Whether an expletive must be repeated in order for the Federal Communications Commission to be able to find it "indecent," pursuant to its power under 18 U.S.C. § 1464.
From 1978-2003, the Federal Communications Commission (“FCC”) enforced its authority to regulate indecency in broadcast media with a standard that did not include as indecent the broadcast of a single, fleeting expletive. In 2003, the FCC departed from its past policy, stating that fleeting expletives could be found indecent. The issue in this case is whether an expletive must be repeated in order for the FCC to be able to find it "indecent." Fox Television, NBC, ABC, CBS, and the Center for Creative Voices argue that repetition should be required for an indecency finding, and that the FCC’s change in policy is arbitrary and capricious and violates the First Amendment. The U.S. Court of Appeals for the Second Circuit agreed with the networks that the new FCC standard was arbitrary and capricious, but did not rule on whether the new policy violates the First Amendment. The Supreme Court’s ruling in this case is important because it is the first time the Supreme Court is reaching the issue of indecency in broadcasting since its 1978 ruling in FCC v. Pacifica Foundation, in which it ruled that the FCC had the authority to regulate indecency in broadcast media.
Questions as Framed for the Court by the Parties
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 in 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.
18 U.S.C. § 1464 authorizes the Federal Communications Commission (“FCC”) to regulate the broadcasting of indecent speech, and under 47 U.S.C. § 503(b)(1)(D), the FCC may fine broadcasters that violate § 1464. In 1975, the FCC used this authority for the first time when it found the broadcast of George Carlin’s “Filthy Words” monologue indecent. In the case that followed, FCC v. Pacifica Foundation, the Supreme Court held that the FCC’s regulation of indecent material was constitutional in broadcasts with similar content to that in “Filthy Words.”
After the Pacifica case, the FCC rarely acted on its authority to regulate indecent broadcasted material. In 2001, the FCC released an industry guidance document explaining that “indecency” depended on whether the broadcasted material described sexual or excretory activities, and whether it was “patently offensive” according to contemporary community standards. Part of this test depended on whether potentially indecent material was repeated: material that dwelled on the offensive content would be found indecent, but material that was “fleeting and isolated” would not be found indecent.
The FCC began to tighten enforcement of indecent material after a broadcast of the 2003 Golden Globe Awards, in which award recipient Bono said, “This is really, really fucking brilliant. Really, really great.” After receiving complaints about Bono’s statement, the FCC held that “the ‘F-Word’” was presumptively indecent, even if it was not repeated. The FCC put broadcasters on notice that they could be fined for any broadcast of the “F-Word,” overruling its previous position.
In 2006, the FCC addressed complaints regarding two Billboard Music Awards programs that Fox had broadcasted. During her acceptance speech at the 2002 Billboard Music Awards, Cher stated, “People have been telling me I’m on the way out every year, right? So fuck’em.” In addition, at the 2003 Billboard Music Awards, presenter Nicole Richie said, “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.” In its Omnibus Order, the FCC found the two Billboard Music Awards incidents indecent and profane, and reaffirmed that any use of the word “fuck” is presumptively indecent. The FCC also decided that any use of the word “shit” is presumptively indecent.
After the FCC issued the Omnibus Order, Fox and CBS petitioned the U.S. Court of Appeals for the Second Circuit for a review of the order. The Second Circuit granted the petitions and consolidated a petition by ABC with the others. Before briefing on the networks’ appeal began, the Second Circuit granted the FCC a sixty-day voluntary remand so it could have the first opportunity to address the networks’ argument. The remand resulted in the FCC’s Remand Order, which reaffirmed the FCC’s finding that the 2002 and 2003 Billboard Music Award programs were indecent and profane.
On November 6, 2008, the remand ended and the FCC’s appeal was automatically reinstated to the Second Circuit. Fox petitioned for review of the Remand Order, and the Second Circuit consolidated Fox’s new appeal with the reinstated appeal of the Omnibus Order. The Second Circuit also granted motions to intervene by CBS and NBC. The Second Circuit found that the FCC’s indecency policy was invalid under the Administrative Procedure Act, and consequently vacated the FCC’s Remand Order and remanded the matter to the FCC for further proceedings. After the Second Circuit’s decision, the FCC petitioned the U.S. Supreme Court for certiorari, which was granted on March 17, 2008.
Did the FCC provide a reasonable explanation for its change in policy?
5 U.S.C. 706(2)(A) of the Administrative Procedure Act (“APA”) states that a reviewing court shall hold unlawful and set aside any agency actions, findings, and conclusions that are found to be arbitrary and capricious. Petitioner Federal Communications Commission (“FCC”) argues that this statute mandates an appellate court to affirm an administrative agency’s change in policy as long as the agency provides a reasonable explanation for the change. . The FCC asserts that it satisfied the APA’s requirements because it provided a reasonable explanation for the change in its enforcement of § 1464.
