Notice & Comment

Communications: Second Circuit Invalidates FCC Indecency Policy, by Jonathan Rusch

On July 13, the U.S. Court of Appeals for the Second Circuit held in Fox Television Stations v. FCC, that the Federal Communications Commission’s indecency policy “violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.” (Slip op. at 4) While the Supreme Court had held, on appeal from the Second Circuit’s prior decision in this case, that the FCC’s policy was not arbitrary and capricious under the Administrative Procedure Act, it remanded for the Second Circuit to consider the vagueness argument.
The Court of Appeals found the FCC’s standards to be “indiscernible,” and noted that “even the risk of such subjective, content-based decision-making raises grave concerns under the First Amendment ” (id. at 27). It also found that the FCC’s policy “has chilled protected speech” (id. at 29), citing examples from various television and radio programs.
In striking down the FCC’s policy, the court was careful to state that “[w]e do not suggest that the FCC could not create a constitutional policy.” It held only that the FCC’s current policy — which the court stated “has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment” –“fails constitutional muster” (id. at 32).

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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