The Future of Free Speech’s Comment to The FCC on Inquiry into Warning Labels for LGBTQ Content

Comments to the Federal Communications Commission

RE: In the Matter of Further Empowering Parents to Protect Their Children and Make Informed Choices About TV Programs Their Children Watch

MB Docket No. 19-41

May 21, 2026

The Future of Free Speech is an independent, nonpartisan think tank located at Vanderbilt University. We work to reaffirm freedom of expression as the bedrock of free and thriving societies through actionable research, empowering tools, and principled advocacy. The Future of Free Speech seeks to create a world where everyone’s right to freedom of expression is protected by law and reinforced by a culture that tolerates diverse viewpoints. 

I. The Public Notice is Unconstitutionally Vague.

The threshold problem with this proceeding is that the Public Notice does not clearly identify what the Commission is asking about. The Notice deploys three different and undefined formulations to describe the content at issue:

• It first refers to “controversial gender identity issues” being “included or promoted in children’s programs.”
• It then refers to “transgender and gender non-binary programming” rated as appropriate for children.
• Finally, it asks whether programs rated TV-Y, TV-Y7, and TV​​-G “may contain the discussion or promotion of gender identity themes.”^[1]

“Transgender and gender non-binary programming” appears to sweep in any program in which a transgender or non-binary character appears, regardless of whether that character’s identity is the subject of any storyline. Under the Commission’s definition, it remains unclear when a character that is non-binary would cross into a “theme” or “promotion.” “Controversial gender identity issues” is conditioning the descriptor on a contested judgment about what is or is not controversial, and the Notice doesn’t provide any guidance or clarity on that either. A government inquiry that seeks to influence speech must give regulated parties fair notice of what speech is at stake, both so they can respond meaningfully and so that other branches of government can assess whether the agency has stayed within its jurisdiction.^[2]

The vagueness in the Notice also makes informed public comment impossible. It is unclear whether the Commission is proposing a descriptor for the mere on-screen presence of a transgender or non-binary person, a descriptor for storylines centered on gender identity, a descriptor for any program a member of the public might characterize as controversial, or some combination of all three.

An administrative record built on that unclear and vague foundation cannot satisfy the reasoned agency action. Courts have repeatedly required that an agency’s framing of an issue “fairly apprise interested persons of the subjects and issues” on which the comment is sought^[3] and have vacated agency action where the agency’s notice failed that test.^[4] Any rule that emerged from this notice would also fail the more general requirement that agency action rest on reasoned decision-making and a record that supports it.^[5]

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^[1] FCC’s Media Bureau Seeks Comment on Further Empowering Parents to Protect Their Children and Make Informed Choices About the TV Programs Their Children Watch, Public Notice, DA 26-392, MB Docket No. 19-41 (rel. Apr. 22, 2026).

^[2] See FCC v. Fox Television Stations, 567 U.S. 239, 253 to 254 (2012); Grayned v. City of Rockford, 408 U.S. 104, 108 to 109 (1972) (vague laws affecting speech are doubly problematic because they chill protected expression and invite arbitrary enforcement).

^[3] United Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1221 (D.C. Cir. 1980) (quoting Am. Iron & Steel Inst. V. EPA, 568 F.2d 284, 293 (3d Cir. 1977).

^[4] See CSX Transportation, Inc. v. Surface Transp. Bd., 584 F.3d 1076 (D.C. Cir. 2009); Time Warner Cable Inc. v. FCC, 729 F.3d 137 (2d Cir. 2013).

^[5] See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).