4/28. The Supreme Court issued its divided opinion
[72 pages in PDF] in FCC v. Fox., reversing the judgment of
the U.S. Court of Appeals (2ndCir).
This is a broadcast profanity case involving the Federal Communications
Commission's (FCC) regulation of fleeting expletives.
The FCC issued an order that fined broadcasters for fleeting
expletives. The Court of Appeals vacated and remanded, on the grounds
that the FCC's new fleeting expletives policy is arbitrary and capricious
under the Administrative Procedure Act (APA) for failing to articulate a
reasoned basis for the change in policy. The Supreme Court reversed, by a
5-4 split, on the basis APA does not preclude unexplained shifts of long
Notably, neither court issued a holding as whether the FCC's policy or
order violate the First Amendment. Although, the Court of Appeals
majority wrote that "we are skeptical that the Commission can
provide a reasoned explanation for its ``fleeting expletive´´ regime that
would pass constitutional muster". Also, while the Supreme Court
majority decided not to decide the constitutional issue, it appears that
in a future case the majority would find the FCC's fleeting expletives
policy, if not its entire broadcast speech regulatory regime, is
The FCC's fleeting expletives policy has won a fleeting reprieve. The
case is remanded to the Court of Appeals. It may now take up the
constitutional issue, and vacate the FCC order on First Amendment
grounds. The Court of Appeals cannot, however, overturn the Supreme Court
precedent relied upon by the FCC.
U.S.C. § 1464 provides in full that "Whoever utters any obscene,
indecent, or profane language by means of radio communication shall be
fined under this title or imprisoned not more than two years, or
In 1978, the Supreme Court issued its opinion
in FCC v. Pacifica Foundation, 438 U.S. 726, upholding the FCC's
order penalizing the broadcast of a dirty words monologue by a comedian,
The Supreme Court wrote that "We have long recognized that each
medium of expression presents special First Amendment problems. ... And
of all forms of communication, it is broadcasting that has received the
most limited First Amendment protection. Thus, although other speakers
cannot be licensed except under laws that carefully define and narrow
official discretion, a broadcaster may be deprived of his license and his
forum if the Commission decides that such an action would serve ``the
public interest, convenience, and necessity.´´"
The Supreme Court has offered various rationales for heightened
regulation of broadcast speech, including scarcity of spectrum (see for
example, 1969 opinion
in Red Lion v. FCC, 395 U.S. 367), and pervasiveness of broadcast
media (Pacifica). In Pacifica, the Supreme Court cited the
rationale that "the broadcast media have established a uniquely
pervasive presence in the lives of all Americans".
FCC Order. On November 6, 2006, the FCC adopted and released an
[36 pages in PDF] regarding complaints that four broadcast television
programs contained indecent and/or profane material within the meaning of
§ 1464. This order is FCC 06-166.
The Order concluded, among other things, that comments made by Nicole
Richie during "The 2003 Billboard Music Awards" and by Cheryl
LaPiere during the "The 2002 Billboard Music Awards" were
indecent and profane. Both used the word fuck in unscripted live
See also, stories titled "FCC Releases Indecency Orders" in TLJ Daily
E-Mail Alert No. 1,332, March 20, 2006, and "FCC Releases Order
on Remand Regarding Broadcast Indecency" in TLJ Daily
E-Mail Alert No. 1,484, November 7, 2006.
Court of Appeals. Fox, CBS, and ABC filed petitions for review
of the FCC's order.
On June 4, 2007, the U.S. Court
of Appeals (2ndCir) issued its divided opinion
[53 pages in PDF] finding that "the FCC's new policy sanctioning
``fleeting expletives´´ is arbitrary and capricious under the
Administrative Procedure Act for failing to articulate a reasoned basis
for its change in policy. Accordingly, the petition for review is
GRANTED, the order of the FCC is VACATED, and the matter is REMANDED to
the agency for further proceedings consistent with this opinion."
The Court, relying on precedent from the 2nd Circuit and the DC
Circuit, wrote that the FCC violated the APA by changing its policy,
without offering an explanation for the change.
The Court of Appeals did not decide any of the Constitutional issues.
However, it wrote in extensive dicta that "we are skeptical that the
Commission can provide a reasoned explanation for its ``fleeting
expletive´´ regime that would pass constitutional muster".
The Court wrote, in dicta, that "Whatever merit these arguments
may have, they cannot sway us in light of Supreme Court precedent. ...
