U.S. Supreme Court Ruling Leaves FCC's Ban on Fleeting Expletives in Place

Court Vacates ‘Wardrobe Malfunction’ Fine, Remands Case to 3rd Circuit

In a 5 to 4 ruling handed down April 28, 2009, the U.S. Supreme Court overturned a lower court’s decision that found that the Federal Communications Commission’s (FCC) rule change on “fleeting expletives,” was “arbitrary and capricious.”

Instead, Justice Antonin Scalia’s opinion for the majority called the rule change at issue in Federal Communications Commission v. Fox Television Stations, Inc., 07-582, 2009 WL 1118715 (Apr. 28, 2009), “entirely rational.” However, the Court decided not to address underlying First Amendment concerns, saying to do so would be “a rush to judgment without a lower court opinion.”

The ruling overturned a June 2007 U.S. Court of Appeals decision from the 2nd Circuit that remanded an FCC indecency ruling against Fox Television. The 2nd Circuit found that the commission’s new policy against one-time, unscripted uses of expletives was “arbitrary and capricious” under the Administrative Procedure Act, (APA), 5 U.S.C. 706, because it failed to give a reasoned basis for a significant change in policy. Federal administrative agencies like the FCC are governed by the act, which allows them to revise rules and policies at their discretion, as long as the changes are not “arbitrary and capricious.” In Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983), the U.S. Supreme Court defined that term to mean that “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

Specifically at issue in this case were one-time, fleeting uses of what the Supreme Court called “the F- and S-words” broadcast live by Fox during the 2002 and 2003 Billboard Music Awards. In 2002, upon receiving an award, actress and singer Cher said, “People have been telling me I’m on the way out every year, right? So fuck ‘em.” In 2003 presenter Nicole Richie made reference to her popular television show, saying, “Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.” The FCC received complaints after both broadcasts, and issued notices to Fox that it was in violation of the commission’s new policy prohibiting the broadcast of fleeting expletives. Fox challenged the notices, and CBS Broadcasting, Inc., ABC, Inc., NBC Universal, Inc., NBC Telemundo, and the Center for Creative Voices in Media, Inc., a nonprofit organization of professional writers, directors, producers, performers, and musicians, joined in the court challenge.

The Supreme Court said the lower court misinterpreted the APA as requiring an agency to demonstrate that its new policy has good reason and that the reasons for the new policy are better than the reasons for the old one. “The Act mentions no such heightened standard,” Scalia wrote. “It suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better.” Moreover, Scalia wrote, technological advances that have reduced the costs of “bleeping” offending words make the FCC’s choice to move away from its older rules rational.

According to the Supreme Court opinion, the 2nd Circuit criticized the FCC for failing to give sufficient evidence in support of the contention that children will be harmed by fleeting expletives. The Supreme Court disagreed, saying, “Here it suffices to know that children mimic the behavior they observe—or at least the behavior that is presented to them as normal and appropriate.”

The Supreme Court also disagreed with the 2nd Circuit’s opinion which faulted the FCC for not providing evidence for its contention that allowing the continued use of fleeting expletives would lead to an overall increase in their use, “one at a time.” Scalia wrote, “Even in the absence of evidence, the agency’s predictive judgment … makes entire sense. To predict that complete immunity for fleeting expletives, ardently desired by broadcasters, will lead to a substantial increase in fleeting expletives seems to us an exercise in logic rather than clairvoyance.”

The broadcasters also argued that the FCC went beyond its scope of authority approved in the landmark broadcast indecency case, FCC v. Pacifica Found., 438 U.S. 726 (1978), which held that the First Amendment does not prohibit the FCC from levying limited civil sanctions for the public broadcast of indecent language when contextual factors, such as audience and time of day, are taken into account. That case arose out of a daytime radio broadcast of comedian George Carlin’s “Seven Dirty Words” routine. To the contrary, Scalia wrote that the Court “has never held that Pacifica represented the outer limits of permissible regulation.”

“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,” Scalia wrote.

Justice Kennedy concurred in part and concurred in the result, as did Justice Thomas. Justices Souter, Ginsburg, and Stevens joined in a dissent by Justice Breyer, and Justices Stevens and Ginsburg also wrote their own dissents.

Justice Breyer wrote that the FCC’s explanation for the rule change failed to satisfactorily explain its change in policy, which he distinguished from the creation of a policy in the first instance. Breyer drew a comparison to “an (imaginary) administrator who, explaining why he chose a policy that requires driving on the right-side, rather than the left-side, of the road might say, “Well, one side seemed as good as the other, so I flipped a coin.” But even assuming the rationality of that explanation for an initial choice, that explanation is not at all rational if offered to explain why the administrator changed driving practice, from right-side to left-side, 25 years later.” Breyer said the majority’s holding “could … significantly change judicial review in practice, and not in a healthy direction.”

