by Anthony Kennedy

“ Though the Commission claims it will not consider the prior indecent broadcasts “in any context,” it has the statutory power to take into account “any history of prior offenses” when setting the level of a forfeiture penalty. See 47 U. S. C. §503 (b) (2) (E) . Just as in the First Amendment context, the due process protection against vague regulations “does not leave [regulated parties] . ”

“ In a summary order the United States Court of Appeals for the Second Circuit vacated the forfeiture order, determining that it was bound by its Fox decision striking down the entirety of the Commission’s indecency policy. See 404 Fed. Appx., at 533.
The Government sought review of both judgments, see Brief for Petitioners 1, and this Court granted certiorari, 564 U. S. ____ (2011) . These are the cases before us.
A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. ”

“ This Court first reviewed the Commission’s indecency policy in FCC v. Pacifica Foundation, 438 U. S. 726 (1978) . In Pacifica, the Commission determined that George Carlin’s “Filthy Words” monologue was indecent. It contained “‘language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.’” Id., at 732 (quoting 56 F. C. C. 2d 94, 98 (1975) ) . This Court upheld the Commission’s ruling. ”

“ Fox I, 553 U. S., at 515. There is no need, however, for an agency to provide detailed justifications for every change or to show that the reasons for the new policy are better than the reasons for the old one. Ibid.
Judged under this standard, the Court in Fox I found the Commission’s new indecency enforcement policy neither arbitrary nor capricious. Id., at 517. The Court noted the Commission had acknowledged breaking new ground in ruling that fleeting and nonliteral expletives could be indecent under the controlling standards ”

“ As the Court observed when the case was here three Terms ago, it is true that the Commission declined to impose any forfeiture on Fox, see 556 U. S., at 513, and in its order the Commission claimed that it would not consider the indecent broadcasts either when considering whether to renew stations’ licenses or “in any other context,” 21 FCC Rcd., at 13321, 13326. This “policy of forbearance,” as the Government calls it, does not suffice to make the issue moot. ”

“ See, e.g., In re Application of WGBH, 69 F. C. C. 2d, at 1251, 1255 (declining to find broadcasts containing nudity to be indecent and emphasizing the difference between repeated and isolated expletives) ; In re WPBN/ WTOM License Subsidiary, Inc., 15 FCC Rcd. 1838, 1840 (2000) (finding full frontal nudity in Schindler’s List not indecent) . ”