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Commentary

Supreme Court Clears the Way for Ending FCC Censorship of the Airwaves

(April 28, 2009) - The Supreme Court ruled today that the Federal Communications Commission’s claim of discretionary power to punish the utterance of even one “fleeting expletive” on the airwaves is not “arbitrary and capricious” within the meaning of the federal law that governs administrative agencies. At first glance, this looks like a win for government censorship and a loss for free speech in radio and TV broadcasting.

But actually, the decision in FCC v. Fox Television clears the way for a ruling on the constitutional problem that has bedeviled broadcasters and audiences alike in the 31 years since the Court, in a narrow and contested case involving the nonprofit Pacifica radio, upheld the FCC’s power to censor constitutionally protected but vulgar speech on the airwaves. Thus, if we're lucky, we could finally see an end to the FCC’s long and anomalous history of censorship within the next few years.

The Fox case began in 2006 when the FCC issued an “Omnibus Order” finding numerous broadcasts to be impermissibly “indecent,” including, most questionably, a PBS documentary on the blues, directed by Martin Scorsese. Only four of these rulings could be appealed directly to the federal courts, though, because only four involved the application of a new rule that the FCC had announced two years before, providing that even one “fleeting expletive” could be held indecent. Because the FCC didn’t impose any penalties in these four cases, there was no appeal within the agency, so the affected broadcasters could go directly to court.*

Part of the FCC’s rationale for its new “fleeting expletives” rule was its opinion that even when used as a simple exclamation (as in, for example, “Oh shit, I stubbed my toe!”), certain words – in particular, “fuck” and “shit” – inherently have a sexual or excretory connotation, and that children should be shielded from the “first blow” of such presumably harmful language – at least, sometimes. (The agency reserved for itself the discretion to decide, based on its judgments about "artistic necessity," that some broadcasts, such as the expletive-laden war film, “Saving Private Ryan,” are not indecent.)

The four programs targeted by the FCC’s 2006 Omnibus Order were an episode of “NYPD Blue” in which a character said “bullshit,” an interview on “The Morning Show” in which a guest said “bullshitter,” and two Billboard Award programs in which Cher and Nicole Richie, respectively, used what the FCC delicately termed the “F word” and the “S word.”

As soon as the networks filed suit to challenge the FCC’s four rulings, the agency realized its legal vulnerability, and sought a remand. It then reversed itself on “NYPD Blue” and “The Morning Show,” leaving only the randy language of Cher and Richie as the factual backdrop to the case. The FCC then tried to persuade the U.S. Court of Appeals for the Second Circuit that only these two narrow deviations from proper discourse were at issue, not the overall legality of the new “fleeting expletives” rule. But the court of appeals disagreed, and ruled in 2007 that the new rule violates the federal Administrative Procedure Act because it is “arbitrary and capricious”: that is, the agency hadn’t given a rational explanation for its change from a standard that would not punish a single “fleeting expletive” to a more capacious, and even more discretionary, censorship regime.

The Second Circuit appeals court remanded the case to the FCC for further consideration, but, in strongly worded “dicta,” said it doubted that the agency could defend the new rule barring fleeting expletives against a First Amendment challenge.

There were several reasons for this, according to the appeals court. First, the fleeting expletives rule asserts a power to censor that goes well beyond anything the Supreme Court approved in its narrow 1978 decision in the Pacifica case. (Pacifica involved a comic monolog by George Carlin which repeatedly used the “seven dirty words" that you supposedly could not say on the airwaves in a fashion that some of the justices considered to be “verbal shock treatment.”)

Second, said the Second Circuit judges, the Supreme Court’s justifications in Pacifica for allowing government censorship of the airwaves – that broadcasting is “uniquely pervasive” and “uniquely accessible to children” - are no longer accurate in today's media environment. New technologies are now equally pervasive and accessible. And along with these new technologies have come filters and v-chips that parents can use to screen out vulgar language if they choose.

Finally, the Second Circuit noted that the FCC’s "'patently offensive as measured by contemporary community standards' indecency test coupled with its 'artistic necessity' exception [which it had applied, for example, to exonerate "Saving Private Ryan" but not Scorsese's "The Blues"] fails to provide the clarity required by the Constitution," and thus "creates an undue chilling effect on free speech." (The FCC has the power to fine broadcasters hundreds of thousands of dollars for words or images that the agency thinks “patently offensive” – that is, indecent.) Given the pervasiveness of the words "fuck" and "shit," and their many variants, in contemporary society, the court of appeals said, the FCC would not likely be able to show a "compelling state interest" in suppressing them.

Because all this constitutional analysis by the Second Circuit was only "dicta" – it only suggested that the fleeting expletives rule violates the First Amendment – the sole question before the Supreme Court, in considering the government's appeal from the Second Circuit, was whether the FCC's rule is "arbitrary and capricious," in violation of the Administrative Procedure Act. Although the four dissenters in today’s Supreme Court decision made a strong case that the answer should be yes, Justice Scalia, writing for a squeaky majority of five, disagreed. The FCC was being perfectly rational in changing to a more draconian policy, he said, slamming the “foul-mouthed glitterati from Hollywood” in the process.

