FCC v. Fox Television Stations

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Contents

[edit] Briefs and Documents

Docket: 07-582

Issue: Whether the FCC provided an adequate explanation, or instead acted arbitrarily and capriciously, in changing its policy to permit isolated uses of expletives on broadcast television to be considered “indecent” under federal law.

Merit briefs

Amicus briefs

Oral Argument: Transcript

Opinion: Reversed and remanded in an opinion by Justice Scalia

[edit] Pre-Argument Articles

[edit] Argument Preview

Nearly 30 years ago, in July 1978, the Supreme Court ruled for the first time that the Constitution allowed the government to prohibit the broadcast, on radio and TV, of vulgar words that were indecent, though not obscene. That was the ruling in FCC v. Pacifica Foundation. Justice John Paul Stevens, the author of the main opinion in Pacifica, is the only member of the Court still serving. The Commission is back again, seeking to enforce a more restrictive policy on broadcasts of indecency. In the case of FCC v. Fox Television Stations, et al. (07-582), the Court will be reviewing FCC’s claim that it has the power to punish a station for even the single use of a vulgar word – specifically, two four-letter words, one a sexual epithet, the other a bit of barnyard or toilet slang.

[edit] Background

Since the Radio Act of 1927 was passed, federal law has provided that “No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication” – a provision since extended to television. The FCC, however, did not begin to spell out a policy on what the word “indecent” meant until 1975. It did so then in response to a complaint from a father who had heard on a New York radio station owned by Pacifica a monologue by satirist George Carlin, titled “Filthy Words.” The man heard the expletive-filled broadcast at 2 in the afternoon, while driving with his young son in the car. The Commission did not then punish Pacifica, but said it was putting the complaint in its files and might take action if it got more complaints about indecent broadcasts.

Pacifica took the FCC to court, and the D.C. Circuit Court struck down the Commission’s “declaratory order,” treating it as a kind of censorship forbidden either by the Radio Act or by the Constitution’s First Amendment. After the Supreme Court ruled in favor of the FCC and against Pacifica, in a decision that notably remarked that of all forms of communication, broadcasting had “the most limited First Amendment protection.”

For years thereafter, the Commission followed a policy of acting against broadcasters only if a broadcaster used indecent language in a sustained or repeated way. Congress specified that the FCC could only apply the indecency ban to radio and TV broadcasts aired between 6 a.m. and 10 p.m. – times when children might well be listening or watching.

The post-Pacifica policy stood until March 2004, when the agency changed its mind. Thereafter, it said, even a single use of “the F-Word” on the air would be treated as illegal. The FCC also made it clear that, among other single banned words, a four-letter word meaning excrement and some variations of the word “bull----“ are also banned. It makes exceptions, such as for news broadcasts or other situations in which the context suggests the words are not being used to convey vulgar meaning.

The agency changed its approach after getting complaints about two broadcasts on Fox television of the Billboard Music Awards – the show in 2002 when singer-actress Cher used “the F-Word,” and the show in 2003 when actress Nicole Richie used variations of that word and used the four-letter excrement word – and a broadcast on NBC-TV in 2003 of the Golden Globe Awards, when rock singer Bono used a variation of “the F-Word.” It was actually the Bono comment that led the FCC, in March of 2004, to announce its policy shift so that it would no longer tolerate single uses of vulgar words on the air. It did not punish Bono, however, because it said it had previously allowed “isolated or fleeting’ used of expletives during broadcasts.

But, in reaction to the complaints about Cher and Nicole Richie and the Billboard programs, the FCC in February 2006 issued what it called an “omnibus order”, stressing the ban on single usage violations. Again, though, it imposed no sanctions, because it concluded that broadcast licensees lacked adequate notice of its new policy before the broadcasts.

