Supreme Court punts on big questions in Fox Television indecency case
FCC v. Fox Television Stations, No. 10-1293
Held: Because the Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the Commission’s standards as applied to these broadcasts were vague . . . Under the 2001 Guidelines in force when the broadcasts occurred, a key consideration was “whether the material dwell[ed] on or repeat[ed] at length” the offending description or depiction, but in the 2004 Golden Globes Order, issued after the broadcasts, the Commission changed course and held that fleeting expletives could be a statutory violation.
AP: High court throws out FCC indecency policy
Instead, the court concluded only that broadcasters could not have known in advance that obscenities uttered during awards show programs and a brief display of nudity on an episode of ABC’s NYPD Blue could give rise to sanctions.
Eugene Volokh at the Volokh Conspiracy: