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Law School Case Brief

FCC v. Fox TV Stations, Inc. - 567 U.S. 239, 132 S. Ct. 2307 (2012)


A fundamental principle in the United States' legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. 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 application, violates the first essential of due process of law. Living under a rule of law entails various suppositions, one of which is that all persons are entitled to be informed as to what the State commands or forbids. This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. 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 enforcement. A regulation is not vague because it may at times be difficult to prove an incriminating fact but rather because it is unclear as to what fact must be proved.


The Federal Communications Commission (FCC) ruled that certain broadcasts of fleeting expletives and fleeting nudity of respondent television broadcasters were indecent in violation of 18 U.S.C.S. § 1464. At the time of airing of the subject broadcasts, FCC rulings required repetitive use of offensive material in order for a broadcast to be found indecent. After the broadcasts, the FCC revised its policy and ruled that fleeting expletives or nudity could be actionably indecent. Respondents challenged the policy and the appellate court invalidated the policy in its entirety on vagueness grounds. The Supreme Court granted certiorari.


Does FCC’s revised indecency policy violate the due process clause under the Fifth Amendment?




The Supreme Court held that the FCC's application of its revised indecency policy to the incidents at issue violated the Due Process Clause of the Fifth Amendment due to vagueness. The policy in place at the time of the broadcasts gave the broadcasters no notice that a fleeting expletive or a brief shot of nudity could be actionably indecent.

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