In FCC v. Fox Television Stations, Inc., and a companion case involving ABC, seven Justices ruled that decency standards promulgated by the Federal Communications Commission were so vague that their application to television programs broadcast by the respondents’ affiliates violated the Due Process Clause of the Fifth Amendment. On that basis, the Court voided FCC orders finding that the respondents had violated 18 U.S.C. § 1464 (and imposing what I take to be a civil forfeiture of almost $1.25 million on ABC’s affiliates). Justice Ginsburg concurred in the result on First Amendment grounds, and Justice Sotomayor did not participate in the consideration or decision in the case.
Even for someone outside the world of legal academics, it was an extraordinarily interesting week at the Supreme Court. I found two of this week’s decisions particularly intriguing. The one I will discuss in this post, Knox v. SEIU, signals the Court’s unwillingness to rely on legal fictions to justify state-compelled speech, and it may also signal a willingness to make a deeper commitment to prohibiting involuntary association, as well. The other, FCC v. Fox Television Stations, Inc., is particularly interest to me because it could have important implications in my principal area of practice (which is about as far removed from broadcast licensing as possible). But I will save a discussion of that decision for another day during my stint as a temp for the vacationing Mike Greve.