The FCC’s explanation for the change in its enforcement policy is that “categorically requiring repeated use of expletives in order to find material indecent is inconsistent” with its “general approach to indecency enforcement, which stresses the critical nature of context.” The FCC argues that its explanation, “by itself, is sufficient to satisfy the APA’s requirement that an agency explain a change in policy.” As a result, the FCC contends, the Second Circuit erred in “second-guessing” the FCC’s choice to change its policies enforcing § 1464.
Respondent Fox, on the other hand, argues that the FCC’s change in policy was “arbitrary and capricious” and lacked a reasonable explanation. Fox acknowledges that the FCC provides three reasons as explanation for its change in policy: (1) that the change replaces a per se rule with a contextual, case-by-case method of ruling on fleeting expletives (2) that the change protects listeners from the “first blow” of offensive words and (3) that the change prevents the risk of broadcasters airing isolated expletives more frequently. However, Fox challenges the reasonableness of these explanations, alleging that a per se rule on fleeting expletives never existed, and that the FCC failed to explain “what harms its new policy is meant to address.” Fox claims that there is no evidentiary support for the FCC’s concern that a policy which allows a single uttering of a vulgarity increases the risk of broadcasters airing isolated expletives more frequently.
In addition to Fox’s arguments, Respondent Center for Creative Voices (“Center”) argues that the FCC’s enforcement of its policy leaves artists “confused as to what constitutes indecent and profane programming.” The Center argues that the FCC’s changed policy is “chilling speech and stifling creative expression.” In addition, the Center argues, the possibility of incurring fines for indecent programming forces artists to err on the side of caution.
Are the First Amendment issues properly before the Supreme Court?
Fox argues that “this is not a run-of-the mill administrative law case.” It states that the “800-pound gorilla in the corner of the room that petitioners [the FCC] choose to ignore is the First Amendment.” Consequently, Fox argues that constitutional review of the FCC’s change in policy is more important than any deference due to the FCC under administrative procedural law.
The FCC’s response to Fox’s constitutional argument is first and foremost procedural in nature. The agency asserts that the Supreme Court should remand all constitutional law issues back to the Second Circuit. The FCC stresses that the Supreme Court is “a court of review, not of first view.” It urges the Supreme Court to adhere to its policy of declining to consider arguments that were not ruled on in the court of appeals. Furthermore, the FCC emphasizes that Fox did not file a cross-petition (for certiorari) in this case, and cites the Supreme Court’s own rule that “judgment may not be altered in favor of a respondent that has not filed a cross-petition.” Finally, the FCC asserts that Fox’s constitutional arguments exceed the scope of the issues of this case. The FCC argues that Fox’s “constitutional arguments amount to an attack on the regulation of broadcast indecency in general, rather than the specific change in policy at issue.”
In response to the FCC’s argument that respondents are barred from their First Amendment claims in this case because they did not file a cross-petition, the broadcasters cite the Supreme Court’s 1994 ruling in Northwest Airlines, Inc. v. County of Kent. In that case, the Supreme Court found that when a “party seeks to preserve, and not to change, the judgment,” a prevailing party “need not cross-petition”; it may “defend [that] judgment on any ground properly raised below.” Applying that law to the facts of this case, the broadcasters argue that if the Supreme Court affirms the Second Circuit’s decision on constitutional rather than statutory grounds, it would not “modify the judgment so as to require a cross-petition.”
Does the FCC’s definition of ‘indecency’ exceed the scope of restrictions on free speech allowed by 18 U.S.C. § 1464?
The FCC states that although the First Amendment protects the right to free speech, 18 U.S.C. § 1464 limits this right. Section 1464 states that “whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” The FCC argues that in passing § 1464, Congress gave the FCC the right to prohibit language that it judges “indecent.”
The FCC asserts that its definition of “indecent” is based on FCC v. Pacifica Foundation. In that case, the Supreme Court stated that the conceptof ‘indecent’ is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs at times of the day when there is a reasonable risk that children may be in the audience.” The FCC’s two-part definition of “indecency” is that “first, . . . the material must describe or depict sexual or excretory organs or activities” and “second, the material must be patently offensive as measured by contemporary community standards.”
NBC Universal, Inc., NBC Telemundo License Co., CBS Broadcasting Inc., and ABC, Inc.’s (“Broadcasters”) argue that the FCC’s definition of “indecency” is impermissibly vague and lacks a reasonable explanation. To support their assertion, the Broadcasters cite the Supreme Court's 1997 decision in Reno v. ACLU, where the Court stuck down the following definition of “indecency”: “any . . . communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” Arguing that the Reno definition is “materially identical to that employed by the Commission,” the Broadcasters state that, like the definition in Reno, the Court should find the FCC’s definition as “lacking the precision that the First Amendment requires when a statute regulates the content of speech.”
Is the FCC’s regulation narrowly tailored to its interest in protecting children?
The FCC argues that a regulation is valid as long as it serves a substantial government interest and is narrowly tailored to further that interest. Fox claims that “to be narrowly tailored, a regulation must represent the least restrictive means to address the relevant government interest.” With that in mind, Fox argues that the FCC’s change in policy is not the least restrictive means of achieving the government’s interest in protecting children from exposure to indecent language. Specifically, Fox claims that the V-Chip is an “effective alternative to a content-based ban on speech.” Fox states that “the V-Chip allows parents to use a standardized rating system to pre-set their televisions to block the content of programming and ensure that their children are not exposed to potentially offensive language or other content they may deem inappropriate.” at 46.
