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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.
