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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
Communication 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. metricconverter613 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 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), 106Stat. 954,
note following 47 U. S. C. §303, p. 113
(Broadcasting of Indecent Programming). And the Commission has
applied its regulations to radio and television 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
indecent 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 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 (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, 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 violation,
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 children, 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 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; 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
Broadcasting Corp., 3 FCC Rcd. 930 (1987); see also
In re Application 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”). Recognizing 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 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 “appropriately 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
Commission continued to note the important difference between
isolated and repeated broadcasts of indecent material. See
ibid. (considering variables in determining whether material
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 mandate 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
indecency.”
In re Industry Guidance on Commission’s
Case Law Interpreting 18 U. S. C. §1464 and
Enforcement 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 description or depiction of sexual or excretory organs or
activities; (2) whether the material dwells on or repeats at length
descriptions of sexual or excretory organs 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 references have been made
once or have been passing or fleeting in nature, this
characteristic has tended to weigh against a finding of indecency.”
Id., at 8008. The Commission 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 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 awkwardness
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 Commission
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 (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 isolated 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
Regarding Various Television Broadcasts Between February 2, 2002,
and March 8, 2005, 21 FCC Rcd. 2664 (2006). Numerous 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 parties’ objections.
Fox Television Stations,
Inc. v.
FCC, 489 F.3d 444, 453 (2007). In its remand
order, the Commission applied its tripartite definition of patently
offensive material from its 2001 Order and found that both
broadcasts fell well within its scope. See
In re Complaints
Regarding Various Television Broadcasts Between February 2, 2002,
and March 8, 2005, 21 FCC Rcd. 13299 (2006) (
Remand
Order); see also
Fox I, supra, at 511–513 (discussing 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 Commission deemed Fox should have known Nicole Richie’s
comments were actionably indecent even prior to the
Golden
Globes Order, 21 FCC Rcd., at 13307, it declined to propose 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 broadcast.” 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 Television Stations,
Inc. v.
FCC, 489 F.3d 444. In a 2-to-1 decision, 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 treatment of ‘fleeting
expletives’ without providing a reasoned explanation justifying the
about-face.” 489 F. 3d, at 455. While noting its skepticism as
to whether the Commission’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
Administrative 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
fleeting 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 detailed 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
neither 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 concluded 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 offensive words,”
ibid., but the Court agreed that
the Commission’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 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
respondents’ 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 Commission adjudications, the court
found the Commission was inconsistent as to which words it deemed
patently offensive. 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 evidence 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
order finding the display of the woman’s nude buttocks in NYPD Blue
was actionably indecent. See
In re Complaints Against
Various Television Licensees Concerning Their February 24, 2003
Broadcast of the Program “NYPD Blue”, 23 FCC Rcd. 3147 (2008).
The Commission determined that, regardless of medical definitions,
displays of buttocks fell within the category of displays of sexual
or excretory organs because the depiction was “widely associated
with sexual arousal and closely associated by most people with
excretory activities.”
Id., at 3150. The scene was deemed
patently offensive as measured by contemporary 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 Commission 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, determining 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 application, violates the first essential of due process of
law”);
Papachristou v.
Jacksonville,
405 U.S.
156, 162 (1972) (“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’ ”
(quoting
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 enforcement.”
Ibid. As this Court has explained, 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.
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 discriminatory way. See
Grayned v.
City of Rockford,
408
U.S. 104, 108–109 (1972). When speech is involved, rigorous
adherence 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 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 promulgated
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 actionably indecent; yet Fox and ABC were found
to be in violation. 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 “sensitive areas of basic First
Amendment freedoms,”
Baggett v.
Bullitt,
377 U.S.
360, 372 (1964); see also
Reno v.
American 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 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 context,” 21 FCC Rcd., at
13321, 13326. This “policy of forbearance,” 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 future 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 “reputation with viewers and advertisers.”
Brief for Respondent CBS Television Network Affiliates Assn.
et al. 17. This observation is hardly surprising given that
the challenged orders, which are contained in the permanent
Commission record, describe in strongly disapproving terms the
indecent 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 Government 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 impermissible speech. The Commission,
furthermore, had released decisions before sanctioning ABC that
declined to find isolated and brief moments of nudity actionably
indecent. 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 considered
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 Goldstein 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. 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 implications 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 because 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 Petitioners
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 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 principles
set forth in this opinion.
It is so ordered.
Justice Sotomayor took no part in the
consideration or decision of these cases.
