Lower Court Holding in Fox v. FCC
Decision of the Second Circuit U.S. Court of Appeals
This petition for review comes before us on remand from the Supreme Court. Previously we held, with Judge Leval dissenting, that the indecency policy of the Federal Communications Commission (FCC) was arbitrary and capricious under the Administrative Procedure Act (APA). The Supreme Court reversed, upholding the policy under the APA and remanding for consideration of Petitioners’ constitutional arguments. We now hold that the FCC’s policy violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here. Background Section 1464 of Title 18 of United States Code provides…