Nevertheless, we would be remiss not to observe that it is increasingly
difficult to describe the broadcast media as uniquely pervasive and
uniquely accessible to children, and at some point in the future, strict
scrutiny may properly apply in the context of regulating broadcast
It added that "The proliferation of satellite and cable
television channels -- not to mention internet-based video outlets -- has
begun to erode the ``uniqueness´´ of broadcast media, while at the same
time, blocking technologies such as the V-chip have empowered viewers to
make their own choices about what they do, and do not, want to see on
It concluded that "technological advances may obviate the
constitutional legitimacy of the FCC’s robust oversight."
See also, story
titled "2nd Circuit Vacates and Remands FCC Profanity Order" in
E-Mail Alert No. 1,590, June 4, 2007.
Supreme Court Majority Opinion. The Supreme reversed and
remanded in a 5-4 split. Justice Scalia wrote the majority opinion in
which Justices Roberts, Thomas, Alito and Kennedy joined. (Justice
Kennedy did not join in one section that responded to dissenting
The majority ruled solely on the APA issue. Scalia wrote, "We
decline to address the constitutional questions at this time."
Scalia wrote that the APA "sets forth the full extent of judicial
authority to review executive agency action for procedural
correctness". He continued that previous Supreme Court opinions have
made clear that a court is not to substitute its judgment for that of the
Scalia noted that the 2nd Circuit "relied in part on Circuit
precedent requiring a more substantial explanation for agency action that
changes prior policy." These cases were New York Council, Assn.
of Civilian Technicians v. FLRA, 757 F. 2d 502, and NAACP v. FCC,
682 F. 2d 993 (1982).
He concluded, "We 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 Act mentions no such heightened
He elaborated, "And of course the agency must show that there are
good reasons for the new policy. But it need not demonstrate to a court’s
satisfaction that the reasons for the new policy are better than the
reasons for the old one; 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, which the conscious change of course adequately
indicates. This means that the agency need not always provide a more
detailed justification than what would suffice for a new policy created
on a blank slate. Sometimes it must -- when, for example, its new policy
rests upon factual findings that contradict those which underlay its
prior policy; or when its prior policy has engendered serious reliance
interests that must be taken into account. ... It would be arbitrary or
capricious to ignore such matters. In such cases it is not that further
justification is demanded by the mere fact of policy change; but that a
reasoned explanation is needed for disregarding facts and circumstances
that underlay or were engendered by the prior policy."
Scalia also wrote that the underlying First Amendment implications do
not affect the APA arbitrary and capricious analysis. He added that
"lawfulness under the Constitution is a separate question to be
addressed in a constitutional challenge." (Footnote omitted.)
Then, applying these standards, Scalia concluded that the FCC did not
act in an arbitrary or capricious manner.
Scalia also rejected the argument that the FCC's fleeting expletive
policy will harm small and local broadcasters. He offered the flippant
argument that small town broadcasters cannot afford "foul-mouthed
glitteratae from Hollywood".
Finally, Scalia declined to address the First Amendment issue.
"The Second Circuit did not definitively rule on the
constitutionality of the Commission's orders, but respondents nonetheless
ask us to decide their validity under the First Amendment."
He wrote that the Constitutional issues "will be determined soon
enough, perhaps in this very case. ... We see no reason to abandon
our usual procedures in a rush to judgment without a lower court opinion.
We decline to address the constitutional questions at this time."
Thomas Concurrence. Justice Clarence Thomas wrote that he
concurred as to the interpretation of the APA.
He wrote his concurrence, however, to disclose and explain his intent,
once the First Amendment issue is properly before the Supreme Court, to
abandon the Supreme Court's acquiescence to FCC regulation of broadcast
speech in a manner that is greater than, and inconsistent with,
regulation of other speech.
Justice Thomas appears ready and anxious to pound wooden stakes
through the hearts of both Red Lion and Pacifica.
(He did not focus on the seminal 1943 opinion
of NBC v. FCC, 319 U.S. 190.)
"I write separately, however, 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. ... Red Lion
and Pacifica were unconvincing when they were issued, and the passage of
time has only increased doubt regarding their continued validity."
Thomas reviewed the scarcity and pervasiveness rationales, and concluded
that these opinions expound a "legal rule that lacks any textual
basis in the Constitution", and that they possess "logical
weakness" as well as "doctrinal incoherence".
He continued that "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. Broadcast
spectrum is significantly less scarce than it was 40 years ago."
Moreover, wrote Thomas, "traditional broadcast television and
radio are no longer the ``uniquely pervasive´´ media forms they once
were. For most consumers, traditional broadcast media programming is now
bundled with cable or satellite services. ... Broadcast and other video
programming is also widely available over the Internet. ... And like
radio and television broadcasts, Internet access is now often freely
available over the airwaves and can be accessed by portable computer,
cell phones, and other wireless devices. ... The extant facts that drove
this Court to subject broadcasters to unique disfavor under the First
Amendment simply do not exist today."
