1. Following the Fox I Supreme Court decision in 2009, the case went back down to the Second Circuit Court of Appeals, which ruled that the entire FCC indecency policy was unconstitutional. What constitutional infirmity did the Second Circuit cite in striking down the indecency policy? Explain. Did the Supreme Court in Fox II agree with the Second Circuit Court of Appeals that the FCC indecency policy was unconstitutional in its entirety? Explain.
2. When would an agency ruling be considered “arbitrary or capricious?”
3. Balancing First Amendment considerations (not addressed by the Supreme Court in the Fox II case) with concerns about the social effects of indecent language and behavior, what policy do you personally think the FCC should follow in regulating “fleeting expletives” like those uttered on television by Cher and Nicole Richie? Explain.
4. In commenting on the ongoing indecency debate, The New York Times argued: “The Supreme Court . . . should end all government regulations on the content of broadcasts. Technological change has undermined any justification for limiting the First Amendment rights of broadcast media outlets but not others.”
Explain what the Times meant about technology eliminating the need for government oversight of broadcasting content.
Three episodes of alleged indecency on network television are at issue in this case. First, at the 2002 Billboard Music Awards, televised by Fox, Cher made the following unscripted remark: “I’ve also had my critics for the last 40 years saying that I was on my way out every year. So f*** ‘em.” Second, during the Fox telecast of the 2003 Billboard Music Awards, Nicole Richie made the following unscripted remark: “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.” Third, ABC’s February 25, 2003, telecast of NYPD Blue displayed the nude buttocks of an adult female character for about seven seconds and the side of her breast for a moment, as she was preparing for a shower. A child portraying her boyfriend’s son entered the bathroom during the scene.