretory functions is artificial and does not make sense
in light of the fact that an expletive’s power to offend derives from its sexual or excretory
meaning.” Id. at ¶ 23 (internal quotation marks omitted). However, the Commission did “not
take the position that any occurrence of an expletive is indecent or profane under its rules,”
allowing that expletives that were “integral” to an artistic work or occurring during a “bona fide
news interview” might not run afoul of the indecency standard. Id. at ¶ 70 (emphasis added). As
such, it reversed its previous decision concerning the CBS’s The Early Show because the
utterance of the word “bullshitter” took place during a bona fide news interview. The
Commission made clear, however, that “there is no outright news exemption from our indecency
rules.” Id. at ¶ 71.
Petitioners and intervenors,6 which collectively represented all the major broadcast
networks as well as local affiliates affected by the FCC’s indecency policy (hereinafter, the
“Networks”), returned to this Court for review of the Remand Order, making a variety of
administrative, statutory, and constitutional arguments. In a 2-1 decision (with Judge Leval in
5
The Commission dismissed the complaints against NYPD Blue because the only person
who complained of the material resided in the Eastern time zone, where NYPD Blue aired during
the “safe harbor” period after 10pm. Id. at ¶ 75.
6
Intervenors included NBC Universal, Inc., NBC Telemundo License Co., NBC
Television Affiliates, FBC Television Affiliates, CBS Television Networks Affiliation, and ABC
Television Affiliates Association. On remand from the Supreme Court, the Center for Creative
Voices and Future of Music Coalition, which represents the artistic community, filed a motion to
intervene, which we granted.
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dissent), we held that the FCC’s indecency policy was arbitrary and capricious under the APA.
Fox, 489 F.3d at 447. We reached this decision because we believed that the FCC had failed to
adequately explain why it had changed its nearly-30-year policy on fleeting expletives. Id. at
458. Moreover, we noted that the FCC’s justification for the policy – that children could be
harmed by hearing even one fleeting expletive (the so-called “first blow” theory) – bore “no
rational connection to the Commission’s actual policy,” because the FCC had not instituted a
blanket ban on expletives. Id.
Because we struck down the indecency policy on APA grounds, we declined to reach the
constitutional issues in the case. We noted, however, that we were “skeptical that the
Commission [could] provide a reasoned explanation for its ‘fleeting expletive’ regime that would
pass constitutional muster.” Id. at 462. We expressed sympathy for “the Networks’ contention
that the FCC’s indecency test [wa]s undefined, indiscernible, inconsistent, and consequently,
unconstitutionally vague.” Id. at 463. We were also troubled that the FCC’s policy appeared to
permit it to “sanction speech based on its subjective view of the merit of that speech.” Id. at 464.
However, because it was unnecessary for us to reach them, we left those issues for another day.
The FCC subsequently filed a writ of certiorari, which the Supreme Court granted.
In a 5-4 decision, the Supreme Court reversed our APA ruling, holding that the FCC’s
“fleeting expletive” policy was not arbitrary and capricious because “[t]he Commission could
reasonably conclude that the pervasiveness of foul language, and the coarsening of public
entertainment in other media such as cable, justify more stringent regulation of broadcast
programs so as to give conscientious parents a relatively safe haven for their children.” 129 S.
Ct. at 1819. However, the Court declined to address the Networks’ constitutional arguments,
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“see[ing] no reason to abandon our usual procedures in a rush to judgment without a lower court
opinion,” id., and remanded for us to consider them in the first instance. Thus, after further
briefing by the parties, intervenors, and amici, we now turn to the question that we deferred in
our previous decision – whether the FCC’s indecency policy violates the First Amendment.
DISCUSSION
I.
It is well-established that indecent speech is fully protected by the First Amendment.
Reno v. ACLU, 521 U.S. 844, 874-75 (1997) (“Where obscenity is not involved, . . . the fact that
protected speech may be offensive to some does not justify its suppression.” (quoting Carey v.
Population Servs. Int’l, 431 U.S. 678, 701 (1977))). In most contexts, the Supreme Court has
considered restrictions on indecent speech to be content-based restrictions subject to strict
scrutiny. See United States v. Playboy Entm't Group, 529 U.S. 803, 813 (2000). For instance, in
Reno v. ACLU, the Supreme Court struck down the Communications Decency Act of 1996,
finding that a provision criminalizing the knowing transmission of indecent speech through the
internet was unconstitutionally vague and not narrowly tailored. 521 U.S. at 882. In Playboy,
the Supreme Court confronted a provision of the Telecommunications Act of 1996 that
prohibited cable television operators from broadcasting sexual content during certain hours.
