In the Supreme Court of the United States

FEDERAL COMMUNICATIONS COMMISSION,

PETITIONER

v.
FOX TELEVISION STATIONS, INC.,
RESPONDENT

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE PETITIONERS

RICHARD ALLRIDGE
PAUL GANEV
MICHELENE HEAREY
STEFANIA MANCINO
CHRISTOPHER PUCCIO

TABLE OF CONTENTS
Page
Table of Authorities 1
Question Presented .1
Statement of the Case .1
Summary of the Argument .3
Argument..5
Conclusion.10
TABLE OF AUTHORITIES

Cases:

Page
FCC v. Pacifica Foundation .....2, 5
FCC v. Fox Television Stations ...5

Constitution, statutes and regulation:

Administrative Procedure Act ..3
Industry Guidance on the Commissions Case Law
Interpreting, 18 U.S.C. 1464 6
First or Fifth Amendment of the United States
Constitution 10
QUESTION PRESENTED
Did the court of appeals err in holding that the Federal Communications Commissions new
policy to permit use of fleeting expletives on broadcast television to be considered indecent lacked
adequate explanation and considered the change to be arbitrary and capricious?
STATEMENT OF THE CASE

In Section 1464 of Title 18 of the United States Code it is stated that whoever utters any
obscene, indecent, or profane language by means of radio communication shall be fined under
this title or imprisoned not more than two years, or both. The Federal Communications
1

Commission is responsible for authorizing Section 1464 by regulating the broadcast of indecent
speech. The first authorization of the Code was in 1975 when the FCC authorized the broadcast
of George Carlins Filthy Words monologue as indecent, FCC v. Pacifica Foundation. It wasnt
until 2001 that the FCC again acted on its authority to regulate indecent broadcasting. The FCC
released an industry guidance document that explained indecent broadcasting as broadcasted
material describing sexual or excretory activities and whether it was patently offensive. The
FCC established three principal factors that it considered crucial in evaluating
patent offensiveness: (1) the 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; [and] (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. In context, those materials that are isolated
and fleeting are not considered indecent.
However, in 2003, the FCC overruled its previous regulation when it
noted that broadcasters could be fined for airing the F-word on television
although it wasnt repeated at length. This reregulation was caused by
complaints of the broadcast of the 2003 Golden Globes Awards. At accepting
an award at the Golden Globes, Bono stated, this is really, really fucking brilliant.
Really, really great. In 2006, the FCC reaffirmed that the utterance of the F-word on broadcast
was indecent, with the addition of the S-word. This reaffirmation was due to Foxs broadcast of
the 2002 and 2003 Billboard Music Awards. At the 2002 Billboard Music Awards, Cher stated,
People have been telling me Im on the way out every year, right? So fuckem. The following

year Nicole Ritchie said Have you ever tried to get cow shit out of a Prada purse? Its not so
fucking simple. The FCC argued that although the F-word was not repeated in either incidents,
the word was considered patently offensive. It was considered indecent for the reasons that the
F-Word is one of the most vulgar, graphic and explicit descriptions of sexual
activity in the English language; its use invariably invokes a coarse sexual
image; and its broadcast on a nationally telecast awards ceremony was
shocking and gratuitous.
Fox petitioned the U.S. Court of Appeals for the Second Circuit for a review of the
Omnibus Order. The Second Circuit allowed for FCC a remand, in which reaffirmed the
indecency in the broadcasting of the Billboard Music Awards. However in a petition to review
the remand order, the Second Circuit found that FCCs new indecency policy was arbitrary and
capricious under the Administrative Procedure Act. The Court remanded again allowing the
FCC to petition the U.S. Supreme Court for a certiorari. Judge Leval disagreed with the Court.
He reasoned that the FCC had good reason for the new policy. Judge Leval stated, the
Commission found, contrary to its earlier policy, that the word is of such
graphic explicitness in inevitable reference to sexual activity that absence of
repetition does not save it from violating the standard of decency. He
believed that it was a case in which the Court and the agency differed in
opinion. In fact, he believed that the criticism of inconsistency had made the
FCC more consistent in ensuring that the same context-based factors will
apply to all circumstances.
SUMMARY OF THE ARGUMENT

Beginning in 2004, the Federal Communications Commission (FCC) amended a policy

that regulated the use of fleeting expletives on television. Fleeting expletives are defined as "a

