Earlier this week the Supreme Court handed down its eagerly awaited decision in FCC v. Fox.  In a 5-4 vote, the Court rejected Fox's argument that the Federal Communication Commission had violated the Administrative Procedure Act (APA) by failing to give sufficient justification for its new policy banning "fleeting expletives" on broadcast radio and television.

Although the administrative law issues raised in the case are interesting (namely, how much of an explanation an agency needs to give when it changes its existing policy), it is much more fun to try to figure out whether the Court would hold the fleeting expletives policy constitutional - or even whether the Court would uphold any part of the FCC's indecency regime. At the end of his opinion, Justice Scalia predicted that the Court will have to address this issue soon, and perhaps even in this very case when it comes back up to the Court.

Regulating Indecent Speech

Before I jump into my read of the Court's decision, let me say a few words about FCC v. Pacifica Foundation, a 1978 opinion in which the Court held that the FCC's then-existing indecency regulations were constitutional.  438 U.S. 726 (1978).  One of Pacifica Foundation's radio stations made an afternoon broadcast of George Carlin's monologue "Filthy Words," which listed and repeated a variety of colloquial uses of "words you couldn't say on the public airwaves," including "shit, piss, fuck, cunt, cocksucker, motherfucker, and tits." (Note that there is obviously no barrier to repeating these words on the Internet! See here, for a verbatim transcript of the broadcast.) 

The FCC's regulation prohibited the broadcast of indecent language, which it defined as "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 concluded that Carlin's monologue met this definition because it referred to excretory or sexual activities or organs, stated that the repetitive, deliberate use of those words in an afternoon broadcast when children are in the audience was patently offensive, and held that the broadcast was indecent.

The Court in Pacifica rejected the First Amendment challenge to the indecency regulation. Writing for the majority, Justice Stevens explained that regulating indecency on broadcast radio and television was appropriate given the "uniquely pervasive" presence of broadcast media in our lives, the ability of broadcasts to extend into the privacy of the home, the difficulty of avoiding offensive broadcasts, and its unique accessibility to children. In a portion of his opinion that only two other Justices joined, Justice Stevens argued that indecent speech "surely lie[s] at the periphery of First Amendment concern" and that a ban on indecent speech would also "have its primary effect on the form, rather than the content, of serious communication."

Pacifica never made sense, even back in 1978 when it was decided. It is in clear tension with my favorite case, Cohen v. California, 403 U.S. 15 (1971) (the "Fuck the Draft" case), where the Court held that the government cannot prevent people from swearing in public, and with Erznoznik v. Jacksonville, 422 US 205 (1975), which struck down an ordinance prohibiting drive-in movies with screens visible from public streets from showing films containing nudity. The Court has also rejected attempts to use the logic of Pacifica (such as it is) to other media, such as dial-a-porn, see Sable v. FCC, 492 US 115 (1989), cable, see Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994), and perhaps the most "uniquely pervasive" medium of them all, the Internet, see Reno v. ACLU, 521 US 844 (1997).

In the 30 years following the Pacifica decision, the FCC gradually expanded its indecency policy, first by expanding its enforcement beyond the repetitive use of certain words or phrases and then to the single utterance of words that literally referred to excrement or sexual activity. In 2003, the FCC held that even when the word "fuck" is used as an "intensifier" it also runs afoul of the indecency policy because "given the core meaning of the ‘F-Word,'" it said, "any use of that word . . . inherently has a sexual connotation." This ruling came in the context of the review of an order that NBC had violated the indecency rules when it aired a broadcast of the Golden Globes where Bono, upon receiving an award, declared, "This is fucking brilliant."

FCC v. Fox

The FCC applied this new policy banning both literal and non-literal uses of certain words like "fuck" and "shit" to two live Fox broadcasts. The first occurred during the 2002 Billboard Music Awards, when the singer Cher exclaimed, "I've also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em." The second involved a segment of the 2003 Billboard Music Awards, during the presentation of an award by Nicole Richie and Paris Hilton, leads in a Fox television series called "The Simple Life." Ms. Hilton began their interchange by reminding Ms. Richie to "watch the bad language," but Ms. Richie proceeded to ask the audience, "Why do they even call it ‘The Simple Life?' Have you ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple." Fox challenged the FCC's ruling, and the Second Circuit held that the FCC's new fleeting expletive policy did not satisfy the APA because the Commission's basis for changing its policy was not reasonable. That court declined to reach Fox's separate constitutional challenge under the First Amendment.