While recognizing that television “presents unique problems” not present in other mediums, the
Court held unequivocally that the restriction was subject to strict scrutiny, and struck it down
because scrambling technology provided a less restrictive means of protecting minors from
indecent content. 529 U.S. at 813, 827. Similarly, the Supreme Court in Sable Communications
of California, Inc. v. FCC declared unconstitutional a provision of the Communications Act that
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prohibited the transmission of indecent commercial telephone messages, so-called “dial-a-porn,”
finding that a total ban was not the least restrictive means available. 492 U.S. 115, 131 (1989).
Broadcast radio and television, however, have always occupied a unique position when it
comes to First Amendment protection. The categorization of broadcasting as different from all
other forms of communication pre-dates Pacifica. See, e.g., Red Lion Broad. Co. v. FCC, 395
U.S. 367, 386 (1969) (“Although broadcasting is clearly a medium affected by a First
Amendment interest, differences in the characteristics of new media justify differences in the
First Amendment standards applied to them.”(internal citation omitted)). And the Supreme
Court has continuously reaffirmed the distinction between broadcasting and other forms of
media since Pacifica. See Reno, 521 U.S. at 866-67; Sable, 492 U.S. at 127. However, it was in
Pacifica that the Supreme Court gave its fullest explanation for why restrictions on broadcast
speech were subject to a lower level of scrutiny, relying on the twin pillars of pervasiveness and
accessibility to children. 438 U.S. at 748-49. While Pacifica did not specify what level of
scrutiny applies to restrictions on broadcast speech, subsequent cases have applied something
akin to intermediate scrutiny. See FCC v. League of Women Voters, 468 U.S. 364, 380 (1984).
The Networks argue that the world has changed since Pacifica and the reasons underlying
the decision are no longer valid. Indeed, we face a media landscape that would have been almost
unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run
out of the Department of Defense with several hundred users. Not only did Youtube, Facebook,
and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this
environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in the
lives of all Americans.” Pacifica, 438 U.S. at 748.
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The same cannot be said today. The past thirty years has seen an explosion of media
sources, and broadcast television has become only one voice in the chorus. Cable television is
almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or
satellite service – and most viewers can alternate between broadcast and non-broadcast channels
with a click of their remote control. See In re Annual Assessment of the Status of Competition
in the Market for the Delivery of Video Programming, 24 FCC Rcd. 542, at ¶ 8 (2009). The
internet, too, has become omnipresent, offering access to everything from viral videos to feature
films and, yes, even broadcast television programs. See In Re Implementation of the Child Safe
Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming,
24 F.C.C. Rcd. 11413, at ¶ 126 (2009) (“CSVA Report”) (“The number of suppliers of online
video and audio is almost limitless.”). As the FCC itself acknowledges, “[c]hildren today live in
a media environment that is dramatically different from the one in which their parents and
grandparents grew up decades ago.” In the Matter of Empowering Parents and Protecting
Children in an Evolving Media Landscape, 24 F.C.C. Rcd. 13171, at ¶ 11 (2009).
Moreover, technological changes have given parents the ability to decide which programs
they will permit their children to watch. Every television, 13 inches or larger, sold in the United
States since January 2000 contains a V-chip, which allows parents to block programs based on a
standardized rating system. 47 U.S.C. § 303(x). Moreover, since June 11, 2009, when the
United States made the transition to digital television, anyone using a digital converter box also
has access to a V-chip. CSVA Report, 24 F.C.C. Rcd. 11413, at ¶ 11. In short, there now exists
a way to block programs that contain indecent speech in a way that was not possible in 1978. In
fact, the existence of technology that allowed for household-by-household blocking of
-16-
“unwanted” cable channels was one of the principle distinctions between cable television and
broadcast media drawn by the Supreme Court in Playboy. The Court explained:
The option to block reduces the likelihood, so concerning to the Court in Pacifica,
that traditional First Amendment scrutiny would deprive the Government of all
authority to address this sort of problem. The corollary, of course, is that targeted
blocking enables the Government to support parental authority without affecting
the First Amendment interests of speakers and willing listeners – listeners for
whom, if the speech is unpopular or indecent, the privacy of their own homes may
be the optimal place of receipt.
Playboy, 529 U.S. at 815 (internal citation omitted). We can think of no reason why this
rationale for applying strict scrutiny in the case of cable television would not apply with equal
force to broadcast television in light of the V-chip technology that is now available.
