The United States Supreme Court ruled on June 21, 2012 that the Federal Communications Commission’s (“FCC”) enforcement of 18 USC Section 1464 ban on the broadcast of “any obscene, indecent, or profane language” was unconstitutional.  Federal Communications Commission, et al. v. Fox Television Stations, Inc., et al., 567 U.S.­___(2012).

Importantly, the Court did not find that the FCC was precluded from enforcing the statute at all.  Instead, the Court found that the FCC had not given “fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.”  On that basis, the Court found that this enforcement regime was unconstitutionally vague.

It remains to be seen whether the FCC can promulgate regulations that will provide sufficient advance notice of what will and will not be deemed obscene.

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