Analysis of U.S. Supreme Court Decision Upholding FCC's Prohibition of Fleeting Expletives
In a 5-4 decision released April 28, 2009, the United States Supreme Court has upheld the FCC’s decision to find “fleeting expletives” actionably indecent in certain circumstances. The immediate import of the decision is that even a single occurrence of the F-word or S-word outside of the safe harbor (10:00 pm to 6:00 am) may subject a television or radio station to fines up to $325,000. We previously reported on the oral argument in this case when it occurred back in November.
The case, FCC v. Fox Television Stations, Inc., involved the single use of the F-word by Cher during the 2002 Billboard Music Awards show and the use of the F-word and S-word by Nicole Richie during the 2003 Billboard Music Awards show broadcast by the Fox Network and its affiliates. The FCC found these uses to be actionably indecent because, following its decision in the Golden Globes decision (the Bono case), the 2003 broadcast involved a literal description of excrement and both broadcasts involved the F-word which inherently has a sexual connotation. The FCC did not fine the Fox stations, however, because the broadcast occurred before the FCC announced its new policy regarding fleeting expletives in the Golden Globes case.
Upon review, the Second Circuit Court of Appeals held that the FCC had failed to offer a “reasoned basis” for its change in its new indecency policy. The Second Circuit, accordingly, struck down the new policy as a violation of the Administrative Procedure Act (the “APA”) and noted that it was not necessary to reach the question whether the policy violated the First Amendment. Nonetheless, the Second Circuit observed that it was skeptical that the FCC could articulate a rationale for the policy that would survive a First Amendment challenge.
The FCC, however, sought review of the Second Circuit’s decision by the Supreme Court, and the Court, in a very splintered decision, reversed the Second Circuit and held that the FCC’s “fleeting expletives” policy did satisfy narrow APA review.
Writing for a narrow five-justice majority, Justice Scalia stated that when an agency changes course, the course change is not subjected to a more searching review or any more heightened standard than when the agency had adopted its initial policy. Only good reasons for the new policy need be articulated, not more substantial reasons than those required in the first instance. Even a policy change tinged with constitutional overtones, like the fleeting expletives policy at issue here, is not to be subjected to a more stringent arbitrary-and-capricious standard of review. In those cases, the lawfulness of the policy change under the Constitution must be addressed in a separate constitutional challenge.
Applying this narrow scope of review to the FCC’s decision, Justice Scalia found that the FCC’s decision to find these two broadcasts actionably indecent was not arbitrary or capricious. The FCC signaled it was making a change in the Golden Globes order, and its reasons for expanding the scope of its enforcement activity were deemed rational. According to the majority, it makes sense not to distinguish between literal and nonliteral uses of offensive words, it is rational to believe that the former exception for fleeting expletives would likely lead to more widespread use of offensive language, the fact that it is now easier to bleep out offending words supports the stepped-up enforcement policy, and the FCC’s decision not to impose a forfeiture shows that the agency was not arbitrarily punishing parties without notice.
The Scalia majority rejected both the Second Circuit’s reasoning and the arguments of Fox and the other networks. With respect to the FCC’s reliance on the harm to children, criticized by the Second Circuit, the majority stated that empirical evidence of any such harm is not necessary; all one needs to know is that “children mimic the behavior they observe.” The Court also rejected the network’s contention that the FCC had effectively adopted a presumption of indecency, stating merely that the FCC’s “repeated reliance on context refutes this claim.” The Court likewise did not accept the broadcasters’ characterization that the FCC’s appeal to “context” is a “smokescreen for a standardless regime of unbridled discretion.” Instead, the Court noted that its prior decision in FCC v. Pacifica Foundation approved FCC regulation based on a nuisance rationale under which context is all-important, and the APA does not mandate anything different.
Perhaps most importantly, the Scalia majority rejected the broadcasters’ argument that the FCC had gone beyond the scope of its authority as articulated in Pacifica:
[W]e have never held that Pacifica represented the outer limits of permissible regulation, so that fleeting expletives may not be forbidden. To the contrary, we explicitly left for another day whether “an occasional expletive” in “a telecast of an Elizabethan comedy” would be prohibited. By using the narrowness of Pacifica’s holding to require empirical evidence of harm before the Commission regulates more broadly, the broadcasters attempt to turn the sword of Pacifica, which allowed some regulation of broadcast indecency, into an administrative-law shield preventing any regulation beyond what Pacifica sanctioned. Nothing prohibits federal agencies from moving in an incremental manner.
