Supreme Court Finds FCC Fleeting Expletive Censures OK
The FCC’s decision to start censuring the airing of a single curse word didn’t violate the Administrative Procedure Act as broadcasters contended and as the 2nd U.S. Court of Appeals in New York ruled, said a split Supreme Court decision Tuesday. The majority opinion remanded the case to the 2nd Circuit and was written by Justice Antonin Scalia. It was a narrow ruling on procedural grounds -- as expected (CD Nov 5 p4) -- but communication lawyers said it may pave the way for the 2nd Circuit to consider constitutional questions. Until the case is decided and further appeals exhausted, the FCC may lack constitutional guidance on indecency rules, they said.
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Scalia was joined by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas, who issued a concurrence criticizing the constitutionality of indecency enforcement. The main decision said the commission “forthrightly acknowledged that its recent actions have broken new ground” in finding indecent Nicole Richie’s and Cher’s utterances of “shit” and “fuck” in the 2002 and 2003 Fox Billboard award shows. Stations’ ability to “bleep out offending words further supports the Commission’s stepped-up enforcement policy” combined with the fact that kids could “mimic the behavior they observe” and swear after watching “programming replete with one-word indecent expletives,” Scalia wrote.
There’s no reason to find the act requires policy changes, namely the commission’s departure from not finding isolated and accidental broadcasts of swear words, to be “subjected to more searching review,” wrote Scalia for the majority. An agency “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better,” he wrote. Scalia rejected “the invitation” of broadcasters’ First Amendment arguments for the high court to apply a stricter standard of review to the case.
“It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution,” the majority decision said. “If so, whether it is unconstitutional will be determined soon enough, perhaps in this very case.” The 2nd Circuit can “now examine the First Amendment questions” after not doing so in its original decision, Media Access Project President Andrew Schwartzman, a participant in that case, told us.
Thomas’s concurrence said the premise of spectrum scarcity, on which the FCC’s ability to regulate broadcasting is partly based, is outdated. That’s partly why “this deep intrusion into the First Amendment rights of broadcasters, which this Court has justified based only on the nature of the medium, is problematic,” he wrote. “Traditional broadcast television and radio are no longer the ‘uniquely pervasive’ media forms they once were” since most consumers get stations “bundled with cable or satellite services,” Thomas added.
The dissent said the FCC “failed adequately to explain why it changed its indecency policy” and was written by Justice Stephen Breyer. He was joined by Justices Ruth Bader Ginsburg, John Stevens and David Souter. Independent agencies have “broad authority to determine relevant policy” but can’t “make policy choices for purely political reasons nor rest them primarily upon unexplained policy preferences,” wrote Breyer. “Where does, and why would, the APA grant agencies the freedom to change major policies on the basis of nothing more than political considerations or even personal whim?” The commission’s order finding the programs indecent used 28 words to refer to the 1978 FCC vs. Pacifica indecency ruling and doesn’t “explain the transformation of what the FCC had long thought an insurmountable obstacle into an open door,” added Breyer.
The high court’s ruling likely “means several more years of uncertainty” over constitutional questions, said Schwartzman, who represented the Center for Creative Voices in Media. “I don’t think it’s a green light for the commission to start taking aggressive enforcement actions right away.” Broadcast lawyer David Oxenford expects “to hear more about the FCC’s indecency policies in subsequent decisions.” The high court’s “failure to address the constitutional issues at stake” leaves the First Amendment issues open for another case, wrote Adam Thierer of the Progress & Freedom Foundation, a frequent opponent of regulation. The court did recognize that a “constitutional reckoning is still possible,” wrote Free State Foundation President Randolph May, another free-marketeer.
The decision protects kids from indecent programming on the “airwaves,” which have become more “coarse” in recent years, acting FCC Chairman Michael Copps said in a news release. Though Fox would have preferred an APA victory, more important “is the fundamental constitutional issues at the heart of this case,” it said. The broadcast network is “optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts.” The NAB said it’s “disappointed the court majority seemingly failed to understand the need for clear and consistent regulatory policies” and “we question why speech restrictions should apply only to broadcasters.”