The happy irony here is that if the four dissenters had prevailed, the case would go back to the FCC to see if it could come up with a better rationale for the fleeting expletives rule. The agency has long been expert at indefinite delays, which would likely have meant many more years of arbitrary and unpredictable censorship based on vague, shifting, and often politically driven criteria. (That is, how much pressure are members of Congress putting on the FCC commissioners at any given time?)

Instead, the case will go back to the Second Circuit, which has already indicated that it thinks the fleeting expletives rule violates the First Amendment, and, indeed, has suggested that there is no longer a constitutional justification for treating broadcasting differently from other media such as newspapers, films, and the Internet, which government officials cannot censor or punish for uttering four-letter words. Assuming that the court of appeals resolves the case within the next year, it could be back at the Supreme Court for a constitutional ruling sometime in 2010.

And based on the various concurring and dissenting opinions today in FCC v. Fox Television, there is a reasonable likelihood that at least five, and possibly six, justices will vote to strike down the FCC’s current indecency regime on First Amendment grounds. Here is the possible lineup:

Justice Ruth Bader Ginsburg made her views clear in a brief, eloquent dissent. “There is no way to hide the long shadow the First Amendment casts over what the Commission has done,” she wrote. Taking issue with the 1978 Pacifica ruling, Ginsberg emphasized that in other contexts, the Court has recognized the “emotive” as well as the “cognitive” elements of expression – the fact that “a word categorized as indecent ‘often is inseparable from the ideas and viewpoints conveyed, or separable only with loss of truth or expressive power.’” Ginsburg concluded by quoting Justice William Brennan’s powerful dissent in Pacifica, which pointed out that “in our land of cultural pluralism,” there are many who speak and write differently from the justices of the court – or the commissioners of the FCC.

Justice Clarence Thomas concurred in the Supreme Court’s ruling on the statutory issue (the Administrative Procedure Act), but reiterated what he has said before: that there is no constitutional basis for giving broadcasters less First Amendment protection than other media producers. Pacifica was unconvincing when it was issued, Thomas said, and the passage of time has only increased doubts about its constitutional validity.

Justice Anthony Kennedy also wrote a separate concurrence. Although he did not tip his hand on the First Amendment issue, he is known as a strong supporter of free speech. He specified that the only issue before the Court today was whether the FCC’s explanation for its change of policy was sufficient, and that “we must reserve judgment on the question whether the agency’s action is consistent with the guarantees of the Constitution.”

Justice John Paul Stevens, the author of Pacifica, did not disclaim his dubious reasoning in that much-criticized case, but he did emphasize its narrowness. He said the new fleeting expletives rule goes well beyond anything authorized in Pacifica (and he should know). In particular, Stevens said, Pacifica only allowed censorship of language referring to sex or excrement, and the Commission’s attempt to blur that distinction was insupportable. “The customs of speech,” Stevens explained, refute the FCC’s claim that “shit” and “fuck” always refer to excrement or sex:

As any golfer who has watched his partner shank a short approach knows, it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent.

Thus, although Justice Stevens did not seem ready to abandon Pacifica, he did seem ready to hold that the FCC’s current application of its indecency power violates the First Amendment. He wrote, in reference to Justice Thomas, that “the changes in technology and the availability of broadcast spectrum he identifies certainly counsel a restrained approach to indecency regulation, not the wildly expansive path the FCC has chosen.”

Finally, Justice Stephen Breyer wrote a dissent on the statutory issue (whether the FCC’s new rule is “arbitrary and capricious”). He took Scalia to task for failing to interpret the law narrowly in order to avoid First Amendment problems. In promulgating its new rule, Breyer said, the FCC said “next to nothing” about the “First Amendment-related need to avoid censorship.” Breyer strongly implied that Pacifica represents the outer limits of what the First Amendment allows the government to do, and that the fleeting expletives ban exceeds those limits. He was especially concerned about the chilling effect of ruinous fines and unpredictable agency censorship on small public-service broadcasters.

All this suggests that there are five or six votes to strike down the FCC’s current censorship policy when the case returns to the Supreme Court. A larger question is whether the Court will bite the bullet and acknowledge that the entire indecency regime has been a constitutional disaster area and should be put out of its misery.

Marjorie Heins

Update: In August 2009, the Second Circuit ordered new briefs to be filed on the First Amendment issue. See Fleeting Expletives Redux. In July 2010, the Second Circuit ruled that the FCC's indecency policy is unconstitutionally vague. See FCC's Censorship of "Indecency" is Unconstitutional.

On June 27, 2011, the Supreme Court granted the government's petition for review of the Court of Appeals ruling, as well as another Second Circuit decision that struck down an indecency finding against "NYPD Blue" for showing a few moments of female nudity. On June 21, 2012, the Court vacated the FCC's orders on narrow due process grounds, without reaching the First Amendment issues. See The FCC and Indecency: The Supreme Court Decides Not to Decide.

* For more background on the FCC’s indecency regime and the genesis of the new “fleeting expletives” rule, see What is the Fuss About Janet Jackson's Breast?, A Huge Victory for Free Speech on the Airwaves, Supreme Court Blushes at Those "S-words" and "F-words," and the friend-of-the-court brief submitted to the Supreme Court by FEPP director Marjorie Heins on behalf of the ACLU, the Directors Guild, and ten other groups.

 


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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