(Emphases in original.) Justice Scalia’s language suggests that he views Pacifica as only the opening wedge of the FCC’s authority to regulate indecency consistent with the First Amendment and not, as most observers, including the FCC itself for the first 25 years of indecency enforcement, as the confining enclosure limiting the constitutional scope of enforcement.
The majority, like the Second Circuit below, refused to the reach the First Amendment implications of the fleeting expletives policy. Justice Scalia observed that its constitutionality “will be determined soon enough, perhaps in this very case.” In the meantime, Justice Scalia concluded, “any chilled references to excretory and sexual material surely lie at the periphery of First Amendment concern.”
Justice Scalia was joined in the majority opinion by Chief Justice Roberts and by Justices Kennedy, Thomas, and Alito, although Justice Kennedy did not join in the section of the opinion criticizing the dissenting opinions. Both Justice Thomas and Kennedy wrote concurring opinions.
Justice Thomas wrote separately to call into question the ongoing validity of both Red Lion Broadcasting Co. v. FCC and Pacifica on constitutional grounds. He expressed his view that neither spectrum scarcity nor the unique pervasiveness of the broadcast medium, either as a matter of original principles or as a matter of current technologies, supported lesser First Amendment protection for broadcast than for cable of Internet communications.
Justice Kennedy wrote separately to articulate more fully his views on the nature of the reasoned explanation an agency must give when it changes course. In particular, Justice Kennedy would subject agency policy changes to searching and careful review particularly where an agency ignores or countermands its earlier factual findings without reasoned explanation. In this case, however, the FCC did not base its prior policy giving an exception to fleeting expletives on factual findings. Justice Kennedy also made clear that his decision to join the majority was because the Second Circuit based its decision on the agency’s supposed insufficient explanation for its change in policy, and he reserved judgment on whether the FCC’s action is consistent with the Constitution.
Three opinions were also written by the four justices in dissent. Justice Breyer wrote the principal dissenting opinion, in which he was joined by Justices Stevens, Souter, and Ginsburg. The dissent focused on the fact that, in its view, the FCC failed to adequately explain why it changed its fleeting expletives policy. In giving reasons to adopt a changed policy, an agency must focus upon the fact of change where change is relevant. In this case, the change in policy did not address at least two critically important aspects of the problem that actually underlay the FCC’s initial policy on excepting fleeting expletives from enforcement.
First, the FCC’s original policy expressly rested upon the agency’s need to avoid treading too close to the constitutional line. Since Pacifica, the FCC had repeatedly stated, until the Golden Globes decision, that it had understood the Pacifica decision to rest on the repeated occurrence of the indecent words in question. In adopting its new policy, the FCC never explained why the agency changed its mind about where Pacifica drew the line.
Second, Justice Breyer criticized the FCC for failing to consider the potential impact of its new policy upon local broadcasting coverage. He noted that the concept of localism has been a cornerstone of broadcast regulation for decades, yet the FCC failed to address whether smaller or independent broadcasters could afford delay technology or whether they would simply choose to cease providing local coverage of live events where they could be exposed to liability for the uncontrollable outbursts of members of crowds.
Justice Breyer also would have rejected the FCC’s proffered explanations for its new policy—the gradual coarsening of the media, the “first blow” theory of harm to children, and the potential for broadcasters to air single expletives, one at a time, all day long. Each of these explanations was previously known to the agency, and the FCC provided insufficient empirical or other information explaining why these considerations justify the new policy now when they did not justify it before.
Justice Stevens, who wrote the plurality opinion in Pacifica 31 years ago, also wrote a separate dissent. He emphatically disagreed with Justice Scalia’s expansive interpretation of Pacifica:
[W]e upheld the FCC’s adjudication that a 12-minute, expletive-filled monologue by satiric humorist George Carlin was indecent “as broadcast.” We did not decide whether an isolated expletive could qualify as indecent. And we certainly did not hold that any word with a sexual or scatological origin, however used, was indecent.