Fox TV, joined by other broadcasters, complained to the Second Circuit Court about the new policy, but that Court did not rule initially, because the FCC recalled the case to respond more explicitly to the broadcasters’ complaints. It modified its order somewhat, but reaffirmed the ban on single expletives. The case then returned to the Second Circuit, which struck down the new policy as arbitrary and capricious under federal communications law. It did not rule, however, on the broadcasters’ constitutional challenges under the First Amendment. But it did comment that it doubted that the FCC policy could survive scrutiny under that Amendment. It said, though, that it would allow the FCC a chance to provide a “reasonable explanation” for its change of mind.

[edit] Petition for Certiorari

The FCC and the Justice Department, however, did not take up the offer to provide an explanation for its policy, believing that it would be futile to try in view of the Circuit Court’s negative comments about its chances of surviving the First Amendment. The petition for certiorari, filed Nov. 1, 2007, raised only a statutory question, not a constitutional argument. It asked whether the Circuit Court was wrong in striking down the single usage ban under the indecency provision of communications law.

The Commission and the Department contended that the lower court “appears to have put the FCC to a choice between allowing any free use of any expletive no matter how graphic or gratuitous, or else adopting a (likely unconstitutional) across-the-board prohibition against expletives. There is no reason that the Commission must choose between those per se rules.”

The petition argued that, even though the lower court had merely remanded the case, it still merited Supreme Court review at this point because the FCC had already explained its policy fully, and it could not gain anything by trying again to persuade the Circuit Court to reconsider its musings about constitutionality.

Fox TV and the other broadcasters, in responding to the petition, argued that the Court should not turn away from its general practice of refusing to hear cases that have only been returned to a federal agency for a new look. They also noted that there is no split in the Circuit Courts on the legal issue, and they rejected the FCC argument that the Second Circuit ruling conflicted with the Court’s Pacifica ruling in 1978. The Circuit Court, they said, had not even resolved whether the FCC could regulate single expletives as indecent. But, they added, the Circuit Court ruling was correct, anyway.

The Supreme Court, apparently unwilling to make the FCC try again to justify its policy, granted review on March 17. Oral argument is scheduled for Tuesday, Nov. 4.

[edit] Merits Briefs

The Commission, renewing its complaint that the Circuit Court has tied its hands so that it must ban all fleeting expletives, or none, contended that nothing in federal administrative law requires the FCC to use a “blunt instrument” in its regulation of broadcast indecency. “The use of an expletive by, for example, a wire-tapped organized-crime figure on a news program is far removed from the use of the same word in a dialogue on an awards show.” The two, it contended, should not have to be treated the same way.

But the Commission also challenged the Court to rule that, as an expert agency, the FCC is better suited than the courts to decide on the meaning a single, vulgar word has in the broadcast setting. Evaluating connotations of language, the brief said, is what the FCC does. Besides, it contended, the fine points of language may be lost on children, and it is the Commission’s duty to protect them from the shock of vulgarity on the airwaves.

That brief, however, has stirred up a sharp new controversy on another level by suggesting that the broadcasters were barred from raising in the Supreme Court their First Amendment challenge to the revised FCC policy. To bring that issue up now, the Commission contended, would be to allow the broadcasters to make an argument that they should have raised by filing a cross-petition, which they did not do. Since the Second Circuit did not address the constitutional argument, the brief asserted, the broadcasters would be seeking broader relief than they got in the Circuit Court, and that should be out of their reach given the case’s present posture.

In response, the broadcasters, in two separate merits briefs, sought to make the First Amendment challenge a centerpiece of the case at this stage. Fox TV’s brief said the FCC was now asking the Court to “act as if there are no constitutional issues implicated.” The constitutional issues, the brief said, “remain critically important to a proper consideration of the issues.” If the policy ultimately were to be declared unconstitutional, it added, an opinion on the administrative law issue “would be academic.” The regulation of indecent speech, according to Fox TV, “necessarily implicates core First Amendment values, and the administrative law analysis simply cannot be divorced from the constitutional one.” A change in agency policy that curbs more speech must be justified not only by a full explanation, but also “by proof that the policy represents the ‘least restrictive’ means to address a real, established harm.”

