Essay: The Enduring and Universal Principle of “Fair Notice” – Article by Theodore J. Boutros, Jr. & Blaine H. Evanson

From Volume 86, Number 2 (January 2013)

The Supreme Court held in FCC v. Fox Television Stations, Inc. that the due process clause of the Fifth Amendment precludes the Federal Communications Commission from punishing Fox for its broadcasting of “fleeting expletives,” because the regulations did not give Fox “fair notice” that such conduct could subject it to punishment. The result surprised many court watchers, who were expecting a key First Amendment ruling on whether minor obscenities uttered or shown on TV were protected speech. But the Court’s holding (and that of a similar case, Christopher v. SmithKline Beecham Corp.)–which was based on the doctrine that defendants must receive “fair notice” of the conduct that can subject them to punishment–is supported by nearly a century of established due process jurisprudence. The fair notice requirement is an essential protection of the due process clause, and shields all defendants from unfair and arbitrary punishment.

In requiring fair notice of a civil penalty imposed by a regulatory agency, Fox and Christopher remove any doubt that where a defendant–whether criminal or civil–faces punishment, the standards of conduct giving rise to such punishment must be reasonably discernible before the punishment is imposed. The Court specified that “laws which regulate persons or entities must give fair notice of conduct that is forbidden or required,” thus reaffirming the constitutional mandate “that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” In particular, courts that have long grappled with how to apply the Supreme Court’s fair notice doctrine to the availability of punitive damages should look to the clear holdings in Fox and Christopher, which almost certainly preclude punitive damages liability against defendants based on liability standards that were not clearly established at the time of the challenged conduct.



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