Federal Communications Commission v. Fox Television Stations, Inc.
The Court ruled that the FCC violated Fox's and ABC's right to fair notice when it punished them for broadcasts that occurred before the agency had clearly said fleeting curse words or brief nudity could be considered indecent.
The decision sidesteps the bigger First Amendment question of whether the FCC can regulate broadcast indecency at all, resolving the case narrowly on due-process grounds instead.
“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 core holding that the FCC's shifting indecency rules deprived broadcasters of fair warning.
How it got here: The Second Circuit twice struck down the FCC's indecency findings as arbitrary and then as unconstitutionally vague; the government sought Supreme Court review of both rulings.
The Case in Depth
What happened
Fox aired live award shows in 2002 and 2003 where celebrities used curse words unscripted, and ABC aired an episode of NYPD Blue in 2003 showing a woman's nude buttocks briefly. The FCC later found all three broadcasts indecent under a new policy adopted after the broadcasts occurred, fining ABC over $1 million and finding Fox in violation without a fine.
The question before the Court
Could the FCC punish Fox and ABC for a curse word and a brief nude scene when its rules at the time hadn't clearly warned broadcasters those things could count as indecent?
The Court's answer
No — the Court ruled that the FCC could not punish Fox and ABC for these broadcasts, because the agency's indecency policy at the time gave no fair warning that a single curse word or a few seconds of nudity would count as actionable indecency. The FCC only adopted that stricter approach in its 2004 Golden Globes Order, after these broadcasts had already aired, so applying it retroactively violated the broadcasters' due-process right to know what was forbidden.
The Court resolved the case entirely on this fair-notice ground and did not reach the broader First Amendment question of whether the FCC's indecency regulation scheme is constitutional, or whether its 1978 Pacifica decision should be revisited, leaving those questions for another day.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Broadcasters gained assurance they can't be punished under indecency rules that shift after the fact without warning, protecting them from surprise fines and reputational harm. But the ruling leaves the FCC's core power to police indecent content intact and free to write clearer rules going forward, so future disputes over the same content remain possible.
What changes now
The FCC's orders against Fox and ABC are set aside, and the cases return to the lower courts, though the Court's fair-notice ruling effectively ends these particular enforcement actions. The FCC remains free to write clearer indecency rules going forward, and courts remain free to review any new or revised policy. The bigger First Amendment question about the FCC's authority to regulate broadcast indecency, including whether Pacifica should be revisited, was left undecided.
What this does not decide
The Court explicitly did not decide whether the FCC's indecency policy violates the First Amendment, whether its current Golden Globes-era policy is constitutional, or whether the 1978 Pacifica decision allowing lighter First Amendment scrutiny for broadcasters should be reconsidered.
Concurrences and dissents
Concurrence — Justice Ginsburg
Justice Ginsburg agreed with the outcome but argued the Court should go further and revisit Pacifica itself, which she believes was wrongly decided when issued. She pointed to technological change and the FCC's inconsistent rulings in these very cases as reasons the decision deserves reconsideration.
How the Court got there
The legal reasoning, step by step
- The Court applied the fair-notice principle under the Due Process Clause, which requires that rules give ordinary people clear warning of what conduct is prohibited before they can be punished for it.
- It explained that vague standards create two problems: people can't know what's expected of them, and enforcers can apply the rules unevenly or unfairly, a danger sharpened when the rule touches speech that might otherwise be protected.
- Examining the FCC's own history, the Court found that under the guidance in place when the broadcasts aired, fleeting or isolated expletives and brief nudity had generally not been treated as indecent, and the agency only changed that position afterward in the Golden Globes Order.
- Because Fox and ABC broadcast their material before that policy shift was announced, the Court concluded neither company had fair warning that isolated curses or a few seconds of nudity could be found indecent.
- The Court rejected the government's arguments that a promise not to use the findings against Fox, or an old 1960 statement about nudity, supplied adequate notice, since the FCC retained power to use the findings later and the 1960 statement was too vague and remote to count as real warning.
- Having found the notice problem dispositive, the Court declined to decide whether the FCC's indecency policy itself violates the First Amendment or whether Pacifica should be reconsidered.