Sidley Represents Fox Television in Important Fifth Amendment Victory Before the U.S. Supreme Court

It was a wildly productive stretch by anyone’s standards in the legal arena. Carter Phillips and Sidley’s Appellate group achieved three victories before the U.S. Supreme Court in one week alone in June 2012, including the firm’s successful representation of Fox in Federal Communications Commission v. Fox Television Stations. That case featured a variety of unusually colorful characters, including Cher, Nicole Ritchie and a scantily clad actress on the NYPD Blue television drama on ABC.

Sidley had been retained by Fox Television right after the Federal Communications Commission (FCC) issued an order condemning as unlawfully indecent statements made by Cher and Richie using expletives on a music awards program broadcast by the network. The case also involved a sanction imposed by the Commission for an instance of brief rear and side nudity on a 2003 episode of NYPD Blue.

“The broadcast media generally were hoping for a First Amendment ruling that at least would put broadcast television on the same constitutional footing as cable broadcasters,” said Phillips, adding that thus, the FCC could no more punish indecent speech broadcast by one of the networks than it can such speech when run by a cable network, such as the USA Network or the Comedy Channel. The Sidley team of lawyers working on the case also included Mark Schneider, James Young, David Petron and Ryan Morris.

SCOTUS ultimately tossed out the FCC orders against Fox and ABC for publicly broadcasting cursing and nudity, but declined to rule on whether the indecency policy violates the First Amendment. The court held that because the Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent, the Commission’s standards as applied to these broadcasts were unconstitutionally vague in violation of the Fifth Amendment’s Due Process Clause.

“The good news for the networks is that the hundreds, if not thousands, of complaints that had piled up at the Commission during the pendency of the litigation will all be dismissed as the FCC now attempts to formulate a policy that will satisfy Due Process,” said Phillips. He added, “Of course, any new policy will still face a challenge under the First Amendment because it will still be regulating content, which the networks believe violates their rights.”

Phillips had argued the case twice in the United States Court of Appeals for the Second Circuit and twice before the United States Supreme Court. The two court of appeals arguments were broadcast to a national audience by C-Span where the arguments were sprinkled with expletives from both Phillips and the judges on the panel.