Vagueness, due process, first amendment: 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 vague; the fundamental principle that laws regulating persons or entities must give fair notice of what conduct is required or proscribed, see, e.g., Connally v. General Constr. Co., 269 U. S. 385, 391, is essential to the protections provided by the Fifth Amendment’s Due Process Clause, see United States v. Williams, 553 U. S. 285, 304, which requires the invalidation of impermissibly vague laws. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” Ibid. The void for vagueness doctrine addresses at least two connected but discrete due process concerns: regulated parties should know what is required of them so they may act accordingly; and precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.
These concerns are implicated here, where the broadcasters claim that the lengthy procedural history of their cases shows that they did not have fair notice of what was forbidden. Under the 2001 Guidelines in force when the broadcasts occurred, a key consideration was “whether the material dwelled on or repeated at length” the offending description or depiction, but in the 2004 Golden Globes Order, issued after the broadcasts, the Commission changed course and held that fleeting expletives could be a statutory violation. It then applied this new principle to these cases. Its lack of notice to Fox and ABC of its changed interpretation failed to give them “fair notice of what is prohibited.” Williams, supra, at 304; it is necessary to make three observations about this decision’s scope. First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy or reconsider Pacifica at this time. Second, because the Court rules that Fox and ABC lacked notice at the time of their broadcasts that their material could be found actionably indecent under then-existing policies, the Court need not address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and subsequent adjudications. Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements and leaves courts free to review the current, or any modified, policy in light of its content and application (U.S.S.Ct., 21.06.12, FCC v. Fox Television Stations, Inc., J. Kennedy).