The three commercial networks – NBC, CBS and ABC – opened their separate brief with a blunt assertion: “This is a case about the First Amendment.” The brief moved deeply into that argument, suggesting that the new FCC approach is invalid because it is unconstitutionally vague that has led to arbitrary enforcement, and is invalid as a content-based restriction based on a supposition – never embraced by the Court – that a “fleeting utterance of an expletive poses” a threat to children’s well-being. That brief also sought to counter the FCC argument that the broadcasters were seeking to expand the Second Circuit ruling, contending that there is no way the Supreme Court can uphold the FCC policy without “departing from fundamental principles of First Amendment law.” If the case turns solely on well-settled notions of administrative law, according to the three networks’ brief, that is not an issue that is worthy reviewing, and the grant of review should be dismissed.

[edit] Analysis

The Supreme Court’s willingness to grant review of this case does not guarantee that it will decide the case on the merits. Lingering in the case is the question of whether the case was ready for Supreme Court review, after akkm since the FCC did not undertake any new review following the Second Circuit decision, instead proceeding directly to the Supreme Court. Once the Justices have gone over the merits briefs, and the discussion at oral argument, they could opt to let the case go back to the FCC to see if it can produce a fuller rationale for its policy change.

The FCC’s attempt to head off any review by the Court on the First Amendment questions that the broadcasters say remain in the background has added a potentially significant complication to the Justices’ review. They could have to sort out just what is before them and, indeed, whether they should use their discretion to reach out for constitutional issues that were not definitively resolved by the Circuit Court. If the Court should agree that the FCC does have the authority, under communications law, to enforce its new policy on single expletives, it would then have two options: address the statutory and First Amendment challenges that the broadcasters are still pressing, or let the Second Circuit explore those formally in the first instance. But if the Court should rule that the FCC simply does not have the authority, statutorily, to regulate “fleeting expletives,” there would be no need to address the constitutional issue.

[edit] Oral Argument Recap

Lyle Denniston originally wrote the following for SCOTUSblog.


(NOTE: The court stenographer’s report indicates that “F-word” appears in the transcript 16 times; that “F-bomb” appears once, and that “S-word’ was spoken six times.)

The Supreme Court spent a spirited hour Tuesday talking about dirty words, but nobody ever uttered one of them, so the Court’s performance had to be judged on the quality of legal prose and reasoning — hardly the stuff of titillation, even in a courtroom. With Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia the only ones to tip their hand by enthusiastically promoting government authority to ban “fleeting expletives” on radio and television in daytime and prime time, the other members of the Court wandered somewhat randomly through alternative legal principles. The blandness of the proceeding seemed captured in a closing question by Justice John Paul Stevens, as to whether the word “dung” would be indecent under federal communications law.

In the end, it seemed that the Federal Communications Commission may have to try again to explain why it thinks single utterances of the “F-word” and the “S-word” are indecent, and therefore unlawful on TV and radio at times when children may see and hear. The problem may be how, in legal terms, the Court might fashion a ruling with that result — and nothing more — in the case of FCC v. Fox Television Stations (07-582).

The “big elephant in the room,” as Justice Ruth Bader Ginsburg referred to the possible First Amendment implications of the FCC’s current policy on broadcast “indecency,” did not appear likely to emerge into the forefront as the basis for a ruling against the FCC and in favor of broadcasters. Justice David H. Souter, for example, seemed put off by the notion that, in every indecency case the FCC pursued, “we’re always going to be getting into the constitutional issue, expressly or covertly.”

If, indeed, the First Amendment is found to be out of the case, at least at this point, that left a question of whether the FCC has adequately explained its 2004 shift in indecency policy as to the “F-word” and the “S-word” when uttered in isolation. The Second Circuit Court did not think so, and ordered the agency to look again.

On Tuesday, it seemed possible that the Court’s majority would find the Second Circuit was somehow wrong, but that the Court might not want to flatly reverse because that would validate the current FCC policy without further justification, and it was not clear there would be a majority for that. Could it be that the Court might simply affirm, but make the opinion so narrow as not to decide anything finally, until after the FCC reexamines its policy, and there is then another round in the courts? Or, indeed, might the Justices decide it was premature for them to have gotten involved?

