Digital Media and Data Privacy Law Blog

The U.S. Court of Appeals for the Second Circuit has scheduled to hold oral argument in the Fox v. FCC indecency case on January 13, 2010, at 3:00 pm. 

The Fox case involves review of the FCC's determination that Cher's use of the F-word during the 2002 Billboard Music Awards show and Nicole Richie's use of the F-word and S-word during the 2003 Billboard Music Awards show (both broadcast by the Fox Network and its affiliates) were actionably indecent.  We previously reported about the Supreme Court's decision in the Fox case here. 

Although the Second Circuit previously ruled that the FCC had not provided a "reasoned basis" for changing its prior indecency enforcement policy and imposing liability for a single, "fleeting" expletive, the Supreme Court reversed the Second Circuit and upheld the FCC's decision on procedural grounds.  The Supreme Court found that the FCC had provided a "reasoned basis" for its decision.  The case was then remanded to the Second Circuit with instructions to that court to determine whether the FCC can regulate “fleeting expletives” without violating the First Amendment. 

On remand, the First Amendment question is now directly in front of the Second Circuit.  Therefore, the oral argument scheduled for January 13 is expected to address whether the FCC's "fleeting expletive" indecency policy can survive First Amendment scrutiny.

We will continue to follow this important case and provide updates.