Silencing Fox: The Chilling Effect of the Fcc's Indecent Speech Policy

IntroductionIn its July 13, 2010 decision in Fox Television Stations, Inc. v. FCC, the U.S. Court of Appeals for the Second Circuit struck down the Federal Communications Commission's (FCC) indecent speech policy as unconstitutionally vague, signaling a huge win for broadcasters and others who thought the FCC's policy suppressed constitutionally protected speech.1 The vagueness of the policy guidelines, the Second Circuit reasoned, created a chilling effect that extended beyond the fleeting expletives-single, unexpected uses of expletives-the FCC had intended to regulate.2Fox is an important case in the development of First Amendment speech law.3 As a result of the court's opinion, if the FCC wants to use its regulatory powers against indecent speech, it must now revise its policy such that broadcasters have a clear understanding of what type of speech will, in fact, be deemed indecent.4 Also, in noting that the media landscape has changed since the landmark 1978 U.S. Supreme Court case FCC v. Pacifica Foundation-and questioning whether the level of scrutiny currently placed on the restrictions on broadcast speech is appropriate-the Second Circuit set the stage for the Supreme Court to overturn its seemingly outdated precedent in Pacifica.5Part I of this Comment examines the parameters of the FCC's regulatory powers, with an emphasis on how various courts addressed challenges to the FCC's application of such powers prior to Fox.6 Part II examines how the Second Circuit reached its decision in Fox, focusing on the court's analysis of the FCC's approach to determining which words or expressions are patently offensive.7 Finally, Part III argues that, in reaching its decision in Fox, the Second Circuit appropriately ensured that constitutionally protected speech would no longer be suppressed, and laid the groundwork for the Supreme Court to overturn Pacifica.8I. Determining the FCC's ParametersThe FCC began regulating broadcast speech in 1948 when 18 U.S.C. § 1464 was incorporated into the criminal code.9 Section 1464 states that "[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both."10 Although the passage of the Communications Act Amendments of 1960 authorized the FCC to impose fines for violations of § 1464,11 it was not until 1975 that the FCC first used its authority to regulate speech it ruled indecent.12 In that year, the FCC brought forfeiture proceedings against the Pacifica Foundation, the broadcaster responsible for airing George Carlin's "Filthy Words" monologue, in which the comedian intentionally repeated several expletives.13In those proceedings, the FCC defined indecent speech as "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience."14 The U.S. Court of Appeals for the D.C. Circuit, upon granting Pacifica's petition for review, ruled that the definition was vague and overly broad, and implied that the FCC's policy could lead to censorship of constitutionally protected speech.15 The FCC appealed, leading to the landmark 1978 Supreme Court decision in FCC v. Pacifica Foundation.16In Pacifica, the Supreme Court reversed, ruling that the FCC could impose a fine in the particular context presented in the case.17 In its decision, the Court deliberately distinguished broadcast media from other forms of communication.18 First, the Court noted that broadcast media should receive limited First Amendment protection because, unlike other forms of communication, broadcast media have a "pervasive presence in the lives of all Americans."19 Second, the nature of broadcast television made it "uniquely accessible to children," even those who could not yet read.20 The Court emphasized the narrowness of its holding, however, noting that it did not address whether fleeting expletives were regulable. …