single, nonliteral use of an expletive" (Page 9). This resulted in a law suit, in which, eventually
the Supreme Court reversed the Second Circuit's decision in a 5-4 vote and stated that the policy
was legal under the Administrative Procedure Act. The Supreme Court also asked the Second
Circuit to evaluate Fox's claim that the policy was illegal because of the 1st Amendment right to
freedom of speech. The following discusses the case reviewing the accusation of the
unconstitutionality of the FCC policy.
The Second Circuit ruled that the policy "[v]iolates the First Amendment because it is
unconstitutionally vague" (Page 2). Initially with the development of this regulation, the FCC
focused on certain words, but recently has begun to examine the context of inappropriate text and
reprimand accordingly. This has expanded to afore mentioned "fleeting expletives."
In previous cases, the Second Court notes that "indecent speech is fully protected by the
First Amendment" (page 14). Although it should be said, the Second Court also makes clear that
television prevents a specific set of issues for regulatory practices that do not exist in other
broadcasting mediums. Traditionally, the Courts have held that the media has been held to higher
standards because of its ability to influence the public and the ability to reach children. The
Second Court also reaffirms from previous Supreme Court cases that the internet in particular
has given children easier access to more controversial materials and that parents have the
opportunity to better regulate content through many content blocking technologies.
In this particular case, the Second Circuit notes that a vague law or regulation prevents
"the person of ordinary intelligence a reasonable opportunity to know what is prohibited" (18).
The Second Circuit also notes that the First Amendment forces the government to prevent
"restrictions on speech that are impermissibly vague" (18). The Second Circuit goes further and
reasons vague laws and restrictions force citizens to "steer far wider of the unlawful zone than if

the boundaries were marked clearly" (18). In addition, the Second Circuit believes the
prevention of vague laws and restrictions help "eliminate the impermissible risk of
discriminatory enforcement" (19).
The Second Circuit believes that the FCC's fleeting expletive policy is too vague, as it
"provides no clear guidelines as to what is covered" (19). The Second Circuit argues that the
guidelines attempt to regulate the ever-changing English language. As the Second Circuit notes
"[e]ven if the FCC were able to provide a complete list of all such [banned] expressions, new
offensive and indecent words are invented every day" (23). Without clear guidelines, the Second
Circuit argues networks will choose to overregulate and not air material, simply because the
guidelines are unclear.
The Second Court also notes that broadcasters will attempt to circumvent the censorship
of indecent speech. Because of this, the FCC needs to have flexible guidelines. But when the
guidelines are too flexible, no one, including the FCC and broadcasters, cannot reasonably
"anticipate what will be considered indecent" (24).
Overall the Second Circuit ruled that broadcasters will rule to not air material or censor it
because of the fear of massive fines or loss of licenses. With this vague policy in effect, the
broadcasters will always air on the side of caution. According to the Second Circuit, a vague
policy inherently limits their right to Freedom of Speech.
ARGUMENT

I.

POSITION OF RESPONDENT WITH THEIR ARGUMENT AND ITS MERITS

At stake in FCC v. Fox Television Stations (10-1293) is the constitutionality and strength

of First Amendment free speech protections and the scope of the federal governments
enforcement role in the prohibition of indecent speech through regulated broadcasting outlets.

For more than three decades since the U.S. Supreme Court decision FCC. v. Pacifica
Foundation, 438 U.S. 726 (1978), broadcasters have shouldered the burden of complying with a
patchwork progression of Federal Communications Commission (FCC) regulations directed
toward preventing the utterance of patently offensive language in the content of broadcast
programming. Although the Pacifica decision5concretely outlined which seven specific words
were deemed indecent, subsequent FCC standards towards obscene speech, although contextual
in approach, have emerged as unnecessarily vague forcing broadcasters into a delicate balancing
5
act of compliance with unclear guidelines. In the post-Pacifica environment, an isolated
indecent word may not have brought immediate punitive action by the FCC but the vagueness of
current rules maintains its chilling effect on free speech.
As American cultural norms have shifted and various communications technologies have
advanced and become more pervasive in American life so indeed has the focus by the FCC on
the broadcast industry. Departing from its more restrained enforcement policy in the years
following the Pacifica decision, the FCC at first in 2001 and then again in 2004 sought to guide
the broadcast industry with detailed policies related to broadcast indecency. As an illustration, in
its Industry Guidance on the Commissions Case Law Interpreting 18 U.S.C. 1464, the
commission determined that three factors pushed content in the obscene category including its
explicitness, its repetition and its shock value. In this regard, broadcasters could be fairly
confident that any fleeting and isolated expletives would not be found in violation of the
standards put forth by the FCC.
The shifting sands of FCC regulations catch broadcasters once again in 2004 following
an unscripted moment in the Golden Globe awards, where a rambunctious recipient utters one of
the previously declared indecent seven words. This particular word was deemed by the

