U.S. law provides that “[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined . . . or imprisoned not more than two years, or both.” The Federal Communications Commission (Commission) has been instructed by Congress to enforce this law between the hours of 6 a.m. and 10 p.m.

In the 2002 Billboard Music Awards, broadcast by Fox, the singer Cher exclaimed: “I’ve also had my critics for the last 40 years saying that I was on my way out every year. Right. So f*** ’em.” [During Fox’s] Billboard Music Awards in 2003, Nicole Richie made the following unscripted remark while presenting an award: “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f ***ing simple.” During [NBC’s] 2003 Golden Globe Awards, the singer Bono exclaimed: “This is really, really, f ***ing brilliant. Really, really great,”upon winning the award for Best Original Song.

The Commission had long held that fleeting, or single and unscripted, expletives were not indecent. But after the first two incidents, involving Cher and Ritchie, the Commission changed its policy, holding that that even one-time use could be a violation. It then punished NBC for Bono’s use of the F-word. Even though the Cher and Nicole Ritchie incidents took place before this policy change, the Commission retroactively applied its new policy to them and found Fox to be in violation of it. 

Fox challenged the Commission’s indecency regulations, claiming it did not have fair notice of what was forbidden. The Second Circuit found the policy was vague and, as a result, unconstitutional because it failed to give broadcasters sufficient notice of what would be considered indecent and because the Commission acted inconsistently. The Commission had on occasion found the fleeting use of the F-word and the S-word not indecent provided they occurred during a news interview or were “essential to an artistic or educational work.” This standard left broadcasters guessing.

Questions:

1. Did the Commission give broadcasters fair notice of its policies? 

2. Other than “fair notice,” what other principle did the FCC violate in this case?

3. What is the source upon which the Court relies when it determines that entities must be given fair notice of conduct that is forbidden or required?

4. What is the petition asking the Supreme Court to hear a case called?