FCC, Fox, And That Other F-Word

Article by John P. Elwood , Jeremy C. Marwell and Eric A. White *

When Solicitor General Donald Verrilli stepped to the podium on January 10, 2012, Court watchers were poised for a blockbuster. After FCC v. Fox Television Stations made its first trip to the Supreme Court on administrative-law grounds during October Term 2008, the U.S. Court of Appeals for the Second Circuit had struck down the indecency policy of the Federal Communications Commission as unconstitutionally vague. The parties had fully briefed not only the due process theory adopted by the court of appeals, but also the larger issue of whether the Court should overrule FCC v. Pacifica Foundation,¹ finally discarding the Court's increasingly dated tolerance for restrictions on broadcast television and radio networks that it would not condone for other media. The Second Circuit had all but urged that disposition by emphasizing that "we face a media landscape that would have been almost