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In this article, Jenner & Block Partner Paul M. Smith analyzes FCC v. Fox Television Stations, Inc., which is set to be argued before the United States Supreme Court on January 10, 2012. Mr. Smith explains that this is an appeal from the 2010 Second Circuit ruling that the FCC’s “fleeting indecency” policy is unconstitutionally vague and holds broadcast networks to a different standard of decency than other media, including cable channels. He suggests that the case will “almost certainly require the Court to reexamine the constitutional framework established in Pacifica,” the landmark ruling that upheld the Commission’s finding that George Carlin’s classic “seven dirty words” radio monologue was indecent and cemented the FCC’s ability to police the public airwaves. Mr. Smith concludes that, “What is really at stake is the right of the FCC under the First Amendment to regulate broadcast speech differently, and more restrictively, than other media. This could be the case that determines whether ‘broadcast speech’ continues to exist as a distinct category in First Amendment analysis.” Partner Jessica Ring Amunson and Associate Marina K. Jenkins contributed to the writing of the article. Mr. Smith also discussed the case in a video interview on the ABA website “abaNOW.”
Please click here to view the video.