Nevertheless, as we stated in our previous decision, we are bound by Supreme Court
precedent, regardless of whether it reflects today’s realities. The Supreme Court may decide in
due course to overrule Pacifica and subject speech restrictions in the broadcast context to strict
scrutiny. This Court, however, is “not at liberty to depart from binding Supreme Court precedent
‘unless and until [the] Court reinterpret[s]’ that precedent.” OneSimpleLoan v. U.S. Sec’y of
Educ., 496 F.3d 197, 208 (2d Cir. 2007) (quoting Agostini v. Felton, 521 U.S. 203, 238 (1997))
(alterations in original). The Networks, although they may wish it otherwise, seem to concede
that we must evaluate the FCC’s indecency policy under the framework established by the
Supreme Court in Pacifica. See ABC Television Affiliates Association Br. at 12-13.
There is considerable disagreement among the parties, however, as to what framework
Pacifica established. The FCC interprets Pacifica as permitting it to exercise broad regulatory
authority to sanction indecent speech. In its view, the Carlin monologue was only the most
extreme example of a large category of indecent speech that the FCC can constitutionally
-17-
prohibit. The Networks, on the other hand, view Pacifica as establishing the limit of the FCC’s
authority. In other words, they believe that only when indecent speech rises to the level of
“verbal shock treatment,” exemplified by the Carlin monologue, can the FCC impose a civil
forfeiture. Because Pacifica was an intentionally narrow opinion, it does not provide us with a
clear answer to this question. Fortunately, we do not need to wade into the brambles in an
attempt to answer it ourselves. For we conclude that, regardless of where the outer limit of the
FCC’s authority lies, the FCC’s indecency policy is unconstitutional because it is impermissibly
vague. It is to this issue that we now turn.7
II.
It is a basic principle that a law or regulation “‘is void for vagueness if its prohibitions
are not clearly defined.’” Piscottano v. Murphy, 511 F.3d 247, 280 (2d Cir. 2007) (quoting
Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). A law or regulation is impermissibly
vague if it does not “give the person of ordinary intelligence a reasonable opportunity to know
what is prohibited.” Farrell v. Burke, 449 F.3d 470, 485 (2d Cir. 2006) (quoting Grayned, 408
U.S. at 108). The First Amendment places a special burden on the government to ensure that
restrictions on speech are not impermissibly vague. See Perez v. Hoblock, 368 F.3d 166, 175 n.5
(2d Cir. 2004) (“[A] law or regulation that ‘threatens to inhibit the exercise of constitutionally
protected rights,’ such as the right of free speech, will generally be subject to a more stringent
vagueness test.”) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 499 (1982))). However, “‘perfect clarity and precise guidance have never been required
7
Although, the Remand Order also found the broadcasts in question “profane,” the FCC
has abandoned that finding for the purposes of this appeal and has relied solely on its finding of
indecency. See FCC Br. at 24 n.2. We therefore do not address its profanity finding further.
-18-
even of regulations that restrict expressive activity.’” United States v. Williams, 128 S. Ct.
1830, 1845 (2008) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989)).
The vagueness doctrine serves several important objectives in the First Amendment
context. First, the doctrine is based on the principle of fair notice. “‘[W]e assume that man is
free to steer between lawful and unlawful conduct” and we give him notice of what is prohibited
“so that he may act accordingly.’” Farrell, 449 F.3d at 485 (quoting Grayned, 408 U.S. at 108).
Notice is particularly important with respect to content-based speech restrictions “because of
[their] obvious chilling effect on free speech.” Reno, 521 U.S. at 872. Vague regulations
“‘inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the
forbidden areas were clearly marked.’” Farrell, 449 F.3d at 485 (quoting Grayned, 408 U.S. at
109)). Second, the vagueness doctrine is based “on the need to eliminate the impermissible risk
of discriminatory enforcement.” Gentile v. State Bar of Nev., 501 U.S. 1030, 1051 (1991). “A
vague law impermissibly delegates basic policy matters to [government officials] for resolution
on an ad hoc and subjective basis . . . .” Grayned, 408 U.S. at 108-09 (emphasis added).
Specificity, on the other hand, guards against subjectivity and discriminatory enforcement.
A.
