Supreme Court upholds fleeting expletive ban

The Supreme Court on Tuesday upheld a government policy of sanctioning television networks for one-time utterances of fleeting expletives on live prime-time television.

In a 5-4 decision, the Court in FCC v. Fox Television ruled that the FCC did not violate any procedural or administrative rules in 2004 when it began to fine television stations for spontaneous uses of indecent language on live television. The Court did not rule on whether the FCC’s sanctioning policy violated the First Amendment.

The decision overturns a ruling issued by the U.S. Court of Appeals in New York City (2nd Cir.) that held the FCC’s new policy was unreasonable under administrative law requirements.

Since the Court first defined the boundaries of sanctioning indecent language on prime time television in the 1978 case FCC v. Pacifica Foundation, the FCC’s policy had been to fine networks only for repeated uses of expletives. In Pacifica, for example, the Court allowed the FCC to sanction an afternoon radio broadcast of comedian George Carlin’s 12-minute monologue “Filthy Words.”

But after a string of incidents in 2002 and 2003 in which several celebrities used the words “fuck” and “shit” on live television before they could be bleeped, the FCC enacted a policy of sanctioning the networks for each use of accidental fleeting expletives. Fox brought the lawsuit, arguing that the policy shift violated the Administration Procedures Act, a federal law that requires policy changes made by executive agencies to be reasonable and not “arbitrary and capricious.”

In oral arguments before the Court in November, Fox attorney Carter Phillips argued that the Court should apply a form of heightened review to agency policy changes that implicate the First Amendment.

But in a majority opinion written by Justice Antonin Scalia, the Court disagreed.

The Court held that the FCC’s policy was reasonable and, further, that Pacifica did not represent the “outer limits of permissible regulation, so that fleeting expletives may not be forbidden.”

“The agency’s decision to retain some discretion does not render arbitrary or capricious its regulation of the deliberate and shocking uses of offensive language at the award shows under review – shows that were expected to (and did) draw the attention of millions of children,” Scalia wrote.

In defending the FCC’s policy change, Scalia continued: “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.”

Scalia’s opinion was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito. Justices John Paul Stevens, Ruth Ginsburg, Stephen Breyer and David Souter dissented.

The Court’s 72-page ruling was splintered, with concurrences written by Thomas and Kennedy, and dissents written by Stevens, Ginsburg and Breyer.

Breyer’s dissent, which was joined by all the dissenting justices, argued that the FCC’s policy shift was indeed arbitrary and capricious because the FCC had not adequately explained its reasoning for increasing its ability to fine networks for fleeting expletives.

“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,’ a matter as closely related to broadcasting regulation as is health to that of the environment,” Breyer wrote. Ginsburg too acknowledged that the constitutional implications of the FCC’s policy were difficult to ignore.

“There is no way to hide the long shadow the First Amendment casts over what the Commission has done,” she wrote.

The Court’s decision remands the case back to the appellate court.