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Back to the Past: the Government’s Brief in the “Fleeting Expletives” Case

(September 18, 2011) – Earlier this month, the Obama administration filed its brief to the Supreme Court in two consolidated cases that will decide whether the Federal Communications Commission can continue its longstanding policy of censoring whatever it considers "indecent" on the radio and television airwaves. One case, FCC v. Fox Television, involves the agency’s "fleeting expletives" rule, announced in 2004, which defines even one use of a vulgar word during any but late-night hours as presumptively indecent. The second case, FCC v. ABC, involves an episode of NYPD Blue that included 7 seconds of rear-view female nudity.  

The government’s brief, prepared by the Solicitor General’s office, is noteworthy for its strategy. First, it argues that the Court should not consider the vagueness of the FCC’s definition of indecency as the agency has applied it in the past few years, but only as applied to three broadcasts directly at issue: the NYPD nude scene (in the ABC case), and two moments in which the actresses Cher and Nicole Richie uttered variants on the words "shit" and "fuck" during an awards broadcast (the Fox case).

That is, regardless of the vagueness of the FCC's definition of indecency - material that is "patently offensive as measured by contemporary community standards for the broadcast medium" - the government argues that ABC and Fox were well aware that their particular broadcasts would violate the standard, and therefore that the Court should not consider how the standard has been or might be applied to anybody else.

The government’s lawyers hope by this strategy to persuade the Supreme Court to ignore the broad chilling effect of the indecency regime. Because neither the indecency definition nor any of the FCC's guidelines give broadcasters fair notice of what is prohibited, they are forced to self-censor in order to avoid the risk of massive penalties: more than $300,000 per violation. The record in the Fox case contains extensive evidence of this chilling effect, particularly on nonprofit community broadcasters that cannot afford even a single fine. The record also contains evidence of the arbitrariness and unpredictability of the indecency policy, including the agency’s reversal of its own rulngs against two broadcasts that contained fleeting expletives: one, an NYPD Blue episode that included the word "bullshit"; and the other, a single utterance of "bullshitter" in an interview on The Early Show.

The Second Circuit Court of Appeals relied on this evidence in striking down the indecency policy in the Fox case. The court was particularly struck by the Commission's finding that repeated use of "all variants of 'fuck' and 'shit'" were not indecent in the movie Saving Private Ryan, but that "occasional expletives spoken by real musicians" were indecent in a PBS documentary, The Blues, because the FCC thought the filmmaker, Martin Scorsese, could have achieved his artistic purpose without the expletives. "There is little rhyme or reason to these decisions," Judge Rosemary Pooler wrote for the court."1

The second part of the Solicitor General’s strategy is to argue that nothing has changed since the Supreme Court’s 1978 decision in FCC v. Pacifica Foundation, which allowed the FCC to censor indecency, at least in the context of comedian George Carlin’s repetitive use of four-letter words in his famous "Filthy Words" monolog. The Court’s justification then for allowing government censorship of constitutionally protected speech was that the airwaves are a scarce resource, uniquely accessible to children, and that children are harmed by exposure to vulgar words.2

But as the Second Circuit noted in Fox, the original justifications for Pacifica - the "twin pillars of pervasiveness and accessibility to children" - no longer apply. "Indeed," Judge Pooler said, today

we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a "uniquely pervasive presence in the lives of all Americans." The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast - almost 87 percent of households subscribe to a cable or satellite service - and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs. 

Although acknowledging that obviously, a court of appeals cannot overrule a Supreme Court precedent, the Second Circuit pointed out that Pacifica was a very narrow decision, confined to the Carlin monolog, and left open questions about how vague and far-ranging the FCC’s censorship could be. But "regardless of where the outer limit of the FCC's authority lies, the FCC's indecency policy is unconstitutional because it is impermissibly vague."3

The government’s brief asks the Supreme Court to reject all arguments that a changed media landscape justifies a reconsideration of Pacifica. Broadcasting is still unique, it says, and parents still depend on FCC censorship of broadcast channels, even if they receive all their TV programming from a cable box. Indeed, the government lawyers say, "the rise of alternative communications media has strengthened, not undermined," parents’ reliance "on indecency regulation to safeguard broadcast television as a relatively safe medium for their children."4 They do not cite evidence for this assertion about parental reliance on the FCC, or for their assumption that hearing four-letter words or viewing nude bodies is harmful to minors.

A great deal is at stake in these cases – not only for broadcasters, large and small, but for writers, performers, and free-speech advocates. Numerous independent media and civil liberties groups have participated in this long litigation on the side of the networks, and conservative "family values" groups have filed friend-of-the-court briefs siding with the government.5

Some sense of how the justices might rule can be gleaned from their earlier decision in Fox, reversing the Second Circuit’s initial ruling that the fleeting expletives rule was "arbitrary and capricious," in violation of the federal Administrative Procedure Act. The justices were much divided, with Antonin Scalia writing for the majority that no empirical evidence was needed for the FCC to assume that children are harmed (at least sometimes) by indecent language, that the Commission’s distinctions between Saving Private Ryan (not indecent) and The Blues (indecent) were not unreasonable, and that "small-town broadcasters" do not have to worry because "their down-home local guests probably employ vulgarity less than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood."6

Of the four dissenters to this earlier Supreme Court’s ruling - Justices Breyer, Ginsberg, Souter, and Stevens – Ginsberg was the most forceful in condemning the FCC’s indecency regime. "There is no way to hide the long shadow the First Amendment casts over what the Commission has done," she wrote, pointing out 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.'" A concurring opinion from Justice Clarence Thomas also indicated hostility to the FCC's special censorship of the airwaves, arguing that there is no constitutional basis for giving broadcasters less First Amendment protection than other media producers.7 Thus, even though Justices Souter and Stevens are gone, and it appears that Justice Sonia Sotomayer, formerly of the Second Circuit, will not participate in the case, there may be a majority to affirm the Second Circuit’s ruling that the FCC’s censorship regime is unconstitutionally vague.8 The result will likely depend on the votes of Justices Kennedy, Breyer, and Kagan. In the event of a 4-4 tie, the Second Circuit rulings in both Fox and ABC would be affirmed.

Update: On June 21, 2012, the Supreme 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.

Click here for a copy of the government ’s brief.

Notes

1. Fox Television v. FCC, 613 F.3d 317, 332 (2nd Cir. 2010).

2. FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In his Pacifica dissent, Justice William Brennan accused the majority of "a depressing inability to appreciate that in our land of cultural pluralism, there are many who think, act, and talk differently from the Members of this Court, and who do not share their fragile sensibilities. It is only an acute ethnocentric myopia that enables the Court to approve the censorship of communications solely because of the words they contain." Id., 775.

3. Fox v. FCC, 613 F.3d at 326.

4. Brief for the Petitioners, FCC v. Fox Television, S.Ct. No. 10-1293, 23.

5. See http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-1293.htm for a complete list.

6. FCC v. Fox, 173 L. Ed. 2d 738, 758 (2009).

7. Id., 770, 760.

8. See FEPP’s analysis in Supreme Court Clears the Way for Ending FCC Censorship of the Airwaves. The Supreme Court docket entry for June 27, 2011, granting review in the case, states that Justice Sotomayor "took no part in the consideration or decision of this petition." http://www.supremecourt.gov/Search.aspx?FileName=/ docketfiles/10-1293.htm