The Networks argue that the FCC’s indecency test is unconstitutionally vague because it
provides no clear guidelines as to what is covered and thus forces broadcasters to “steer far wider
of the unlawful zone,” rather than risk massive fines. In support of their position, the Networks
rely on the Supreme Court’s decision in Reno v. ACLU, 521 U.S. 844 (1997). Section 223(a) of
the Communications Decency Act (“CDA”) prohibited transmitting “indecent” material to
minors over the Internet while section 223(d) prohibited material that “in context, depicts or
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describes, in terms patently offensive as measured by contemporary community standards,
sexual or excretory activities or organs.” Id. at 859-60 (quoting 47 U.S.C. § 223(d)). In addition
to finding that the statute was not narrowly tailored, the Court found the statute
unconstitutionally vague because “the many ambiguities concerning the scope of its coverage
render[ed] it problematic for purposes of the First Amendment.” Id. at 870. The Court found
that the statute’s use of the “general, undefined terms ‘indecent’ and ‘patently offensive’
cover[ed] large amounts of nonpornographic material with serious educational or other value.
Because of the “vague contours” of the regulation, the Court held that “it unquestionably
silence[d] some speakers whose messages would be entitled to constitutional protection.” Id. at
874. The Networks argue that since Reno found this indecency regulation unconstitutionally
vague, the FCC’s identically-worded indecency test for broadcasting must fall as well.
FCC argues the opposite – that Reno forecloses a vagueness challenge to the FCC’s
policy. In Reno, the government argued that the CDA was “plainly constitutional” under the
Pacifica decision. Id. at 864. The Supreme Court rejected this argument, distinguishing Pacifica
on the grounds that (1) the FCC is an expert agency that had been regulating the radio for
decades; (2) the CDA was a categorical ban on speech while the FCC’s indecency regulation
designated “when – rather than whether – it would be permissible to air such a program”; (3) the
order at issue in Pacifica was not punitive; and (4) the broadcast medium had traditionally
received the most limited First Amendment protection. Id. at 867. According to the FCC,
because the Court refused to find Pacifica controlling of the constitutional challenges to the
CDA, we must find Reno equally inapplicable here.
As an initial matter, we reject the FCC’s argument that Reno forecloses the Networks’
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vagueness challenge. When the Supreme Court distinguished Pacifica in Reno, it did so with
respect to “the level of First Amendment scrutiny that should be applied to this medium,” not to
its analysis of whether the statute was unconstitutionally vague. Id. at 870. Broadcasters are
entitled to the same degree of clarity as other speakers, even if restrictions on their speech are
subject to a lower level of scrutiny. It is the language of the rule, not the medium in which it is
applied, that determines whether a law or regulation is impermissibly vague.
We also reject the Networks’ argument that Reno requires us to find the FCC’s policy
vague. To be sure, the CDA’s definition of indecency was almost identical to the Commission’s,
and language that is unconstitutionally vague in one context cannot suddenly become the model
of clarity in another. However, unlike in Reno, the FCC has further elaborated on the definition
of indecency in the broadcast context. For example, the FCC has outlined three factors that it
purportedly uses to determine whether a broadcast is patently offensive, Industry Guidance, 16
F.C.C. Rcd. 7999, at ¶¶ 7-8, and has declared “fuck” and “shit” presumptively indecent,
Omnibus Order, 2001 F.C.C. Rcd. 2664, at ¶¶ 102, 107. This additional guidance may not be
sufficient to survive a vagueness challenge, but it certainly distinguishes the FCC policy from
the one struck down in Reno.
Finally, we reject the FCC’s argument that the Networks’ vagueness challenge is
foreclosed by Pacifica itself. Pacifica, which did not reach the question of whether the FCC’s
policy was unconstitutionally vague, was an intentionally narrow opinion predicated on the
FCC’s “restrained” enforcement policy. Pacifica, 438 U.S. at 761 (Powell J., concurring). The
FCC’s policy has now changed and we would be hard pressed to characterize it as “restrained.”
Thus, the questions left unresolved by Pacifica are now squarely before us, as the Supreme Court
-21-
itself indicated in its opinion above. See Fox, 129 S. Ct. at 1819 (“[W]hether [the FCC’s policy]
is unconstitutional, will be determined soon enough, perhaps in this very case.”).8
B.
Having concluded that neither Pacifica nor Reno resolves the question, we must now
decide whether the FCC’s indecency policy provides a discernible standard by which
broadcasters can accurately predict what speech is prohibited. The FCC set forth its indecency
policy in its 2001 Industry Guidance, in which the FCC explained that an indecency finding
involved the following two determinations: (1) whether the material “describe[s] or depict[s]
sexual or excretory organs or activities”; and (2) whether the broadcast is “patently offensive as
measured by contemporary community standards for the broadcast medium.” Id. at ¶¶ 7-8.
