FCC v. Fox Television Stations, Inc. (10-1293)
argument 10-1293FCC v. Fox Television Stations, Inc.
Supreme Court of the United States
1h 0m
6 speakers
8 chapters
transcribed 4 days ago
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Transcript
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What is the constitutional basis for the FCC’s indecency restriction on broadcast licenses?
We'll hear argument next in Case 10-1293, Federal Communications Commission v. Fox Television Stations. General
Verrilli. MR. Mr. Chief Justice, and may it please the Court, in its previous decision in this case, the Court observed that when a broadcast licensee takes a license for the free and exclusive use of a valuable part of the public domain, it also accepts enforceable public obligations. One of those enforceable obligations is the indecency restriction, which Congress has instructed the Federal Communications Commission to enforce between the hours of 6 AM and 10 PM. Respondents in this case have for years benefited enormously from their free and exclusive use of public spectrum. They argue, however, that neither Congress nor the Commission may, as a condition of their licenses, require that they refrain
from broadcasting indecent material when children are most likely to be in the audience.
But, General Verrilli, it seems to me that this contract notion of yours can only go so far. I mean, if the idea is just we gave them something, now they have to do whatever we say, you wouldn't accept that. So the question is, why is this condition appropriate when many other conditions would not be appropriate? I mean, tell me if I'm wrong, if you would say all conditions are appropriate, but I frankly think you wouldn't.
This condition is appropriate, Justice Kagan, because it has been a defining feature of the broadcast medium from its inception in the 1920s in the Radio Act. It has continued to be a defining feature of this medium throughout its history. And the argument that my friends on the other side are making here is that that norm is That legally enforceable norm, which has been recognized by this Court in Pacifica and has applied since the inception of this medium, needs to be overturned now because circumstances have changed. And I would point out first, if I may,
something — That's one of their arguments. I mean, another one is that you haven't defined it precisely enough, right? Yes, that's — That's a separate
— really a separate argument. That's certainly true, Justice Scalia. And I will certainly get to vagueness if I may just continue on this line. Their argument is that circumstances have fundamentally changed. I want to point out at the outset something I think is significant, which is that their argument would sweep away indecency restriction with respect to radio as well as television. And they would sweep that away in the arguments they're making today without making any showing that circumstances have changed at all with respect to the ubiquity or accessibility of radio. And I think if one looks at the FCC orders that this Court cited in its prior decision in this case, one would see that a lot of the most vile and lewd material really is in radio.
So I just want to put that marker down at the beginning here, because I do think it is quite important. No showing has been made about radio.
I didn't quite understand it. Today, there's either a potential or a fact of — violent and objectionable broadcasting in radio? I didn't quite just understand your
point. Yes, Pacifica itself, Justice Kennedy, was a case about a radio
broadcast. Yes, I understand that,
yes. And the respondents are arguing in this case that Pacifica ought to be overruled because the circumstances that justified its rule no longer obtain. I want to put a marker in at the outset here with respect to radio because I do think it's quite important that But they haven't made any argument that those circumstances are any different with respect to radio. It's just as ubiquitous as it was. There isn't even any argument that there's blocking technology available. And I want to make sure, given the kind of vile material that the record demonstrates has been transmitted over time on radio, that the Court focuses on the breadth of the argument that the respondents are making here. Now, with respect to television, I do think they're making an argument that — that
television broadcasting is no longer uniquely pervasive in the way that it was before.
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Chapters
8 chapters
1
What is the constitutional basis for the FCC’s indecency restriction on broadcast licenses?
0:02–8:39
2
How do the parties argue that historical broadcast norms justify current indecency rules?
8:39–17:38
3
Why do Fox and ABC claim that modern media environments make the Pacifica precedent outdated?
17:38–25:52
4
What role does the V‑chip technology play in the debate over broadcast indecency?
25:52–32:24
5
How does the Court assess whether the FCC’s standards are unconstitutionally vague or arbitrary?
32:24–38:29
6
What are the key differences between broadcast television and cable/Internet regarding indecency enforcement?
38:29–45:28
7
What potential reforms does the government propose to clarify the FCC’s indecency framework?
45:28–53:27
8
How might the Court’s decision impact the future of broadcast regulation and First Amendment rights?
53:27–1:01:15