Fox ruling: textbook lesson on problem with vague laws

Thursday, June 21, 2012

Fox Television and ABC prevailed in the latest round of their court battle with the FCC, as the U.S. Supreme Court ruled that the agency’s change in policy on fleeting expletives was too vague. The Court’s opinion explains clearly why it would be unfair to impose draconian fines on the television stations — because it was anyone’s guess as to when random, unscripted uses of profane words or glimpses of nudity would cross the FCC’s indecency line.

The “void for vagueness” doctrine is grounded in due process — that it is fundamentally unfair to punish someone if he or she (or it) did not have adequate notice of whether his or her conduct was permissible or prohibited.

Justice Anthony Kennedy’s opinion for the Court in FCC v. Fox Television Stations explains in textbook fashion the two chief “discrete due process concerns” with vague laws: (1) “that regulated parties should know what is required of them so they may act accordingly”; and (2) “precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way.”

Kennedy said vague laws presented special problems when they regulate or punish speech: “When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.”

He outlined in some detail how the FCC’s policy changed and led to inconsistent results as to whether curse words or nudity in different types of programs constituted indecency. Kennedy outlined that the FCC’s abrupt change in policy showed that it had failed to provide proper notice. He then emphasized again that such an sudden change is even worse when the possible chilling of free expression is at stake:

“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.”

Some may be disappointed that the Court did not invalidate the FCC policy as unconstitutional on its face or overrule its prior broadcast-indecency decision in FCC v. Pacifica (1978).

But Kennedy and his colleagues gave the FCC a constitutional lesson on due process and vagueness — emphasizing that the lesson was even more important in the First Amendment context.

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