After the argument, those options seemed closer to a potential outcome than either a fervent embrace of the FCC’s policy, as the Chief Justice and Scalia appeared prepared to make, or a sweeping denunciation of that policy, as no one on the Court seemed ready to indulge. Because of the dominant role that the Chief Justice and Scalia played in the argument, it was possible to misread their views as the inclination of a majority.

Justices Samuel A. Alito, Jr., and Clarence Thomas, perhaps the most likely to be induced to join an opinion favoring the FCC, said not a word. Justice Anthony M. Kennedy, who often is sympathetic to free-speech arguments, asked only a few, unrevealing questions. Justice Ginsburg said she could find “no rhyme or reason” for the way the FCC applied its ban in some broadcast situations but not in others, and she indicated it might make a difference to her that the existence of the Internet as an alternative source of indecency might change the legal equation on the FCC policy. Justice Stephen G. Breyer wondered if smaller stations might not be able to protect themselves from the policy because they perhaps could not afford technology to “bleep” fleeting expletives. Justices Souter and Stevens were noticeably ambivalent.

Solicitor Gen. Gregory G. Garre, defending the FCC policy, basically had little work to do with two members of the Court so willing to provide justifications for the policy, and to thwart implied criticism from others on the bench. One of his key points, though, was that, for all of the explosion in new media, broadcasting still remains the basic source of information, especially for people who do not want to be bombarded by profanity. He argued that it would be remarkable if the Court were to invalidate the FCC policy outright, and alllow broadcasters to use “the F-word 24 hours a day,” perhaps with Big Bird dropping “the F-bomb” on “Sesame Street,” or someone doing so on “Jeopardy” or “American Idol.”

Justice Stevens led Garre into a concession that, if four-letter words were used jokingly in a way that “was very, very funny,” the FCC might allow it. To that, Justice Scalia retorted: “Bawdy jokes are OK, if they’re really good!”

Garre was firm in his resistance, especially under questioning from Justice Ginsburg, that the Court should leave the First Amendment issues out of their consideration at this point.

For the broadcasters, Washington lawyer Carter G. Phillips was clearly the more animated of the two advocates, raising his voice at times for emphasis when reminding the Justices that they were pondering the meaning of a federal law that carries criminal penalties. That was the premise of much of his argument that the Court could hardly avoid examining the First Amendment implications of this case.

When Chief Justice Roberts wondered why “the F-word” had attained such “force” in the language of the day, Phillips demurred, saying there was no “empirical evidence” to support the idea that it always has a sexual connotation, as the FCC has concluded. Justice Scalia reminded him that people “don’t use ‘gollywoggle’ in place of ‘the F-word’,” but Phillips simply replied that for 20 years the FCC did not treat it as having special force, when used fleetingly rather than repetitively.

Phillips did not appear to fare well with an argument that, in applying the Administrative Procedure Act to determine whether the FCC had explained sufficiently its switch in policy, the Court should add some further requirement of justification because of the First Amendment implications. A “raw APA standard,” he suggested, would probably allow the FCC simply to say it changed its mind because it got a lot of mail saying people were offended by fleeting expletives, but the First Amendment should require more.

When Phillips suggested that America has grown more tolerant of public uses of “the ‘F-word’,” Justice Scalia wondered rhetorically whether Phillip’s clients — broadcasters — “have had anything to do with that…There has been a coarsening produced by these shows.” Just because people are more used to hearing the word, the Justice added, was not the same as being more tolerant of its use.

Justice Stevens, near the end, laid out the task that it appears the Court has before it: “In the last analysis, we are trying to decide what the word ‘indecent’ means….Do you think that…a fleeting expletive could not be indecent, but the same words could be indecent if they are repeated several times?” It was not clear that Tuesday’s argument, by itself, provided an answer.

