FCC v. Fox TV Stations, Inc.

Opinion

 [*243]  Justice Kennedy delivered the opinion of the Court.

In FCC v. Fox Television Stations, Inc., 556 U. S. 502, 529, 129 S. Ct. 1800, 173 L. Ed. 2d 738 (2009) (Fox I), the Court held that the Federal Communications Commission's decision to modify its indecency enforcement regime to regulate so-called fleeting expletives was neither arbitrary nor capricious. The Court then declined to address the constitutionality of the policy, 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.

 [**2312]  I

In Fox I, the Court described both the regulatory framework through which the Commission regulates broadcast indecency  [****8] and the long procedural history of this case. The Court need not repeat all that history, but  [***240] some preliminary discussion is necessary to understand the constitutional issue the case now presents.

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 Communications 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, § 16(a), 106 Stat. 954, note following 47 U. S. C. § 303, p. 113 (Broadcasting of Indecent Programming). And the Commission has applied  [*244]  its regulations to radio and television broadcasters alike, see Fox I, supra, at 505-506, 129 S. Ct. 1800, 173 L. Ed. 2d 738; 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 indecent broadcasts under § 1464 since 1948 (and its predecessor commission, the Federal Radio Commission, since 1927), it did not begin to enforce § 1464 until the 1970's. See Campbell,  [****9] 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, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 (1978). In Pacifica, the Commission determined that George Carlin's “Filthy Words” monologue was indecent. It contained “ '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 732, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 (quoting 56 F. C. C. 2d 94, 98 (1975)). This Court upheld 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, 98 S. Ct. 3026, 57 L. Ed. 2d 1073, and that § 1464's definition of indecency was not confined to speech with an appeal to the prurient interest, see id., at 738-741, 98 S. Ct. 3026, 57 L. Ed. 2d 1073. Finding no First Amendment violation, the decision explained the constitutional standard under which regulations of broadcasters are assessed. It observed that  [****10] “broadcast media have established a uniquely pervasive presence in the lives of all Americans,” id., at 748, 98 S. Ct. 3026, 57 L. Ed. 2d 1073, and that “broadcasting is uniquely accessible to children, even those too young to read,” id., at 749, 98 S. Ct. 3026, 57 L. Ed. 2d 1073. In light of these considerations, “broadcasting . . . has received the most limited First Amendment protection.” Id., at 748, 98 S. Ct. 3026, 57 L. Ed. 2d 1073. Under this standard the Commission's order  [*245]  passed constitutional 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, 98 S. Ct. 3026, 57 L. Ed. 2d 1073; see also id., at 760-761, 98 S. Ct. 3026, 57 L. Ed. 2d 1073 (Powell, J., concurring in part and concurring in judgment) (“[C]ertainly the Court's holding . . . does not  [***241] 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”).

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