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Supreme Court Reverses Second Circuit Decision in FCC v. Fox TV

By Elenore Cotter Klingler, Litigation News Associate Editor – June 15, 2009

Fleeting expletives on broadcast television are subject to sanction, at least for now. The U.S. Supreme Court, in FCC v. Fox Television Stations, Inc., held by a 5–4 majority earlier this year that the Federal Communications Commission (FCC) did not act in an arbitrary and capricious fashion when it sanctioned the Fox network for airing expletives during two awards shows.


The Court declined, however, to rule on the underlying constitutionality of the so-called “fleeting expletive” policy, leaving the door open for reconsideration of the policy on those grounds.


At issue in the case were utterances from two live broadcasts by the Fox network. In the first one, during a Billboard Music Awards broadcast, entertainer Cher accepted an award and said of her critics, “f**k ‘em.” During another live broadcast, while presenting an award, Nicole Richie, a principal in the television show “Simple Life,” made a joke about getting “cow s**t out of a Prada purse . . . not so f**king simple.”


The FCC issued a Notice of Apparent Liability for each of the broadcasts, finding them actionably indecent despite the fleeting nature of the expletives. The agency relied on its 2004 “Golden Globes” opinion that fleeting expletives are actionable, and though it argued the 2002 and 2003 broadcasts would be actionable under pre-2004 rulings, it did not issue sanctions for the broadcasts.


The FCC, an administrative agency overseen by Congress, has licensing and regulatory authority over the broadcast airwaves. On the grounds that such airwaves are a scarce public resource, the FCC requires broadcast licensees to conform to certain content restrictions, including on “indecency,” sexual or excretory references made during times at which children are likely watching.


The U.S. Supreme Court upheld the FCC’s authority to regulate indecency in the 1978 decision FCC v. Pacifica Foundation, the infamous “seven dirty words” case. Over the next 20-plus years, the FCC issued several rulings clarifying its position on indecency, emphasizing the importance of context in 2001, and noting that passing or fleeting expletives would tend not to be found indecent.


Then, in 2004, the FCC ruled for the first time that an expletive use of f**k or s**t could be actionable, even if used only once. That ruling concerned musician Bono’s use of the phrase “f**king brilliant” during the Golden Globe Awards; the FCC found that any use of the word “f**k” is so inherently sexual and profane that even a fleeting use could be sanctioned. Acknowledging that prior rulings held otherwise, the FCC did not sanction NBC for the broadcast.


The Fox network challenged the FCC’s sanction of the Cher and Richie expletives, arguing that the agency had acted arbitrarily and capriciously by changing course on the fleeting expletives standard between 2001 and 2004.


The Court of Appeals for the Second Circuit ruled in Fox’s favor, and the FCC appealed to the U.S. Supreme Court.


Justice Scalia issued the Court’s 5–4 opinion and reversed the Second Circuit’s decision, holding that the FCC had sufficiently explained its reasoning for the change. Justice Breyer led the primary dissent, arguing that the FCC should have to show more than a summary conclusion that its new policy was consistent with Pacifica.


Like the Second Circuit, the Court declined to rule on the constitutionality of the underlying policy, leaving for another day whether the First Amendment permits government sanction of fleeting expletives.


Though media law practitioners kept a close eye on the proceedings, the Court’s ducking of the First Amendment question took a bit of the excitement out of the case.


“The decision itself is boring from a media law perspective because it’s 100 percent an administrative matter,” says George Freeman, New York, cochair of the ABA Section of Litigation’s First Amendment and Media Litigation Committee.


The division between the majority and dissent involves an interpretation of Motor Vehicle Manufacturers Association of United States, Inc. v. State Farm Mutual Automobile Insurance Co., a landmark administrative case involving “hard look review,” or the degree of deference a court should give an administrative agency.


To avoid a finding of “arbitrary and capricious,” an agency must articulate a basis for its decision, often supported by fact-finding, and generally given deference by the court. In the State Farm case, the Court held that repealing a rule requires the same degree of articulation as enacting a rule.


In FCC v. Fox TV, the majority rejected the Second Circuit's imposition of a higher standard of explanation when an agency reverses prior course, stating “[w]e find no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review.”


The Court held that though an agency must acknowledge that it is changing position and provide good reasons for the new policy, it need not prove “that the reasons for the new policy are better than the reasons for the old one.”


In this instance, the majority found that the FCC had sufficiently examined and explained its reasoning and thus the change in policy was not arbitrary and capricious.


Though some have interpreted the decision broadly, William H. Page, Gainesville, ABA member and professor of administrative law at the University of Florida Levin College of Law, cautions against over-reading the case.


Page says that he doesn't “necessarily see the case as abandoning hard look review,” and finds it “easily distinguishable from State Farm.”


“Scalia’s position is that an agency changing course is just like an ordinary change of rule; no greater scrutiny is required as long as an agency can articulate a justified reason for its decision,” notes Page.


Breyer’s position, on the other hand, might require a different explanation for a changed policy than for adopting an altogether new policy. Page says, however, that the Court has sometimes been more exacting when an agency appears to intrude upon the Constitution, and that the “First Amendment has a lot to do with influencing administrative law principles.”


While the administrative law issues in FCC v. Fox TV are hashed out in lower courts and law reviews, the First Amendment questions are already being briefed for the Second Circuit. George Freeman thinks it is “quite likely that this case will come back to the Supreme Court.” Freeman notes that one of the difficulties in indecency cases is the “illogical situation where over-the-air networks are regulated but cable doesn’t get regulated at all.”


Freeman points to Justice Thomas’s concurrence, which notes the increasing seamlessness of broadcast, cable, and Internet, as an example of the futility of this kind of regulation.


It is “trivial to be spending the Court’s time and the FCC’s time on indecency enforcement when so many other problems need to be addressed,” notes Freeman.


Though the present case was decided by the five member conservative majority, a decision on the constitutionality of the fleeting expletive policy might not be so split.


In particular, Justice Thomas’s concurrence ends with an outright invitation to reconsider Pacifica,a position that Page finds unusual from a procedural perspective and which could indicate a Thomas vote against the policy.


A First Amendment case like this would not likely result in a “typical liberal/conservative split. I would find it very hard to predict what the Supreme Court would do,” says Freeman.


Keywords: FCC v. Fox Television Stations, Inc., First Amendment, media, FCC v. Pacifica Foundation


 
Related Resources
 
  • July 9, 2009 – Shouldn't this be determined as to whether the violating word is being used as an adjective as opposed to verb, noun, or split infinitive??? (;-)

 

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