[edit] Opinion Analysis

Splitting 5-4, the Supreme Court on Tuesday upheld the government’s power under existing law to ban the use on radio and TV of even a single four-letter word that is considered indecent — but left open the question of whether the ban might violate the First Amendment, at least in some situations. The Court, in an opinion by Justice Antonin Scalia, said the Federal Communications Commission’s switch in policy to ban even a fleeting use of such a word was “entirely rational” under the law that governs federal administrative powers. The ruling came in FCC v. Fox Television Stations, et al. (07-582).

The opinion referred to the banned words as the “F-word” and the “S-word” but not go on to fill out their actual spelling. Justice Scalia also did not spell them out in his oral announcement of the decision.

His written opinion, in a case dealing with uses of those four-letter words during performance awards broadcasts involving celebrities, took a swipe at “foul-mouthed glitteratae from Hollywood.”

Basically, the ruling simply means that the FCC provided a sufficient explanation of why it switched from a more relaxed policy on “dirty words” to a near-total ban on “fleeting expletives.” The ban applies on radio and TV from 6 a.m. to 10 p.m. only.

The main opinion stressed that it was dealing only with the question of whether the flat ban was “arbitrary and capricious” as a matter of law. The Court said it did not violate that standard, but that is as far as the ruling went.

The Second Circuit Court, when the case returns there, will have a chance to pass upon broadcasters’ constitutional challenges to the ban. The lower court did not do so on the first review, but strongly hinted then that the ban would not survive a direct First Amendment challenge.

Broadcasters asked the Supreme Court to go ahead and decide that issue. Bypassing it for now, Justice Scalia wrote that the Court is “one of final review, not of first view….It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, 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.”

Justice Ruth Bader Ginsburg, in a dissenting opinion, said “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.”

And Justice Clarence Thomas, in a concurring opinion, said he would be open to reconsidering the Court’s two main precedents that allow the government to treat radio and TV differently for purposes of the First Amendment’s protection. He referred to the 1969 ruling in Red Lion Broadcasting v. FCC and the 1978 decision in FCC v. Pacifica Foundation.

“Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity,” Thomas wrote. The rulings, he said, had made a “deep intrusion into the First Amendment rights of broadcasters.” In this case, Thomas agreed with the Scalia opinion that the FCC had adequately explained its switch in policy — an issue not involving a constitutional dimension.

The Scalia opinion was joined in full by Chief Justice John G. Roberts, Jr., and Justices Thomas and Samuel A. Alito, Jr. Justice Anthony M. Kennedy joined most of the Scalia opinion, and endorsed the result — overturning the Second Circuit ruling nullifying the FCC’s changed policy on “fleeting expletives.”

Justice Stephen G. Breyer wrote the main dissenting opinion, joined by Justices Ginsburg, David H. Souter and John Paul Stevens. Ginsburg and Stevens wrote separating dissenting opinions speaking for themselves.

[edit] Analysis: What's next on indecent broadcasts?=

Within a matter of days, the Supreme Court is expected to take the next step toward fully clarifying the government’s power to control “indecency” on radio and television — moving from words to images, and, specifically, from four-letter swear words to a “wardrobe malfunction” that briefly exposed a female performer’s breast. But looming over either kind of regulation is the prospect of a future constitutional ruling that ultimately could shield broadcasters from much, if not all, of government control of on-air “indecency” — a ruling that could come over the next year or two. The Court set the stage for these further developments with its 5-4 ruling in Federal Communications Commission v. Fox Television Stations, et al. (07-582) — a comparatively narrow ruling that actually resolved very little about how far the FCC ultimately may be able to go to monitor and even to punish profanity or nudity in on-air broadcasting.

What was most vivid about the ruling was the strong indication that, among the nine present members of the Court, it is quite easy to imagine a majority coming together to nullify the FCC’s present policy that amounts to a nearly total ban on broadcast of “fleeting expletives” – single utterances of the “F-word” and the “S-word.” (It may be too early, however, to imagine a majority to nullify another branch of FCC’s current policy — its ban on “fleeting nudity,” or brief exposures of a female breast or a male sex organ on TV.)

