Originally published on June 21, 2012

Keywords: Telecommunications Act, FCC regulation of indecency, criminal sentencing, criminal fines

Today the Supreme Court issued two decisions, described below, of interest to the business community.

Telecommunications Act—Constitutionality of FCC Regulation of Indecency

FCC v. Fox Television Stations, Inc. , No. 10-1293 (previously discussed in the June 27, 2011 Docket Report).

Federal law makes it unlawful to "utter[] any obscene, indecent, or profane language by means of radio communication" (18 U.S.C. § 1464) and directs that "[t]he Federal Communications Commission shall promulgate regulations to prohibit the broadcasting of indecent programming" during specified hours of the day (Public Telecommunications Act § 16(a), Pub. L. No. 102-356, 106 Stat. 954 (1992)). The FCC has implemented those statutory provisions by adopting regulations that prohibit broadcast licensees from airing "any material which is obscene" or, "on any day between 6 a.m. and 10 p.m.[,] any material which is indecent." 47 C.F.R. § 73.3999. In enforcing these regulations, the FCC has declined "to construct a definitive list" of indecent words or content, and instead defines indecency by "reference to the specific context" of a particular broadcast. In re Infinity Broad. Corp., 3 F.C.C.R. 930, 930 ¶ 14 (1987). The Supreme Court held today in FCC v. Fox Television Stations, Inc., No. 10-1293, that this context-based indecency-enforcement regime is unconstitutionally vague.

The case involved two incidents of isolated profanity on the Fox network and one incident of brief nudity on the ABC network. After these incidents, but before the FCC issued Notices of Apparent Liability, the FCC issued an order in an unrelated case, declaring for the first time that fleeting expletives are actionable. It then concluded that the Fox and ABC networks violated this new standard. In subsequent litigation, the Second Circuit vacated the FCC's imposition of liability, finding that the decision to modify its indecency enforcement regime to regulate fleeting expletives was arbitrary and capricious. The Supreme Court reversed and remanded for the Second Circuit to address the broadcasters' constitutional challenges. On remand, the Second Circuit found the FCC's fleeting-incidents standard unconstitutionally vague and invalidated it in on its face.

In an opinion by Justice Kennedy that was joined by all other members of the Court except Justice Ginsburg (who concurred in the judgment) and Justice Sotomayor (who was recused), the Supreme Court affirmed the Second Circuit. The Court found that the FCC had failed to give Fox and ABC fair notice that fleeting expletives and momentary nudity could be found actionably indecent, and that the FCC's standards were unconstitutionally vague as applied. In reaching this conclusion, the Court explained that the-void-for-vagueness doctrine addresses two connected but discrete due process concerns: first, regulated parties must know what is required of them so they may act accordingly; and second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. Applying this two-factor test in context, the Court found that the FCC's lack of notice to Fox and ABC of its changed interpretation of its indecency policy had failed to give them "fair notice of what is prohibited" and thus ran afoul the first concern underlying the vagueness doctrine. Slip op. 13. It thus declined to reach the second prong of the vagueness test.

The Court noted three limits on the scope of its decision. First, the Court explained that it had resolved the case strictly on fair-notice grounds under the Due Process Clause and expressly declined to address the First Amendment implications of the FCC's indecency policy. Second, it explained that it had ruled only that Fox and ABC lacked notice under the particular circumstances of the case and expressly declined to address the constitutionality of the FCC's current indecency policy as a whole. Finally, in light of its as-applied approach to the case, the Court stressed that the FCC is free to modify its current indecency policy and that the lower courts are free to review any such policy anew for constitutional infirmities.

In her concurring opinion, Justice Ginsburg expressed the view that the Court's decision in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), should be reconsidered, suggesting that she would find the FCC's current indecency policy unconstitutional on its face.

The Court's holding suggests that void-for-vagueness arguments continue to have substantial force in civil cases involving the First Amendment. The case therefore has particular importance for all broadcasters regulated by the FCC. But given the generality of the Court's reasoning, the Court's ruling arguably extends to any case in which the vagueness doctrine's "fair notice" component is relevant, such as those involving civil fines or civil liability predicated on a departure from previously-settled legal principles.

Criminal Sentencing—Judicial Factfinding in the Context of Criminal Fines

Southern Union Company v. United States , No. 11-94 (previously discussed in the November 28, 2011 Docket Report).

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that under the Sixth Amendment "any fact," other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum "must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490. Today, in Southern Union Co. v. United States, No. 11-94, the Supreme Court ruled that this constitutional right extends to criminal fines.

This decision will enable companies to invoke Apprendi when they face criminal fines substantial enough to trigger the Sixth Amendment right to a jury trial.

Southern Union Co., a natural gas distributor, was found guilty by a jury of knowingly storing liquid mercury without a permit in violation of the Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. § 6928(d). The RCRA imposes "a fine of not more than $50,000 for each day of violation." Id.. At sentencing, the maximum fine was set at $38.1 million on the basis that Southern Union had violated the RCRA for 762 days, as stated on the verdict form. Southern Union argued that this violated Apprendi because the jury was not asked to determine the precise duration of the violation. The government acknowledged that this fact had not been submitted to the jury, but argued that Apprendi does not apply to criminal fines. The district court held that Apprendi does apply to fines, but that the jury had made the requisite factual determination. The First Circuit affirmed, but on the ground that Apprendi was inapplicable to criminal fines, creating a circuit split.

The Supreme Court reversed. In an opinion authored by Justice Sotomayor and joined by Chief Justice Roberts as well as Justices Scalia, Thomas, Ginsburg, and Kagan, the Court held that Apprendi's "core concern" with "reserv[ing] to the jury the determination of facts that warrant punishment for a specific statutory offense" applied "whether the sentence is a criminal fine or imprisonment or death." Slip op. 4. The Court rejected the government's argument that Apprendi's reference to the "physical deprivation of liberty" limited its scope to imprisonment. The relevant distinction, it held, was not between criminal fines and other types of punishment, but rather between punishments that are sufficiently severe to trigger the Sixth Amendment right to a jury trial and those that are not. Thus, "[w]here a fine is substantial enough to trigger that right, Apprendi applies in full." Id. at 7. The Court based its decision largely on the historical role that juries played in prosecutions for offenses that "peg[ged] the amount of a fine to the determination of specified facts." Id. at 10.

Justice Breyer, joined by Justices Kennedy and Alito, dissented. In addition to taking a different view of juries' historical role and of the distinction between a fact that is an "element" of the offense and one that is merely a sentencing factor, the dissent warned of practical difficulties that it believed would flow from the Court's holding.

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