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Hans Bader on the Supreme Court's ruling in FCC v. Fox Television Stations

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Jarrett Dieterle
Legal Intern, Manhattan Institute's Center for Legal Policy

As the Supreme Court's current term winds to an end, much attention has been focused on the Arizona immigration case as well as the fate of ObamaCare. Last week, however, the Court issued a significant ruling in FCC v. Fox Television Stations, holding that Fox was not guilty of "indecency" because the FCC had not given Fox fair notice that the content it aired was, in fact, indecent.

Hans Bader, senior attorney and counsel for special projects with the Competitive Enterprise Institute, analyzed the case and the Court's reasoning behind its decision last week:

In its decision in FCC v. Fox Television Stations, the Supreme Court overturned the FCC's finding that Fox Television was guilty of 'indecency,' ruling that Fox wasn't on notice that it could be held liable for "indecency" over fleeting instances of vulgarity or nudity. In doing so, the Justices clarified that the Constitution protects against vague laws, especially laws that regulate speech, even when those laws don't contain any criminal penalties... The Supreme Court struck down the FCC's finding that Fox was guilty of indecency based on brief instances of vulgarity or nudity, since at the time they happened FCC policy was that only "deliberate and repetitive use" of vulgarity or nudity was punishable "indecency." Because of this, holding the broadcasters responsible violated the Due Process Clause 'void for vagueness' doctrine.

Bader also discussed what the Court's ruling portends for other laws and regulations that potentially suffer from vagueness:

The Supreme Court's ruling has broad implications for businesses subject to civil penalties under federal and state regulations -- and for many federal agencies located here in Washington, D.C. that regulate speech in the workplace or by businesses (such as securities regulations that restrict corporate communications with investors or the public)... If it is not permissible for the FCC to expand its definition of "indecency" to hold Fox responsible based on speech that previously didn't qualify as "indecency", then it certainly should be impermissible for federal bureaucrats or judges to hold employers liable for sexual or racial "harassment" based on speech that previously didn't constitute "harassment" until "harassment" was expansively redefined to include such speech.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


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The Manhattan Insitute's Center for Legal Policy.