While not “effin’ brilliant,” to paraphrase Bono in one of incidents at issue in the “fleeting obscenities” case, the Supreme Court’s overly narrow opinion in FCC v. Fox is correct as far as it goes. Levying millions of dollars of fines based on an after-the-fact policy change and a few ambiguous words from a 1960s regulatory statement clearly fails constitutional fair notice requirements.
Still, the Court missed a wonderful opportunity to expound on free speech over the airwaves and put broadcasters on the same level with respect to the First Amendment as cable companies, internet service providers, and other players on the telecommunications field. The Court also, as Justice Ginsburg noted in her concurrence, missed a golden opportunity to reconsider its unworkable Pacifica precedent. This ruling is not something Paris Hilton should sniff at, but Court watchers expected more.