Under the policy, whether a broadcast is patently offensive depends on the following three
factors: (1) “the explicitness or graphic nature of the description or depiction”; (2) “whether the
material dwells on or repeats at length” the description or depiction; and (3) “whether the
material appears to pander or is used to titillate, or whether the materials appears to have been
presented for its shock value.” Id. at ¶ 10 (emphasis added). Since 2001, the FCC has
8
The FCC also argues that the DC Circuit’s Action for Children’s Television cases
preclude Networks’ vagueness challenge, but this argument fails for the same reason its Pacifica
argument fails. The DC Circuit, like the Supreme Court, relied specifically on the FCC’s
restrained policy in reaching its decision. See Action for Children’s Television v. FCC, 852 F.2d
1332,1340 n.14 (D.C. Cir. 1988), superseded by 58 F.3d 654 (D.C. Cir. 1995) (en banc) (“[T]he
potential chilling effect of the FCC’s generic definition of indecency will be tempered by the
Commission’s restrained enforcement policy.”). Moreover, to the extent the ACT cases held that
a vagueness challenge was precluded by Pacifica, we are not bound by the DC Circuit and do not
find it persuasive. To the extent that our opinion in Dial Information Services Corp. v.
Thornburgh, 938 F.2d 1535, 1541 (2d Cir. 1991), held that the same definition of indecency was
not impermissibly vague in the non-broadcast context, that holding was overruled by the
Supreme Court’s decision in Reno.
-22-
interpreted its indecency policy in a number of decisions, including Golden Globes Order and
the orders on review here.
The FCC argues that the indecency policy in its Industry Guidance, together with its
subsequent decisions, give the broadcasters sufficient notice as to what will be considered
indecent. The Networks argue that the policy is impermissibly vague and that the FCC’s
decisions interpreting the policy only add to the confusion of what will be considered indecent.
We agree with the Networks that the indecency policy is impermissibly vague. The first
problem arises in the FCC’s determination as to which words or expressions are patently
offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was
patently offensive, it concluded that “dick” and “dickhead” were not. Omnibus Order, 21 F.C.C.
Rcd 2664, at ¶¶ 127-128. Other expletives such as “pissed off,” up yours,” “kiss my ass,” and
“wiping his ass” were also not found to be patently offensive. Id. at ¶ 197. The Commission
argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will
find indecent. However, in each of these cases, the Commission’s reasoning consisted of
repetition of one or more of the factors without any discussion of how it applied them. Thus, the
word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words
“dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This
hardly gives broadcasters notice of how the Commission will apply the factors in the future.
The English language is rife with creative ways of depicting sexual or excretory organs
or activities, and even if the FCC were able to provide a complete list of all such expressions,
new offensive and indecent words are invented every day. For many years after Pacifica, the
FCC decided to focus its enforcement efforts solely on the seven “dirty” words in the Carlin
-23-
monologue. See Infinity Order, 3 F.C.C. Rcd. 930, at ¶ 5 (1987). This strategy had its
limitations – it meant that some indecent speech that did not employ these seven words slipped
through the cracks. However, it had the advantage of providing broadcasters with a clear list of
words that were prohibited. Not surprisingly, in the nine years between Pacifica and the FCC’s
abandonment of this policy, not a single enforcement action was brought. This could be because
we lived in a simpler time before such foul language was common. Or, it could be that the
FCC’s policy was sufficiently clear that broadcasters knew what was prohibited.
The FCC argues that a flexible standard is necessary precisely because the list was not
effective – broadcasters simply found offensive ways of depicting sexual or excretory organs or
activities without using any of the seven words. In other words, because the FCC cannot
anticipate how broadcasters will attempt to circumvent the prohibition on indecent speech, the
FCC needs the maximum amount of flexibility to be able to decide what is indecent. The
observation that people will always find a way to subvert censorship laws may expose a certain
futility in the FCC’s crusade against indecent speech, but it does not provide a justification for
implementing a vague, indiscernible standard. If the FCC cannot anticipate what will be
considered indecent under its policy, then it can hardly expect broadcasters to do so. And while
the FCC characterizes all broadcasters as consciously trying to push the envelope on what is
permitted, much like a petulant teenager angling for a later curfew, the Networks have expressed
a good faith desire to comply with the FCC’s indecency regime. They simply want to know with
some degree of certainty what the policy is so that they can comply with it. The First
Amendment requires nothing less.
