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Free Expression

CDT Comment on Supreme Court’s FCC v. FOX Decision

Washington — In a unanimous opinion today, the Supreme Court dodged the First Amendment questions around the FCC’s policy of fining broadcasters for airing “fleeting expletives” in the case of FOX v. FCC.  Instead, the Court held that, in the particular cases at issue, the FCC had failed to give fair notice to broadcasters about what content could draw a fine for indecency, in violation of the Due Process clause of the Constitution.

While the Court declined to directly address the validity of the FCC’s indecency policy under the First Amendment, it did note that its opinion today “leaves the courts free to review the [FCC’s] current policy or any modified policy in light of its content and application.”
“Between the Second Circuit’s earlier opinion finding that the FCC’s indecency policy violated the First Amendment, and Justice Ginsburg and Thomas today raising similar doubts about the policy’s constitutionality, the FCC is on notice that the courts are increasingly skeptical of its regulation of broadcast indecency,” said CDT Policy Counsel Emma Llanso.
CDT, joined by a coalition of civil liberties organizations, filed an amicus brief in the case calling for a reversal of the 1978 Pacifica decision that gave the FCC authority to regulate indecent broadcast, arguing that today’s media environment challenges the assumption that broadcast media deserves only watered-down First Amendment protections. “As Justice Ginsburg noted, technological advances have radically altered the media landscape since Pacifica was decided,” Llanso said. “Broadcast has become just one of many ways that people can access media, and user empowerment tools give parents a greater ability than ever before to select content they decide is appropriate for their children.  These developments undermine any argument that the FCC’s regulation of broadcast indecency is necessary or constitutional under the First Amendment.”