On July 13, 2010, the US Court of Appeals for the Second Circuit struck down, for the second time, the FCC’s indecency policy in Fox Television Stations, Inc. v. FCC, Case Nos. 06-1760-ag et al. The case had been remanded back to the Second Circuit after the Supreme Court reversed that court’s first rejection of the FCC policy as arbitrary and capricious. In this most recent opinion, the court of appeals ruled that the agency’s policy is unconstitutionally vague under the First Amendment, "creating a chilling effect that goes far beyond the fleeting expletives at issue here."
The court of appeals agreed with the various petitioners that the FCC’s determination of which words or expressions are “patently offensive” left the networks with no clear understanding of what the FCC considers to be indecent and thus punishable by substantial civil fines. After reciting various examples of how the FCC’s policy had caused broadcasters to self-censor for fear of FCC sanction, the court ruled that “the absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. … By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.” The opinion is available here.