The same vagueness problems plague the FCC’s presumptive prohibition on the words
-24-
“fuck” and “shit” and the exceptions thereto. Under the FCC’s current policy, all variants of
these two words are indecent unless one of two exceptions apply. The first is the “bona fide
news” exception, which the FCC has failed to explain except to say that it is not absolute. The
second is the artistic necessity exception, in which fleeting expletives are permissible if they are
“demonstrably essential to the nature of an artistic or educational work or essential to informing
viewers on a matter of public importance.” Omnibus Order, 21 F.C.C. Rcd. 2664, at ¶ 82. In
deciding whether this exception applies, the FCC “consider[s] whether the material has any
social, scientific or artistic value.” In re Complaints Against Various Television Licensees
Regarding Their Broadcast on November 11, 2004, of the ABC Television Network's
Presentation of the Film “Saving Private Ryan”, 20 F.C.C. Rcd. 4507, at ¶ 11 (2005) (“Saving
Private Ryan”).
As we stated in our previous opinion:
Although the Commission has declared that all variants of “fuck” and “shit” are
presumptively indecent and profane, repeated use of those words in “Saving
Private Ryan,” for example, was neither indecent nor profane. And while multiple
occurrences of expletives in “Saving Private Ryan” was not gratuitous, a single
occurrence of “fucking” in the Golden Globe Awards was “shocking and
gratuitous.” Parental ratings and advisories were important in finding “Saving
Private Ryan” not patently offensive under contemporary community standards,
but irrelevant in evaluating a rape scene in another fictional movie. The use of
numerous expletives was “integral” to a fictional movie about war, but occasional
expletives spoken by real musicians were indecent and profane because the
educational purpose of the documentary “could have been fulfilled and all
viewpoints expressed without the repeated broadcast of expletives.” The
“S-Word” on The Early Show was not indecent because it was in the context of a
“ bona fide news interview,” but “there is no outright news exemption from our
indecency rules.”
Fox, 489 F.3d at 463 (internal citations and emphasis omitted). There is little rhyme or reason to
these decisions and broadcasters are left to guess whether an expletive will be deemed “integral”
-25-
to a program or whether the FCC will consider a particular broadcast a “bona fide news
interview.”
The FCC created these exceptions because it recognized that an outright ban on certain
words would raise grave First Amendment concerns. In the Omnibus Order, the FCC
“recognize[d] the need for caution with respect to complaints implicating the editorial judgment
of broadcast licensees in presenting news and public affairs programming, as these matters are at
the core of the First Amendment’s free press guarantee.” 21 F.C.C. Rcd. 2664, at ¶ 15.
Likewise, in applying the “artistic necessity” exception, the FCC noted that it was obligated to
“proceed with due respect for the high value our Constitution places on freedom and choice in
what the people say and hear,” particularly with respect to speech that has “social, scientific or
artistic value.” Saving Private Ryan, 20 F.C.C. Rcd. 4507, at ¶ 11 (internal quotation marks
omitted). It is these same concerns that informed the FCC’s original “restrained” enforcement
policy, which had the advantage of prohibiting the most egregious instances of indecent speech
while minimizing the burden on protected speech.
The FCC’s current indecency policy undoubtedly gives the FCC more flexibility, but this
flexibility comes at a price. The “artistic necessity” and “bona fide news” exceptions allow the
FCC to decide, in each case, whether the First Amendment is implicated. The policy may
maximize the amount of speech that the FCC can prohibit, but it results in a standard that even
the FCC cannot articulate or apply consistently. Thus, it found the use of the word “bullshitter”
on CBS’s The Early Show to be “shocking and gratuitous” because it occurred “during a
morning television interview,” Omnibus Order, 21 FCC Rcd 2664, at ¶ 141, before reversing
itself because the broadcast was a “bona fide news interview.” Remand Order, 21 FCC Rcd.
-26-
13299, at ¶ 68. In other words, the FCC reached diametrically opposite conclusions at different
stages of the proceedings for precisely the same reason – that the word “bullshitter” was uttered
during a news program. And when Judge Leval asked during oral argument if a program about
the dangers of pre-marital sex designed for teenagers would be permitted, the most that the
FCC’s lawyer could say was “I suspect it would.” With millions of dollars and core First
Amendment values at stake, “I suspect” is simply not good enough.
With the FCC’s indiscernible standards come the risk that such standards will be
enforced in a discriminatory manner. The vagueness doctrine is intended, in part, to avoid that
risk. If government officials are permitted to make decisions on an “ad hoc” basis, there is a risk
that those decisions will reflect the officials’ subjective biases. Grayned, 408 U.S. at 108-09.