Justice Antonin Scalia’s opinion Tuesday, deciding the Fox TV case, read very much like an endorsement of the FCC’s current policy so far as it applied to the broadcast of fleeting four-letter words. The opinion said that FCC had provided an adequate explanation for switching to that ban from a more tolerant policy that had stood for decades. The case now returns to the Second Circuit Court, for a ruling there or a referral back to the FCC for a decision on the broadcasters’ constitutional challenges to the “fleeting expletive” policy.

Tuesday’s ruling, however, did not address broadcasts of fleeting nudity. But, with the Fox TV decision now made, the Court is expected soon to take a new look at a pending case, FCC v. CBS Corp., et al. (08-653), that involves brief exposures of nudity on TV.

This is the celebrated dispute over what the FCC has called “the most widely viewed display of public indecency in television history.” It involved the nine-sixteenths of a second exposure of the breast of performer Janet Jackson during a halftime show at pro football’s Super Bowl broadcast on Feb. 1, 2004. The FCC punished CBS-TV, where the show aired, with a fine totaling $550,000.

The Third Circuit Court nullified the fine, and the underlying policy, concluding that the FCC had not justified a switch from a former policy that the Circuit Court said was more tolerant of fleeting nudity.

That “wardrobe malfunction” case has been ready for the Supreme Court to act upon it since late February, but so far the Justices have taken no action on it. They apparently accepted the FCC’s suggestion that the Justices take no action until after they had decided the Fox TV case, and then move on the CBS-TV case.

The Court will now do so. It has the options of sending the CBS-TV case back to the Third Circuit for a new look in the wake of Tuesday’s decision on expletives, to deny review and thus allow the FCC to look for a way to sustain its anti-nudity policy to satisfy the Third Circuit ruling, or to grant review and decide the case at the Justices’ next Term starting in October.

The Fox TV case and the CBS-TV case are different in several, perhaps decisive ways: the fleeting words case did not involve any punishment, while the fleeting nudity case brought a fine of $550,000; the fleeting words case did not involve an issue over whether the TV networks were responsible for those utterances, while the fleeting nudity case has serious questions about whether the network can be held liable for the actions of the Super Bowl halftime performers, and the fleeting words case did not involve any dispute about whether FCC had switched its policy, while the fleeting nudity case does include a dispute over whether the Commission changed policy or had always had a policy of banning exposures of nudity.

Each of those differences could be crucial in shaping the Supreme Court’s response, or the response of the Third Circuit, as the CBS-TV case develops further. Both do involve constitutional questions over the FCC’s authority to regulate brief broadcasts of what the FCC considers to be indecent material.

And, on that constitutional point, the ruling Tuesday seemed to have major potential — in favor of broadcast freedom. Justice Clarence Thomas wrote an opinion strongly implying that the Court should now reopen the whole question of whether radio and TV should have less First Amendment protection than, say, newspapers. And the four dissenters indicated that the FCC ban was subject to deep constitutional doubt, and probably could only be salvaged by being interpreted to tolerate brief exposures of profanity or nudity. (The four dissenters were Justices Stephen G. Breyer, Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.)

If, or when, the Court does renew that constitutional debate, it seems unlikely that Justice Anthony M. Kennedy, a strong supporter of the First Amendment (but who withheld his views on the Amendment’s application to fleeting expletives), would vote against the constitutional claims of the broadcasters, thus bolstering their potential challenge.

The constitutional debate over FCC policy, though, will shift — for the time being — to the Second Circuit in the Fox TV case. Lawyers for broadcasters have already crafted their First Amendment claims against the FCC policy; they laid them before the Court in the Fox TV case in hopes of getting the Justices to rule now on them. The Justices declined to do so. But the lawyers will have a very simple task of recycling those same arguments for the next forum.

The Second Circuit, though, may not have the last word on this. The constitutional debate may well wind up back in the Supreme Court, down the road in a year or two.

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