(Emphasis in original.) In fact, Justice Stevens took particular exception to the FCC’s new view that the F-word and S-word, “in any context and in any form, necessarily describes sex or excrement” (emphasis in original). Justice Stevens observerd:
As any golfer who has watched his partner shank a short approach knows, it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent. But that is the absurdity the FCC has embraced in its new approach to indecency.
While Justice Stevens did not agree with Justice Thomas about the continuing viability of Pacifica, he did appear to signal clearly that, at least with respect to fleeting expletives, he believed the FCC had adopted a “thinly-reasoned and unconstitutional policy.”
Finally, Justice Ginsburg, who had authored one of the seminal Action for Children’s Television cases when she was on the D.C. Circuit Court of Appeals, wrote separately to note that the FCC cannot hide from the “long shadow [of] the First Amendment” and that the Court’s decision “does nothing to diminish that shadow.” Her brief dissent expressed considerable skepticism that unscripted fleeting expletives could be fit within the “tightly cabined” reasoning of Pacifica.
The Court’s decision sends the case back to the Second Circuit where the Second Circuit may decide to reach the constitutional issues now that the administrative law issues have been resolved by the Supreme Court. Previously, the Second Circuit suggested that it would remand the case to the FCC to give the agency an opportunity to support its new policy on constitutional grounds. Whether the lower court will do so now remains to be seen.
At the same time, it is worth recalling that the FCC has petitioned the Supreme Court to review the Third Circuit’s decision in the Super Bowl/Janet Jackson case. The FCC had asked the Court to hold its petition in abeyance until it decided the Fox case. Presumably with its victory, the FCC will now ask the Court to take the case. In that case, like this one, the appellate court did not reach the constitutional issues. Also awaiting a decision before the Second Circuit is the appeal of the FCC’s decision in the NYPD Blue exposed buttocks case, which involved fleeting nudity (rather than fleeting expletives) and was argued in February 2009. That decision could be issued before the Second Circuit takes up the remand in this case. Either of those cases could wind up before the Supreme Court before the Fox case makes it way back.
If this case does come back before the Supreme Court, several justices appear to have signaled their views on the constitutional issues. Justice Thomas would reconsider Pacifica outright, while Justices Stevens and Ginsburg appear to believe that the fleeting expletives policy is unconstitutional under Pacifica. Although neither Justice Breyer nor Justice Souter intimated their views, their willingness to overturn the fleeting expletives policy on administrative law grounds suggests that the policy would face long odds on constitutional grounds with these two justices. That makes five justices who appear to be sympathetic to overturning the fleeting expletives policy on constitutional grounds.
In the meantime, the Court’s decision presents real operational risks to broadcasters. Having been upheld on administrative law grounds by the Supreme Court, the FCC’s fleeting expletives policy, on hiatus as a result of the earlier Second Circuit decision, is now “live” again. Until a court rules on the constitutional validity of the policy, broadcasters will be potentially subject to fines up to $325,000 per occurrence for the broadcast of the F-word or the S-word. Already Acting Chairman Copps has issued a press release extolling the Court’s decision as “a big win for America’s families. . . . The Court’s decision should reassure parents that their children can still be protected from indecent material on the nation’s airwaves.”
Five years ago, many ABC affiliates decided not to air Saving Private Ryan because of the uncertainty engendered by the FCC’s new approach to indecency enforcement. Two and half years ago, many CBS affiliates did the same with respect to a 9/11 special documentary. That uncertainty is not resolved in favor of broadcasters by the Court’s decision. Indeed, the extra caution that broadcasters will now likely be compelled to exercise appeared to be of no moment to Justice Scalia, who opined that any speech being chilled “surely lie[s] at the periphery of First Amendment concern.”
It remains to be seen whether this extra caution becomes the legacy of the FCC’s regime of stepped-up enforcement of indecency or falls by the wayside when the constitutionality of that regime is examined by the federal Courts of Appeals and, potentially, reviewed in the Supreme Court. While the Fox decision is a significant victory for the FCC, the legal fight over the government’s efforts to regulate broadcast indecency is not yet over—stay tuned.
