Out On a Limb Without Direction: How the Second Circuit’s Decision in Fox v. FCC Failed to Adequately Address Broadcast Indecency and Why the Supreme Court Must Correct the Confusion
Andrew Smith, 27 St. Louis U. Pub. L. Rev. 383 (2008)
(An excerpt is below. To view the full text, please use Westlaw, Lexis, a law library or alternative source.)
In this article, I argue that in order to remove the cloud of confusion over broadcast indecency, the Supreme Court must address and clarify the substantive rights afforded to broadcasters by the Constitution. Part I explores the basic regulatory functions of the FCC. Part II traces the extensive history of the FCC and how its power to regulate broadcasts evolved up until the 2003 Golden Globe Awards. Part III discusses the Golden Globe Awards decision along with the major shifts in FCC policy leading up to Fox v. FCC. Part IV summarizes the majority and dissenting opinion in Fox v. FCC. Part V analyzes the reasoning of the case’s majority and dissenting opinion. Part VI discusses how the court should have decided the case on constitutional grounds and why the court’s failure to do so negatively impacted broadcasters and forced future litigation. Part VII outlines the arguments each party made to the Supreme Court for and against granting the writ of certiorari. Finally, this article analyzes these arguments and discusses the possible routes the Supreme Court may go when the case is heard this fall. If the Supreme Court intends to address the confusion resulting from the decision in Fox, it must address the substantive challenges presented by the networks.
