FCC v. Fox
On Tuesday the Court heard oral arguments in Federal Communications Commission v. Fox Television Stations. The question before the Court is whether the wording of the FCC’s policy banning “fleeting” indecency – including the “s-word”, the “f-word”, and images of nudity – is unconstitutionally vague. (Lyle recapped the argument here.) The case involves two separate proceedings, one of which has previously been before the Court. Three years ago, in Federal Communications Commission v. Fox Television Stations, the Court determined that the FCC had the authority to broaden its policy from banning repeated uses of profane language to banning any such usage; however, the Court did not decide whether the “fleeting indecency” ban was constitutional. Instead, the case returned to the Second Circuit, which held that the policy as a whole was unconstitutional. Applying that ruling in a separate case, the Second Circuit then struck down the use of indecency regulation against images of nudity on TV.
This week we discuss the regulation of broadcast and other media. Our focus is the indecency policy before the Court in this case, which includes broadcast material that “describe[s] or depict[s] sexual or excretory organs or activities” and is also “patently offensive.” Whether something is “patently offensive” depends on the “full context” of the broadcast, and three principal factors are used to make that determination: (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, [and] whether the material appears to have been presented for its shock value.