The Federal Communications Commission asked the justices to overturn two sweeping rulings by the U.S. appellate court in New York that invalidated two FCC findings on the grounds "the FCC's context-based approach to determining indecency is unconstitutionally vague in its entirety."
The justices accepted one for review, that involving the Fox Network, but limited argument to the question of whether the FCC's enforcement regime violates the free speech provisions of the First Amendment or the due process element of the Fifth Amendment.
U.S. law gives the FCC the power to issue regulations "to prohibit the broadcasting of indecent programming" during daytime. The FCC implemented those statutory provisions by adopting regulations that prohibit broadcast licensees from airing "any material which is obscene" anytime or "on any day between 6 a.m. and 10 p.m."
The commission also was authorized to enforce the statute by, among other things, civil forfeitures and taking violations into account when renewing licenses.
Later the FCC issued the standards under which "indecency" is defined: First, the material at issue "must fall within the subject matter scope of indecency definition -- that is, the material must describe or depict sexual or excretory organs or activities." Second, "the broadcast must be patently offensive as measured by contemporary community standards for the broadcast medium."
In December 2002, Fox broadcast the Billboard Music Awards beginning at 8 p.m. EST. Cher received an "Artist Achievement Award," and used the F-word in her acceptance speech. A year later, Fox again broadcast the Billboard Music Awards. In an exchange between reality celebrities Nicole Richie and Paris Hilton, Richie used both the S-word and the F-word.
The FCC issued an order concluding both broadcasts contained "indecent" language as prohibited by U.S. statute and the commission's indecency regulation, but imposed no sanctions.
A divided panel of the 2nd U.S. Circuit Court of Appeals threw out the FCC finding, ruling that the commission's change of policy regarding isolated expletives was "arbitrary and capricious under the (federal) Administrative Procedure Act" because the agency had "failed to articulate a reasoned basis" for the shift.
The Supreme Court reversed the appeals court, sending the case back down to the appeals court for a new ruling. This time around, the appeals court did not limit its inquiry to the constitutionality of the FCC's isolated-expletives policy as applied to Fox's broadcasts. Instead, the court held the "FCC's indecency policy is unconstitutional" in its entirety "because it is impermissibly vague." The appeals court threw out not just "the FCC's order," but the entire "indecency policy underlying it."
The FCC then asked the Supreme Court for review.
The justices set aside an accompanying case involving the ABC February 2003 broadcast of an episode of the television show "NYPD Blue" entitled "Nude Awakening," apparently pending an eventual ruling in the Fox case.