First Amendment: FCC v. Fox and ABC, et al. LITIGATION/CONTROVERSY

WilmerHale represented respondent ABC, Inc. in the US Supreme Court in FCC v. Fox and ABC, et al. (No. 10-1293), a case challenging the Federal Communications Commission’s broadcast-indecency rules.

At issue was a $1.24 million fine levied for what the FCC determined to be indecent material—specifically, a scene in NYPD Blue in which a woman’s buttocks were shown for seven seconds. The Second Circuit, where WilmerHale also represented ABC, concluded that the FCC’s indecency regime was impermissibly vague and that the FCC’s application of factors for determining indecency was arbitrary and left “little rhyme or reason” to its indecency findings. The Supreme Court granted the FCC’s petition for certiorari.

In addition to reviewing the Second Circuit’s due process holding, the Supreme Court also considered the broadcasters’ arguments that the FCC’s indecency rules violate the First Amendment. The case generated tremendous interest, both in the popular and legal press, and in the nearly twenty amicus briefs that were filed with the Court.

On January 10, 2012, Seth Waxman argued the case in the Supreme Court, and on June 21, 2012, the Supreme Court unanimously ruled in favor of the broadcasters, setting aside the FCC’s findings that television networks violated the agency’s indecency rules.

The WilmerHale team also included Paul Wolfson, Daniel VolchokSonya Lebsack and Ari Holtzblatt.

Supreme Court Argument and Decision

Parties' Briefs

WilmerHale represented respondent ABC, Inc. in the US Supreme Court in FCC v. Fox and ABC, et al. (No. 10-1293), a case challenging the Federal Communications Commission’s broadcast-indecency rules.

At issue was a $1.24 million fine levied for what the FCC determined to be indecent material—specifically, a scene in NYPD Blue in which a woman’s buttocks were shown for seven seconds. The Second Circuit, where WilmerHale also represented ABC, concluded that the FCC’s indecency regime was impermissibly vague and that the FCC’s application of factors for determining indecency was arbitrary and left “little rhyme or reason” to its indecency findings. The Supreme Court granted the FCC’s petition for certiorari.

Read More