“Where does, and why would, the APA grant agencies the freedom to change major policies on the basis of nothing more than political considerations or even personal whim?” Breyer wrote.

Breyer said the FCC failed to consider two important issues in justifying its rule change: First Amendment problems and the rule’s impact on smaller broadcasters, which might not be able to afford “bleeping” technology.

“The FCC said next to nothing about the relation between the change it made in its prior ‘fleeting expletive’ policy and the First-Amendment-related need to avoid ‘censorship,’” Breyer wrote. “The FCC had explicitly rested its prior policy in large part upon the need to avoid treading too close to the constitutional line.”

Breyer said that small radio and television stations, fearing fines of up to $325,000 for airing fleeting expletives, might respond by cutting back local coverage of live events. The FCC said “nothing at all” about the concerns of small broadcasters in its consideration of the rule change, Breyer wrote.

The majority dismissed Breyer’s concerns about small stations self-censoring, expressing doubts that small-town broadcasters have a heightened risk of liability under the fleeting expletive rule. “In programming that they originate, their down-home local guests probably employ vulgarity less than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood,” Scalia wrote. The majority also observed that the FCC “went out of its way” to note that there would be good reason to make exceptions to the rule in the case of “breaking news coverage.”

Justice Stevens, who wrote the majority opinion in the 1978 Pacifica case, said in his dissent that the FCC policy change “bears no resemblance to what Pacifica contemplated” because it “improperly equated” words that “may not be polite, but that are not necessarily ‘indecent.’”

“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,” Stevens wrote.

In addition to joining Breyer’s dissent, Justice Ginsburg wrote to highlight the underlying First Amendment issues. “There is no way to hide the long shadow the First Amendment casts over what the Commission has done. Today’s decision does nothing to diminish that shadow,” Ginsburg wrote.

Justice Thomas’ concurrence also addressed underlying First Amendment issues, as he wrote separately to “note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case”: Pacifica and Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), which upheld the doctrine that the FCC could require broadcasters to give multiple sides of public issues “equal time” based on the fact that licensees are granted access to a scarce public resource, the broadcast spectrum.

Thomas wrote that the Pacifica and Red Lion decisions constitute a “deep intrusion into the First Amendment rights of broadcasters, which the Court has justified based only on the nature of the medium.” Thomas observed that the language of the First Amendment does not suggest that there should be exceptions allowing the FCC, or any government body, to regulate speech differently depending on medium or circumstances. Moreover, Thomas wrote, “even if this Court’s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions.”

Thomas wrote that he is “open to reconsideration of Red Lion and Pacifica in the proper case.”

The opportunity to reconsider the FCC’s power to regulate speech under the First Amendment may reach the Court relatively soon. On remand, the 2nd Circuit is likely to take up consideration of those issues.

On May 4, the Supreme Court also vacated the 3rd Circuit’s ruling in CBS v. FCC, 535 F.3d 167 (3d Cir. 2008), the infamous 2004 Super Bowl “wardrobe malfunction” case, remanding it for further consideration in light of its decision in the fleeting expletives case.

The “wardrobe malfunction” case involved halftime performers Janet Jackson and Justin Timberlake. The FCC fined 20 CBS broadcast stations the maximum $27,000 each for airing the brief exposure of Jackson’s breast during the live broadcast of the Super Bowl halftime show, for a total fine of $550,000. In July 2008 the 3rd Circuit overturned the FCC fine, calling it “arbitrary and capricious,” but it will now consider reinstating it. (See “3rd Circuit Strikes Down FCC’s Super Bowl Fine As ‘Arbitrary and Capricious’” in the Summer 2008 issue of the Silha Bulletin.)

According to The Associated Press on April 28, acting FCC Chairman Michael Copps said the decision in Federal Communications Commission v. Fox Television Stations, Inc. was “a big win for America’s families,” saying it “should reassure parents that their children can still be protected from indecent material on the nation’s airwaves.”

Fox Television said it was “optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts.”

For more Silha Bulletin coverage of the fleeting expletives rule change, see “Second Circuit Strikes Down FCC’s ‘Fleeting Expletives’ Rule as ‘Arbitrary and Capricious’” in the Summer 2007 issue, “Broadcasters Challenge Indecency Standards” in the Winter 2007 issue, and “FCC Backtracks on Some Indecency Rulings, Continues to Pursue Others in Court” in the Fall 2006 issue.

– Patrick File
Silha Fellow and Bulletin Editor

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