The FCC, however, claims that its policy is narrowly tailored, because it only restricts programming in between 6 a.m. and 10 p.m. It states that an appellate court cannot find that a regulation is invalid simply because there may be a less restrictive means by which the government could further its substantial interest. In addition, the FCC argues that the V-Chip is not an effective means for the government to achieve its interest in protecting children. The FCC contends that in the events underlying this action, the V-Chip would have been ineffective in protecting children because the two broadcasts in question were mis-rated, “so that even a parent with full knowledge of the V-Chip and the television rating system who sought to use those tools to shield her child from indecent language would have been unable to do so.”
This case turns on administrative and constitutional questions that could ultimately alter the availability of live broadcasting and the amount to which children are exposed to offensive television content. Respondent Fox argues that the Federal Communications Commission (“FCC”) did not sufficiently explain the reasoning behind its indecency policy change, which makes one fleeting use of “fuck” or “shit” indecent, and that the policy is unconstitutional under the First Amendment because it restricts free speech. The FCC, on the other hand, contends that it thoroughly explained the reasoning behind its indecency policy and that the policy avoids two unacceptable extremes: a likely unconstitutional blanket prohibition on expletives and unlimited use of expletives by broadcasters.
Respondent broadcasters argue that the Supreme Court’s decision could endanger live programming if the Court approves of the FCC’s indecency policy. The Washington Post reports that because one use of profanity can cost as much as $325,000, broadcasters may have a fiduciary duty to their shareholders to limit or stop live broadcasting. Furthermore, the American Civil Liberties Union (“ACLU”) argues that small broadcasters may not be able to afford even one fine from a live broadcasting slip. Public broadcasters, including PBS and NPR (“Public Broadcasters”), point out that a single expletive broadcast on all 356 PBS stations could result in a $115 million fine. As a result, the Public Broadcasters argue, the FCC’s policy could prompt broadcasters to self-censor any conceivably offensive material, which could prevent a full and fair presentation of broadcasted material.
Broadcasters also argue that a ruling in favor of the FCC’s policy would make it impossible to predict what might be indecent. The ACLUnotes that the FCC sometimes allows expletives when they are essential to artistic expression or when they are stated as part of a news program, but the FCC’s unpredictable methods of determining what merits artistic or journalistic exemption could lead to unconstitutional censorship by the government. The ACLU further argues that if the Supreme Court rules in favor of the FCC, the FCC’s determination of what constitutes artistic necessity may unintentionally further cultural stereotypes. For example, the FCC found the use of “fuck” and “shit” to be indecent in “The Blues,” a PBS documentary about mostly African-American blues musicians, but found the more frequent use of “fuck” and “shit” in the mainstream movie “Saving Private Ryan” to be an essential artistic element of the movie.
FCC’s amici Parents Television Council, however, argues that if the Supreme Court rules in favor of the broadcasters, 18 U.S.C. § 1464—the statute that authorizes the FCC to punish the broadcasting of indecent language—will become nothing more than a “polite fiction.” .In addition, the Center for Constitutional Jurisprudence argues that if the Supreme Court decides in favor of the broadcasters, the FCC might not be able to respond to the increasing frequency at which indecent material is being broadcasted. Indeed, National Religious Broadcasters (“NRB”) argues, a decision in favor of the broadcasters could force the FCC to evaluate the decency of broadcast material with a rigid rule that does not account for the nuances that many artistic programs present.
Furthermore, Morality in Media emphasizes that a decision in favor of the FCC is crucial to the development of children, whose vocabularies can instantly expand after hearing a single use of an expletive. Morality in Media offers anecdotal evidence from newspaper articles to show that children’s use of foul language can lead to negative school environments, where students may show little respect for their peers and educators. NRB also argues that if the Supreme Court decides in favor of the broadcasters, children will be negatively affected because hearing a single use of an expletive could make it harder for children to understand the “fine line” that can divide lawful and unlawful use of expletives toward other people.
The Supreme Court’s decision either way will adjust the balance between the interests of broadcasters, artists, and journalists who claim that the FCC’s indecency policy restricts free speech, and parental and religious advocacy groups who believe that the FCC’s indecency policy helps protect children from harmful exposure to offensive material.
The Court’s decision in this case will be the first time that it rules on the FCC’s policy regarding indecent broadcasts since 1978, when it upheld the FCC’s authority to regulate indecency. In this case, the Court will decide the issue of whether an isolated expletive can merit sanction. Legally, the Court’s decision in this case could have administrative and constitutional repercussions regarding the limits on the amount of deference due to an administrative agency and the extent to which 18 U.S.C. § 1464 limits the right to free speech under the First Amendment. Practically, the Court’s ruling may affect the programming that viewers have access to on network television.
The authors would like to thank Professor Steven H. Shiffrin for his insights into this case.