In an anti-climactic conclusion to a long-running free speech battle, the U.S. Supreme Court unanimously ruled in Fox Television Stations v. FCC (2012) that the federal government could not take action against a TV network for failing to bleep out "fleeting expletives" from excited celebrities during awards shows in 2002. It was not a free speech decision. Instead, the court found that the FCC violated due process by failing to give broadcasters fair warning, at the time of these broadcasts, that isolated profanity would violate decency regulations. As it happens, the FCC did provide such a warning in 2003, but last week's Supreme Court decision declined to rule on whether FCC actions against subsequent broadcasts would be a free speech problem.
A curiosity was hidden near the end of the opinion. One government argument was that the FCC could not have deprived Fox of an interest in liberty or property without due process of law, because the FCC never imposed a fine. Instead, it placed a document in its files stating that Fox had violated decency regulations and let it off with a warning. The Supreme Court concluded that this wrist slap from the FCC implicated a constitutionally protected interest, because the existence of a past violation might be the basis for a larger fine in the event of a future violation. Fair enough. But then the court gilded the lily: