Th[e] regulatory history [of the FCC] makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent; yet Fox and ABC were found to be in violation. The Commission's lack of notice to Fox and ABC that its interpretation had changed so the fleeting moments of indecency contained in their broadcasts were a violation of §1464 as interpreted and enforced by the agency "fail[ed] to provide a person of ordinary intelligence fair notice of what is prohibited."

The court heard oral arguments [JURIST report] in the case in January. The broadcasters argued that the definition of "patently offensive," which has been created through an amalgamation of past sanctions the FCC has doled out, is unclear. The Solicitor General, appealing the Second Circuit's ruling [decision, PDF; JURIST report] that the FCC's policy is unconstitutionally vague, argued that the policy is clear and provides constructive notice. Attorneys for Fox argued that the current policy is unduly vague and that there are enough outside protections (such as a V-chip) to prevent indecency from reaching those who do not want to hear it. The court granted certiorari [JURIST report] to hear the case in June 2011.