Supreme Court Will Determine Constitutionality Of FCC Indecency Policy

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The U.S. Supreme Court June 27 granted the FCC's petition for a writ of certiorari and agreed to determine whether the Commission's “current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.”

The case before the Supreme Court, FCC v. Fox Television Stations, No. 10-1293, arose from two rulings of the U.S. Court of Appeals for the Second Circuit. In the first, Fox Television Stations Inc. v. FCC [50 CR 1365], the Second Circuit found the FCC's policy unconstitutionally vague, causing television stations to be either extremely cautious or face thousands of dollars of potential fines. In the second, a non-precedential summary order, the court of appeals vacated a 2008 forfeiture order [44 CR 376] against 44 ABC-affiliated television stations for airing an episode of “NYPD Blue” that depicted a woman's nude buttocks.In the Fox case, the FCC levied fines against stations for “fleeting, unscripted utterances” during live broadcasts. Although the“NYPD Blue” episode involved scripted nudity, the case turned on an application of the same context-based indecency test that the Second Circuit already found “impermissibly vague.” Justice Sotomayor took no part in the consideration or decision of the writ.