April 28, 2009

Supreme Court Decides Federal Communications Commission v. Fox Television Stations, Inc.

On April 28, the Supreme Court decided Federal Communications Commission v. Fox Television Stations, Inc., No. 07-582.

Federal law bans the broadcasting of "any … indecent … language" (including references to sexual or excretory activity or organs) from 6 a.m. until 10 p.m. 18 U.S.C. § 1464; FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Until 2004, the Federal Communications Commission enforced this ban by examining the full context of the language, including the literal or non-literal ("expletive") use and its fleeting or repeated use. That year, the FCC's Golden Globes Order declared for the first time that use of the F-word and S-word as expletives could be actionably indecent, even when the word is used only once.

The present Fox decision involved two live broadcasts prior to Golden Globes: Cher's comment during the 2002 Billboard Music Awards about her critics ("f*** ‘em") and Nicole Richie's remark during the 2003 Billboard Music Awards about "The Simple Life" ("Have you ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple."). The FCC deemed the broadcasts actionably indecent, but declined to impose sanctions. On a challenge by Fox, the Second Circuit reversed the agency's orders, finding the agency's reasoning for the change in treatment of "fleeting expletives" inadequate under the Administrative Procedure Act. The Supreme Court reversed on administrative grounds.

The Court held that when an agency departs from a prior policy, it should display awareness that it is changing position: it cannot simply disregard rules that are still on the books, and it must show that there are good reasons for the new policy. However, it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old policy, unless the new policy rests upon factual findings that contradict those that underlay the prior policy or it must account for serious reliance upon the prior policy.

The Court expressly rejected any suggestion that it should apply a more stringent arbitrary-and-capricious review to agency actions that implicate constitutional liberties, including the First Amendment. Nevertheless, Justice Kennedy's concurring opinion agreed with the four-justice dissent by Justice Breyer that when an agency sets a new course that reverses its earlier determination, it must explain why it now rejects the considerations that led it to adopt that initial policy, and formed a five-justice majority on that point.

The Court did not address any constitutional issues, but the dissenting opinions and Justice Thomas' concurrence note important First Amendment questions about the FCC's regulation of fleeting expletives.

Justice Scalia delivered the judgment of the Court and delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy (in part), Thomas and Alito joined. Justice Kennedy filed an opinion concurring in part and dissenting in part. Justice Thomas filed a concurring opinion, in which he signaled his skepticism that the First Amendment allows Congress, through the FCC, to disfavor broadcasters as compared to other media and his openness to reconsideration of Pacifica in a future case. Justices Stevens, Ginsburg and Breyer filed dissenting opinions. Justices Stevens, Souter and Ginsburg joined in Justice Breyer's dissenting opinion.

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