commission to be one of the most vulgar, graphic and explicit descriptions of sexual activity
and therefore profane. The resulting policy change by the FCC put broadcasters on notice that
the old standards related to indecent speech were now being viewed through a much narrower
lens.
Ramping up enforcement for indecency, broadcasters found themselves up against fines
levied on a per-program basis. Let one obscene word escape from the mouth of an award winner
in prime time or vulgar pejorative find its way on an early morning talk show and broadcasters
were duly fined. A single slip-up can result in fines approaching millions of dollars.
Broadcasters rightly argue that such a sea change in policy can be seen as completely arbitrary
and without justification. Even though the FCC regulations now find certain expletives deemed
integral to artistic expression or those said during a bona fide news interview to be within
allowed content, the indecency standards are unconstitutionally vague and unduly burdensome.
Broadcasters see themselves unfairly singled out for scrutiny in a world filled with
communications technology options. Do they remain the uniquely pervasive presence in the
lives of all Americans? Pacifica, 438 U.S. at 748. If the FCC goal in the indecent speech rules
is the protection of children, those rules might be seen as woefully out of date in a V-chip
technology world where parents have effective ways of putting barriers in place to thwart
unwanted and harmful images and language from entering the home.
The subjective nature of the FCCs indecency test does not allow broadcasters to operate
efficiently in the boundaries of what is considered restricted speech. The First Amendment
implications are clear if one considers that broadcasters cannot predict with any degree of
certainty whether the FCC will consider even clever euphemisms for the seven prohibited words
within the law. The same concerns can be expressed in the notions of the artistic necessity and

7 7

news interview exceptions. Programming with controversial themes not containing any of the
forbidden expletives is being shelved so as to not run the risk of FCC fines. By necessity,
broadcasters have become overly cautious in terms of program content.

In the current

regulatory environment, broadcasters must continuously weigh the consequences of making

controversial programming available to discerning audiences thus running the risk of
considerable financial penalties if they are found to be in violation of FCC rules. No doubt, the
current rules foster a chilly climate for protected speech.
II.

POSITION OF PETITIONER WITH THEIR ARGUMENT AND ITS MERITS

The FCC recently went to court over a dispute with various television stations including

FOX. Fox brought the FCC to court in order to overturn a policy that the FCC had instated in
order to enforce more strict guidelines with inappropriate conduct on television. Fox felt that the
FCCs new policy was restricting their right to freedom of speech and was vague in nature. The
second circuit court felt this way and overturned the policy.
The FCC originally enhanced this policy because they felt that television networks had
began to push the boundaries on what was permissible and impermissible language on television.
Basically day time television shows had began to move closer and closer to the guidelines of
nighttime television shows. The problem here being that children are susceptible to these shows
during the daytime while they are awake. The FCC felt that this policy was absolutely necessary
in order to protect children from explicit content on television.
The FCC ended up having to fight brought up upon themselves. When the FCC rewrote
this policy they made 2 vital mistakes. First, they wrote this policy in a very vague nature. This
made it very tough for television stations to discern from what was allowed and what wasnt.
Second, the FCC failed to express exactly why their change in policy was necessary. These

8 8

mistakes contributed to the policy getting overturned by the second circuit court. They appealed
the decision in front of the Supreme Court because the FCC felt that the second circuit court
didnt address the issue of whether the policy was necessary to protect children. Now in front of
the Supreme Court, the FCC has showed the court that although the policy was vague it was
absolutely necessary. The Supreme Court felt as though the FCC was correct in their policy,
upholding the policy under the APA because the FCC could have concluded that the new policy
was necessary to protect children. The Supreme Court then remanded the case to the second
circuit court to address the issue of whether the policy violates FOXs Amendment rights.
III.

SUMMARY AND DEFENSE OF OUR OPINION

The fact that the FCCs policy was declared unconstitutional because it is impermissibly

vague is simply not fair. The FCC clearly explained that an indecency finding involved the
following two determinations: (1) whether the material describe[s] or depict[s] sexual or
excretory organs or activities; and (2) whether the broadcast is patently offensive as measured
by contemporary community standards for the broadcast medium, (page 22). Although this
definition of indecency is somewhat vague it does a great job of protecting society (especially
children) from viewing indecent material that they do not want to see. The networks want a
definition with more guidance but they simply need to understand that it is impossible to come
up with a perfect definition of indecency. Especially in the English language where there is so
much slang, it would be truly unconstitutional to just come up with a list of words and phrases
that broadcasting companies were simply not allowed to air.
These broadcasting companies must understand that it is up to them to use good judgment
in what they present to the public. The FCC is only there to monitor shows and make sure the
public is not exposed to anything they do not want to see due to its inappropriate or offensive

nature- they are not there to limit the free speech and unconstitutional rights of the broadcasting
companies. Although the FCC does limit speech by disapproving of certain fleeting expletives,
they have allowed many exceptions such as in bona fide interviews or in situations where
excluding the expletives would take away from the artistic nature of the broadcast being aired.
Although the FCCs definition of indecency is limiting it is not unconstitutional. The FCCs
purpose is to protect children and people from offensive material and limitations must be set to
do so. Although in absolute, the restrictions set may be in violation of the First or Fifth
Amendment of the United States Constitution, in a relative nature the restrictions set are not
constricting and are only meant to be beneficial to society.
CONCLUSION

For the foregoing reasons, the judgment of the court of appeals should
be reversed, and the case should be remanded for further proceedings.
Respectfully submitted this 31st day of July, 2011.

Richard Allridge
Paul Ganev
Michelene Hearey

Stefania Mancino
Christopher Puccio

10