Divided court upholds FCC indecency fines (April 28, 2009)

A Supreme Court divided 5-4 along familiar ideological lines upheld the Federal Communications Commission’s ban on the use of fleeting expletives in live television broadcasts.

The controversy arose in March 2003 when U2 frontman Bono uttered the f-word during a broadcast of the Golden Globe Awards. Immediately following the incident, the FCC decided not to fine NBC or its broadcast affiliates, which aired the show. The agency’s enforcement bureau held that “Bono’s comment was not indecent or obscene because he did not use the word to describe a sexual act…The performer used the word ... as an adjective or expletive to emphasize an exclamation.”

Following pressure from Congress, however, the FCC reversed its initial decision a year later, holding that Bono’s words were actually indecent because such language always has some sexual or excretory meaning. The commission decided not to fine the network but warned that broadcasters should now be on notice that any broadcast of the “f-word” could subject them to fines.

The FCC later applied its Golden Globes order to Fox’s broadcast of the 2002 and 2003 Billboard Music Awards. In 2002, Cher used the f-word in accepting an award and the following year, Nicole Richie used the “s-word” and “f-word” while presenting.

Although Fox was not fined for the broadcasts, the network filed suit, arguing that the FCC’s new policy was unclear and violated free speech rights.

In June 2007, a divided three-judge panel on the 2nd U.S. Circuit Court of Appeals in New York vacated the policy, calling it “arbitrary and capricious under the Administrative Procedure Act.”

“We are sympathetic to the Networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague,” Judge Rosemary Pooler wrote for the 2-1 court.

In asking the high court to take the case, Solicitor General Paul Clement argued that the lower court’s decision conflicted with the 1978 case, FCC v. Pacifica Foundation, in which the Supreme Court upheld the FCC’s rules against the broadcast of comedian George Carlin’s “Filthy Words” monologue on the radio.

“The court of appeals appears to have put the FCC to a choice between allowing one free use of any expletive no matter how graphic or gratuitous, or else adopting a (likely unconstitutional) across-the-board prohibition against expletives,” Clement wrote.

Meanwhile, the networks urged the Supreme Court to let the 2nd Circuit ruling stand, contending that it did not conflict with Pacifica because this case involves fleeting expletives rather than an extensive monologue.

On April 28, a divided court reversed a remanded the appeals court ruling.

Writing for the 5-4 majority, Justice Antonin Scalia called the FCC’s switch in policy “entirely rational.”

“The agency’s reasons for expanding the scope of its enforcement activity were entirely rational,” Scalia wrote, adding: “It was certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words, requiring repetitive use to render only the latter indecent.”

Justice Clarence Thomas filed a concurring opinion and Justice Anthony Kennedy concurred in part and in the judgment, but did not join the majority opinion in Part III-E.

Justice John Paul Stevens filed a dissenting opinion and Justice Stephen G. Breyer filed a dissenting opinion joined by Justices Stevens, David H. Souter and Ruth Bader Ginsburg.

“In my view, the Federal Communications Commission 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,” Souter wrote. “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.”

The majority holding did not deal with cable TV, satellite broadcasts or the Internet, which bypass federal regulation because they don't rely on the public airwaves.

The majority also did not address Fox's First Amendment challenge to the policy, but the case now heads back to the 2nd Circuit, which could take up the issue.

Question presented:

Whether the court of appeals erred in striking down the Federal Communications Commission’s determination that the broadcast of vulgar expletives may violate
federal restrictions on the broadcast of “any obscene, indecent, or profane language,” 18 U.S.C. 1464; see 47 C.F.R. 73.3999, when the expletives are not repeated.