Thus, in the licensing context, the Supreme Court has consistently rejected regulations that give
government officials too much discretion because “such discretion has the potential for
becoming a means of suppressing a particular point of view.” Forsyth County, Ga. v. Nationalist
Movement, 505 U.S. 123, 130 (1992) (internal quotation marks omitted); see also City of
Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 758 (1988) (permit scheme facially
unconstitutional because “post hoc rationalizations by the licensing official and the use of
shifting or illegitimate criteria are far too easy, making it difficult for courts to determine in any
particular case whether the licensor is permitting favorable, and suppressing unfavorable,
expression”).
We have no reason to suspect that the FCC is using its indecency policy as a means of
suppressing particular points of view. But even the risk of such subjective, content-based
decision-making raises grave concerns under the First Amendment. Take, for example, the
-27-
disparate treatment of “Saving Private Ryan” and the documentary, “The Blues.” The FCC
decided that the words “fuck” and “shit” were integral to the “realism and immediacy of the film
experience for viewers” in “Saving Private Ryan,” but not in“The Blues.” Fox, 489 F.3d at 463.
We query how fleeting expletives could be more essential to the “realism” of a fictional movie
than to the “realism” of interviews with real people about real life events, and it is hard not to
speculate that the FCC was simply more comfortable with the themes in “Saving Private Ryan,”
a mainstream movie with a familiar cultural milieu, than it was with “The Blues,” which largely
profiled an outsider genre of musical experience. But even if there were a perfectly benign way
of explaining these particular outcomes, nothing would prevent the FCC from applying its
indecency policy in a discriminatory manner in the future. As the Supreme Court explained in
Forsyth:
It is not merely the sporadic abuse of power by the censor but the pervasive threat
inherent in its very existence that constitutes the danger to freedom of discussion.
Accordingly, the success of a facial challenge on the grounds that an ordinance
delegates overly broad discretion to the decisionmaker rests not on whether the
administrator has exercised his discretion in a content-based manner, but whether
there is anything in the ordinance preventing him from doing so.
505 U.S. at 133 n.10 (internal quotation marks and citations omitted).
The FCC argues that its context-based approach is consistent with, indeed even required
by, Pacifica. While Pacifica emphasized the importance of context in regulating indecent
broadcasts, see 438 U.S. at 750, it did so in order to emphasize the limited scope of its holding,
finding that the particular “context” of the Carlin monologue justified an intrusion on
broadcasters rights under the First Amendment. It does not follow that the FCC can justify any
decision to sanction indecent speech by citing “context.” Of course, context is always relevant,
and we do not mean to suggest otherwise in this opinion. But the FCC still must have
-28-
discernible standards by which individual contexts are judged.
The FCC assures us that it will “bend over backwards” to protect editorial judgment, at
least in the news context, but such assurances are not sufficient given the record before us.
Instead, the FCC should bend over backwards to create a standard that gives broadcasters the
notice that is required by the First Amendment.9
III.
Under the current policy, broadcasters must choose between not airing or censoring
controversial programs and risking massive fines or possibly even loss of their licenses, and it is
not surprising which option they choose. Indeed, there is ample evidence in the record that the
FCC’s indecency policy has chilled protected speech.
For instance, several CBS affiliates declined to air the Peabody Award-winning “9/11”
documentary, which contains real audio footage – including occasional expletives – of
firefighters in the World Trade Center on September 11th. Although the documentary had
previously aired twice without complaint, following the Golden Globes Order affiliates could no
longer be sure whether the expletives contained in the documentary could be found indecent.
See Larry Neumeister, “Some CBS Affiliates Worry over 9/11 Show,” Associated Press, Sept. 3,
2006. In yet another example, a radio station cancelled a planned reading of Tom Wolfe’s novel
I Am Charlotte Simmons, based on a single complaint it received about the “adult” language in
the book, because the station feared FCC action. When the program was reinstated two weeks
9
The FCC recently filed a letter pursuant to Rule 28(j) of the Federal Rules of Appellate
Procedure drawing our attention to certain language in the Supreme Court’s recent decision in
Humanitarian Law Project v. Holder, No. 08-1498, 2010 WL 2471055 (June 21, 2010). Given
the entirely different procedural posture in Humanitarian Law Project, we conclude that it is
inapposite to the issues before us here.
-29-
later, the station decided that it could only safely air the program during the “safe harbor” period.
