## Facts

- Federal law prohibits broadcasting “indecent” language, and the FCC enforces this prohibition against broadcast licensees.
- For years after earlier precedent approving indecency regulation in limited circumstances, the FCC generally did not treat isolated (“fleeting”) expletives as actionable indecency.
- In 2004, the FCC announced a new enforcement approach stating that even a single nonliteral use of certain expletives could be actionable indecency.
- Fox aired the 2002 and 2003 Billboard Music Awards live; during the broadcasts, performers used isolated expletives.
- ABC aired an episode of *NYPD Blue* that briefly showed an adult female character’s nude buttocks for several seconds and a momentary side view of her breast.
- The FCC found the Fox and ABC broadcasts indecent under its post-2004 approach.
- On remand after prior Supreme Court review under the APA, the court of appeals held the FCC’s indecency policy unconstitutionally vague as applied and likely to chill speech, and the Supreme Court granted review on the vagueness/fair-notice question.

## Issues

1. Whether the FCC’s indecency policy, as applied to the specific broadcasts at issue, violated due process because it failed to give broadcasters fair notice that fleeting expletives and momentary nudity could be actionable.
2. Whether the Court should resolve broader First Amendment challenges to the indecency regime when the case could be decided on due process grounds.

## Decision

- The Supreme Court held, in a unanimous judgment (with Justice Sotomayor recused), that the FCC violated due process as applied to these broadcasts by failing to give fair notice that fleeting expletives and momentary nudity could be found actionably indecent.
- The Court vacated the adverse judgments and remanded.
- The Court did not decide whether the indecency policy, or the governing statute, is unconstitutional under the First Amendment.
- Justice Ginsburg concurred in the judgment and questioned the continuing validity of earlier precedent sustaining broadcast indecency regulation.

## Legal Principles

- Due process requires regulated parties to have fair notice of what conduct is prohibited before they can be held liable under an enforcement policy.
- A regulatory standard is impermissibly vague as applied when prior agency practice and guidance would not have alerted regulated entities that the specific conduct would be treated as unlawful.
- Courts may resolve cases on due process grounds without reaching broader First Amendment questions when fair-notice defects dispose of the enforcement action.
- An as-applied vagueness holding may invalidate enforcement for the particular instances without determining the constitutionality of the regulatory regime in general.

## Conclusion

The Court set aside the FCC’s indecency findings against Fox and ABC because, at the time of the broadcasts, the FCC had not provided constitutionally sufficient notice that isolated expletives and brief, nonsexual nudity could trigger indecency liability, and it left unresolved any broader First Amendment challenge to the FCC’s indecency framework.


FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012)