This month we discuss Fox Television Stations, Inc. v. FCC,1 a decision in which the U.S. Court of Appeals for the Second Circuit, following remand from the U.S. Supreme Court, struck down the Federal Communications Commission’s (FCC) indecency policy as unconstitutionally vague. In its earlier decision, the Second Circuit had found the policy—which, in certain contexts, proscribed the broadcast of a single expletive—arbitrary and capricious under the Administrative Procedure Act (APA).2 The Supreme Court reversed and remanded for consideration of the petitioners’ constitutional challenges.3

In its decision on remand, written by Judge Rosemary S. Pooler and joined by Judges Pierre N. Leval and Peter W. Hall, the Second Circuit granted the petition for review and vacated the FCC’s order against the petitioners. The court found the policy underlying the order unconstitutional because it failed to provide adequate guidance, thereby creating a chilling effect that extended beyond the “fleeting expletives” the agency intended to regulate. “By prohibiting all ‘patently offensive’ references to sex, sexual organs, and excretion without giving adequate guidance as to what ‘patently offensive’ means,” the court wrote, “the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive.”4

Procedural History

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