Court OKs fines for fleeting expletives

From the Summer 2009 issue of The News Media & The Law, page 11.

The government policy of fining television stations for the accidental one-time use of expletives is still in place after the Supreme Court’s decision in FCC v. Fox Television this term.

But the case, which was decided under administrative law principles and remanded to the appellate court to determine the constitutional issues, will likely make its way back up to the Supreme Court on First Amendment grounds. That would give the Court another chance to define the limits of broadcast regulation.

In the 5-4 ruling, the Supreme Court decided in late April that the Federal Communications Commission did not violate any procedural or administrative rules in 2004 when it began to fine stations for even spontaneous uses of indecent language on live television.

The FCC’s policy, dating to the Court’s 1978 decision in FCC v. Pacifica Foundation, had been to fine broadcast networks only for repeated uses of expletives. But after several celebrities used indecent language on awards shows in the early part of this decade, the FCC began sanctioning the stations for fleeting utterances.

Fox Television sued the FCC, arguing the policy change violated the federal Administrative Procedures Act requirement that policy changes be reasonable and not “arbitrary and capricious.”

The U.S. Court of Appeals in New York City (2nd Cir.) ruled for Fox, holding that the policy was indeed unreasonable. The Supreme Court this spring overturned the decision, finding the policy change did not violate administrative law.

Justice Antonin Scalia wrote for the majority that: “The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children.”

The Court did not rule on whether the FCC’s sanctioning policy violated the First Amendment.

Ron Collins, a scholar at the First Amendment Center in Washington, D.C., said he is cautiously optimistic that the FCC’s policy will be held unconstitutional by the appellate court and likely by the Supreme Court if it makes its way back up.

“This is a dicey issue,” Collins said. “What happens between now and when the court hears it again is anybody’s guess.”