In its opinion this week, the Court reversed the Second Circuit. Justice Scalia wrote for the majority (himself, Chief Justice Roberts, and Justices Kennedy, Thomas, and Alito). Although Justice Scalia made clear that the Court was not addressing the constitutionality of "fleeting expletives" regulation, many of the justifications offered in rejecting the administrative law challenge could be used to reject a constitutional challenge. Here are some of the bigger assertions the majority made:

• It is not necessary for the FCC to produce evidence to show that the broadcast of profanity has a harmful effect on children because such empirical evidence is "unobtainable"; and instead it is enough to recognize as common knowledge that children mimic the behavior they observe.


• Pacifica did not represent the outer boundary of what could be banned on broadcast television and radio.


• The FCC's "context" determinations (where it decides whether expletives are permissible based on the context in which they appear - for example, the FCC has said that expletives can be used "during a bona fide news interviews," which apparently would include an interview with a Survivor contestant on "The Early Show") is not a smokescreen for unbridled discretion, which is usually a huge obstacle to constitutionality.


• Any chilling effect the FCC's policy might have on the broadcast of protected expression was of little concern because "any chilled references to excretory and sexual material ‘surely lie at the periphery of First Amendment concern.'" (quoting a portion of Justice Stevens' Pacifica that did not command a majority).


• The FCC could reasonably conclude that parents had come to count on broadcast television and radio as a "safe haven" for their children "given the pervasiveness of foul language and the coarsening of public entertainment in every other media such as cable" (and the Internet, of course).

All of these propositions are controversial, and all of them are relevant to the issue of whether the FCC's fleeting expletive regulation is constitutional.

So after I finished reading Justice Scalia's majority opinion, I was convinced that the Court would vote to uphold the constitutionality of the "fleeting expletives" policy whenever it decides to address it. It appeared that at least five members of the Court were disgusted with the media generally and longed for a place where upstanding adults like themselves - and America's children, of course - could be safe from random "F" bombs. They also did not seem concerned about giving the FCC virtually unbridled discretion to determine what exactly constitutes indecency. But then I read the concurring and dissenting opinions, and I changed my mind.

Justice Thomas's concurrence gives me hope that the Court might just stop the FCC indecency madness, at least if it ever takes a case where it is forced to decide its constitutionality. Although Justice Thomas signed on to the majority opinion addressing the APA issue, he makes it clear that he thinks Pacifica did not make sense when it was decided, and it makes even less sense now. He forcefully argues that it makes no sense to draw constitutional lines among different types of media, whether print, broadcast, cable, or the Internet, particularly when it can no longer be said with a straight face that broadcast radio and television are "uniquely pervasive" when compared to other media.

Of course even if Justice Thomas is ready to abandon Pacifica, the Court still could find the fleeting expletives policy to be constitutional if Justice Stevens is willing not only to stand by his Pacifica opinion but to expand its rationale. (The magic number is five - and if Justice Stevens joined the others who signed joined Justice Scalia's majority opinion, Chief Justice Roberts and Justices Alito and Kennedy, that magic number would be reached.) Justice Stevens' dissenting opinion in this case makes it clear that he won't do that. Although he states that he and Justice Thomas "disagree about the continued wisdom of Pacifica, . . . 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."

Justice Stevens also argues that Pacifica does not, in fact, authorize the FCC's new policy, because the Court in that case did not decide whether an isolated expletive could qualify as indecent, or that "any word with a sexual or scatological origin, however used, was indecent." Justice Stevens strongly rejects the majority's contention that expletives like "fuck" and "shit" necessarily refer to sex acts or excrement. Drawing on his favorite pastime, Justice Stevens notes that "[a]s 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. But that is the absurdity the FCC has embraced in its new approach to indecency." I don't much like golf, but I am glad to see that Justice Stevens sees how ridiculous the FCC's policy is.

It is possible that even without Justice Stevens, the Court would still strike down the FCC's expansive indecency regulations. Justice Kennedy, who joined Justice Scalia's majority opinion in FCC v. Fox, might also decide that the FCC regulations are unconstitutional. Justice Kennedy is as fickle as the wind, but he has from time to time been a great defender of free speech rights. Justice Kennedy could potentially join Justices Souter (or his replacement), Breyer, Ginsburg, and Thomas to strike down the FCC's indecency policy entirely.

The Supreme Court has sent FCC v. Fox back to the Second Circuit for it to weigh in on the constitutionality of the FCC regulations. Let's hope that court can act quickly (no doubt it would hold the regulations unconstitutional), and that when a new petition for certiorari comes to the Court, it will take the case again and end the FCC censorship regime once and for all.