Supreme Court hears arguments on FCC indecency policy

[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Tuesday. In FCC v. Fox Television Stations, Inc. [transcript, PDF; JURIST report], the court heard arguments on whether the Federal Communications Commission (FCC) [official website] current indecency enforcement regime violates the First or Fifth Amendments [text] to the US Constitution by being too vague to be enforced properly. The case hinges on indecency issues raised in two separate broadcasts, one in which a deliberate nudity scene appeared in a television crime show during prime-time hours, and the other involving celebrities using expletives during live broadcasting events. The FCC's current policy reserves it the right to revoke a broadcaster's license renewal if something "patently offensive" occurs. Broadcasters have argued that the definition of patently offensive, which has been created through an amalgamation of past sanctions the FCC has doled out, is unclear. The Solicitor General, appealing the Second Circuit's ruling that the FCC's policy is unconstitutionally vague [JURIST report], argued that the policy is clear and provides constructive notice and that circumstances have not changed enough to modify the underlying principles of FCC v. Pacifica [text]. Attorneys for Fox argued that the current policy is unduly vague and that there are enough outside protections (such as a V-chip) to prevent indecency from reaching those who do not want to hear it. He also contended that the FCC is clearly failing in its duties to enforce adequately:

And as we sit here today, literally facing thousands and thousands of ginned-up computer-generated complaints that are holding up literally hundreds of TV license renewals, so that the whole system has come to a screeching halt because of the difficulty of trying to resolve these issues. So to say that the system is working well seems to me, at least from the broadcasters' perspective, is to suggest that's just not true.
Fox had support from several other radio and television networks, which also argued against the FCC's policy. Justice Sonia Sotomayor recused herself from this case.

In Knox v. Service Employees International Union, Local 1000 (SEIU) [transcript, PDF; JURIST report], the court heard arguments on whether the First and Fourteenth Amendments [text] allow a state to compel non-union members to pay into union funds that are being used for political advocacy that they disagree with, thus making support of that political stance a condition for employment. There is also a question as to whether notice that this is a condition of employment makes the condition sufficient. However, between the time certiorari was granted and oral arguments, SEIU had decided that they were not going to defend the case further and would argue mootness, due to the original officers of the union no longer holding those positions and that the union has created a new procedure to address the issue at hand. The plaintiffs argued that the court should still rule on the financial award at stake.

 

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