Constitutional Law — freedom of speech — due process — fleeting expletives

Listen to this article

Constitutional Law — freedom of speech — due process — fleeting expletives

Where the FCC failed to give fair notice that fleeting expletives and momentary nudity could be found actionably indecent, the Commission’s standards were unconstitutionally vague.

The fundamental principle that laws regulating persons or entities must give fair notice of what conduct is required or proscribed, see, e.g., Connally v. General Constr. Co., 269 U. S. 385, is essential to the protections provided by the Fifth Amendment’s Due Process Clause, see United States v. Williams, 553 U. S. 285, which requires the invalidation of impermissibly vague laws. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Ibid. The void for vagueness doctrine addresses at least two connected but discrete due process concerns: Regulated parties should know what is required of them so they may act accordingly; and precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.
613 F. 3d 317 and 404 Fed. Appx. 530, vacated and remanded.

10-1293 FCC v. Fox Television Stations, Inc. Kennedy, J.; Ginsburg, J., concurring.

Full Text