He concluded that "These dramatic changes in factual
circumstances might well support a departure from precedent under the
prevailing approach to stare decisis", and that "I am open to
reconsideration of Red Lion and Pacifica in the proper case."
Other Justices' Views on the First Amendment. Justice Breyer
wrote a dissent joined by Justices Stevens, Ginsburg, and Souter. He
wrote that "I would not now foreclose, as the majority forecloses,
our further consideration of" the Constitutional issues.
Justice Ginsburg wrote a dissent "only to note that 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
Justice Kennedy, part of the majority, wrote that "I agree with
the Court that as this case comes to us from the Court of Appeals we must
reserve judgment on the question whether the agency's action is
consistent with the guarantees of the Constitution."
Breyer Dissent. Justice Breyer wrote a long dissent on the APA
issue. He concluded that the FCC "failed adequately to explain why
it changed its indecency policy from a policy permitting a single
``fleeting use´´ of an expletive, to a policy that made no such
exception. Its explanation fails to discuss two critical factors, at
least one of which directly underlay its original policy decision. Its
explanation instead discussed several factors well known to it the first
time around, which by themselves provide no significant justification for
a change of policy. Consequently, the FCC decision is ``arbitrary,
capricious, an abuse of discretion.´´"
Stevens Dissent. Justice Stevens also wrote a dissent on the
APA issue. First, he wrote that "the Court espouses the novel
proposition that the Commission need not explain its decision to discard
a longstanding rule in favor of a dramatically different approach to
He also wrote that the FCC is essentially "an agent of
Congress" to which the Congress delegates legislative authority.
He continued that "The FCC, like all agencies, may revise its
regulations from time to time, just as Congress amends its statutes as
circumstances warrant. But the FCC is constrained by its congressional
mandate. There should be a strong presumption that the FCC's initial
views, reflecting the informed judgment of independent commissioners with
expertise in the regulated area, also reflect the views of the Congress
that delegated the Commission authority to flesh out details not fully
defined in the enacting statute."
He continued that the rules adopted after Pacifica "have
been in effect for decades and have not proved unworkable in the
He added that "broadcasters have a substantial interest in
regulatory stability; the threat of crippling financial penalties looms
large over these entities. ... The FCC's shifting and impermissibly vague
indecency policy only imperils these broadcasters and muddles the
regulatory landscape. It therefore makes eminent sense to require the
Commission to justify why its prior policy is no longer sound before
allowing it to change course."
Reaction. FCC Chairman Michael Copps stated in
that "Today's Supreme Court decision in Fox is a big win for America's
families. The Court recognized that when broadcasters are granted free
and exclusive use of a valuable public resource, they incur enforceable
public interest obligations. Although avoiding the broadcast of indecent
language when children are likely to be watching is one of those core
responsibilities, few can deny the blatant coarsening of programming in
recent years. The Court's decision should reassure parents that their
children can still be protected from indecent material on the nation's
Adam Thierer, of the Progress &
Freedom Foundation (PFF), stated in a release
that "While the Court decided this case on purely procedural
grounds, its failure to address the constitutional issues at stake will
leave the First Amendment freedoms of both media creators and consumers
in this country uncertain until another case winds its way up to the
court, which could take years."
"Practically speaking, as Justice Thomas noted, what's the point
of continuing to apply a censorship regime to one of the oldest mediums
-- broadcast TV and radio -- when kids are flocking to unregulated
mediums in large numbers? At this point, we're doing little more than
protecting adults from themselves and destroying over-the-air
broadcasting in the process."
Thierer added that "Although new media technologies and platforms
are not covered currently by FCC content controls, the specter of regulation
now haunts all media as platforms continue to converge and broadcast
content gets repurposed on other platforms."
Finally, what makes the Court's ruling even less sensible is that all
parents have an extensive array of tools and strategies at their disposal
to control media in their homes and in their lives of the children. That
is especially the case for broadcast television programming, which is
easier to control than ever before. The Court has held that user
empowerment and private blocking solutions should shield the Internet
from content regulation. Why shouldn't the same principle apply to
Harold Feld, of the Public
Knowledge, wrote in a release that this
opinion "should have significant impact on the pending
Comcast/BitTorrent case now pending in the DC Circuit."
This case is FCC, et al. v. Fox Television Stations, Inc., et al.,
U.S. Supreme Court, Sup. Ct. No. 07-582, a petition for writ of
certiorari to the U.S. Court of Appeals for the 2nd Circuit, App. Ct.
Nos. 06-1760-ag, 06-2750-ag, and 06-5358-ag. The Court of Appeals heard
petitions for review of a final order of the FCC. See also, Supreme Court