Today, the Supreme Court issued its long-awaited opinion in FCC v. Fox: http://www.supremecourt.gov/opinions/11pdf/10-1293f3e5.pdf.
Last September, members of the Yale ISP filed an amicus brief in this case and were joined by the New America Foundation, Marvin Ammori, and Professor Monroe Price. The brief was written by Nicholas Bramble, the ISP Law & Media Director, under the supervision of ISP Senior Fellow Priscilla Smith.
The Yale ISP brief opened with the following paragraph:
This case rests on a fairly narrow question concerning the constitutionality of broadcasting regulations designed to suppress and censor indecent speech. However, parties on both sides of this case have argued that this Court, in addressing such indecency regulations, should consider a much broader set of constitutional rationales for spectrum regulation. Broadcasters explicitly suggest that the “scarcity rationale” is properly before the Court. Amici submit this brief in support of neither party to stress that this overreaching is both unnecessary and unwise.
Adhering closely to this rationale, the Supreme Court in FCC v. Fox declined to opine on the "broader issues [that] have been urged for our consideration." The Court instead resolved the case "on fair notice grounds under the Due Process Clause" and found, quite simply, that the FCC had given insufficient notice to broadcasters that Cher's and Nicole Richie's "fleeting expletives" during the Billboard Music Awards and Charlotte Ross's "momentary nudity" in NYPD Blue would trigger enforcement. Rather than specifying standards that the FCC must use to determine whether a broadcast is indecent, the Court's opinion leaves the FCC a fair amount of leeway "to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements."
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Today's opinion may have been unsatisfying to those who wanted a grand showdown on 1) Red Lion v. FCC, 2) the scarcity rationale for limited scrutiny of spectrum regulations, and 3) the future of the First Amendment in a digital age. But we are pleased that the Court did not reach beyond the immediate controversy surrounding fair notice of indecency rules to cast doubt upon a wide range of spectrum-structuring laws and regulations entirely unrelated to indecency. There may be a case in the future where the spectrum scarcity rationale is relevant to the outcome, but this was not that case.