The Supreme Court heard oral argument today (Jan. 10, 2012) in FCC v. Fox Television Stations, which put squarely before the Court the constitutionality of the FCC’s current indecency enforcement regime. The case came to the Court from decisions by the Second Circuit, involving broadcasts of the Billboard Music Awards and NYPD Blue, which held that the enforcement regime at the center of the FCC’s “crackdown” on broadcast indecency over the last several years had become unconstitutionally vague.

The FCC argued that, whatever inherent judgment calls its “contextual” approach to indecency may present in close cases, the broadcasts at issue were clearly indecent under the current test, which it urged is not unconstitutionally vague. Broadcast television networks argued the Second Circuit correctly held the enforcement regime gives the FCC too much discretion to intrude on editorial judgments by broadcasters and to enforce the indecency prohibition arbitrarily. The current regime, it was argued, allows Commissioners to apply their subjective views of a program’s merit, and to unconstitutionally assess whether it was “essential” for a show to include its potentially indecent elements. They further urged the time has come for the Supreme Court to revisit its landmark Pacifica case, which gives the government greater leeway to regulate indecency in broadcasting in ways that it generally cannot for other media.