The FCC’s application of its policy to live broadcasts creates an even more profound
chilling effect. In the case of the 2003 Billboard Music Awards broadcasts, Fox had an audio
delay system in place to bleep fleeting expletives. It also pre-cleared the scripts of the
presenters. Ritchie, however, departed from her script and used three expletives in rapid
sequence. While the person employed to monitor and bleep expletives was bleeping the first, the
following two slipped through. Even elaborate precautions will not protect a broadcaster against
such occurrences. The FCC argues that Fox should simply implement a more effective screening
system, but, short of giving up live broadcasting altogether, no system will ever be one hundred
percent effective.10 Instead, Fox may decide not to ask individuals with a history of using
profanity to present at its awards shows.11 But, of course, this will not prevent someone who
wins an award – such as Cher or Bono – from using fleeting expletives. In fact, the only way
that Fox can be sure that it won’t be sanctioned by the FCC is by refusing to air the broadcast
live.
This chilling effect extends to news and public affairs programming as well.
Broadcasters may well decide not to invite controversial guests on to their programs for fear that
10
Nor would such a system be costless for broadcasters. For instance, Fox estimates that
installing an audio delay system for all live programming would cost an estimated $16 million a
year.
11
Indeed, there is evidence in the record that broadcasters have made personnel
decisions on the basis of the FCC’s indecency policy. For instance, public radio personality
Sandra Loh was fired after a single use of an expletive as “a precautionary measure to show the
station had distanced itself . . . in case the FCC investigates.” Greg Braxton, “KCRW Fires Loh
Over Obscenity,” L.A. Times (Mar. 4, 2004), available at
http://articles.latimes.com/2004/mar/04/
local/me-loh4.
-30-
an unexpected fleeting expletive will result in fines. The FCC points to its “bona fide news”
exception to show that such fears would be unfounded. But the FCC has made clear that it
considers the decision to apply this exception a matter within its discretion. Otherwise, why not
simply make an outright news exception? During the previous proceedings before this Court,
amicus curiae gave the example of a local station in Vermont that refused to air a political debate
because one of the local politicians involved had previously used expletives on air. The record
contains other examples of local stations that have forgone live programming in order to avoid
fines. For instance, Phoenix TV stations dropped live coverage of a memorial service for Pat
Tillman, the former football star killed in Afghanistan, because of language used by Tilliman’s
family members to express their grief. A station in Moosic, Pennsylvania submitted an affidavit
stating that in the wake of the FCC’s new policy, it had decided to no longer provide live, direct-
to-air coverage of news events “unless they affect matters of public safety or convenience.”12 If
the FCC’s policy is allowed to remain in place, there will undoubtedly be countless other
situations where broadcasters will exercise their editorial judgment and decline to pursue
contentious people or subjects, or will eschew live programming altogether, in order to avoid the
FCC’s fines. This chill reaches speech at the heart of the First Amendment.
The chill of protected speech has even extended to programs that contain no expletives,
but which contain reference to or discussion of sex, sexual organs, or excretion. For instance,
Fox decided not to re-broadcast an episode of “That 70s Show” that dealt with masturbation,
12
Nor are these concerns unfounded. The Commission currently has several pending
investigations concerning expletives uttered during live news and sports programming. For
instance, after a surprise win against Notre Dame, the University of Pittsburgh quarterback stated
that he was “so fucking proud of our football team” on live television. The FCC’s investigation
into this incident is ongoing.
-31-
even though it neither depicted the act or discussed it in specific terms. The episode
subsequently won an award from the Kaiser Family Foundation for its honest and accurate
depiction of a sexual health issue. Similarly, an episode of “House” was re-written after
concerns that one of the character’s struggles with psychiatric issues related to his sexuality
would be considered indecent by the FCC.
As these examples illustrate, the absence of reliable guidance in the FCC’s standards
chills a vast amount of protected speech dealing with some of the most important and universal
themes in art and literature. Sex and the magnetic power of sexual attraction are surely among
the most predominant themes in the study of humanity since the Trojan War. The digestive
system and excretion are also important areas of human attention. By prohibiting all “patently
offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to
what “patently offensive” means, the FCC effectively chills speech, because broadcasters have
no way of knowing what the FCC will find offensive. To place any discussion of these vast
topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable
material which should be completely protected under the First Amendment.
IV.
For the foregoing reasons, we strike down the FCC’s indecency policy. We do not
suggest that the FCC could not create a constitutional policy. We hold only that the FCC’s
current policy fails constitutional scrutiny. The petition for review is hereby GRANTED.
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