By a narrow 5-4 vote, the U.S. Supreme Court on Tuesday ruled that the Bush Federal Communications Commission acted reasonably in banning even the single-time utterance of “fleeting expletives” over broadcast airwaves.
But the decision in FCC v. Fox Television Stations, which was based on principles of administrative law, stopped short of deciding whether the ban violates the First Amendment, as broadcasters had argued. The high court sent the case back to the U.S. Court of Appeals for the 2d Circuit for further proceedings, including an examination of the constitutional issue.
Since the 2d Circuit has already expressed doubt about the ban’s constitutionality, the decision Tuesday may prove to be a short-lived vindication for the policy. And significantly, the four dissenters, joined by Justice Clarence Thomas, who was in the majority, expressed serious doubts about the constitutionality of the policy.
“It was disappointing, but the First Amendment issue is potentially much more important,” said Carter Phillips of Sidley Austin, who argued the case on behalf of Fox and said he will return to the 2d Circuit to make the First Amendment argument. “We have a lot of tailwind from the dissents and Thomas.”
For years, one-time or inadvertent indecent expression was viewed as a minor violation of the long-standing FCC rule against broadcast indecency, if it was a violation at all. But that changed in 2004, when the commission ruled that Bono’s use of the “f-word” on a live award show was deemed “patently offensive.” The commission did not levy fines, however, to give networks time to adjust to the new policy.
In announcing the opinion, Justice Antonin Scalia said, “It was rational for the agency to step away from its old regime” under principles that govern policy changes made by government agencies. “The agency’s judgment on this matter merits deference, and in any event makes entire sense.”
Scalia said improved technology enables broadcasters to “bleep” indecent language even on live shows, making adherence to the policy unburdensome. Critics of the policy objected that small-town broadcasters can’t afford that technology and might be scared off airing live events. But Scalia said, “Small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood.”
In announcing the opinion, as well as in the text of the decision, Scalia used euphemisms and asterisks instead of the real words at issue.
Amused spectators in the court on Tuesday listened as Scalia quoted the off-color comments made during live Fox award shows in 2002 and 2003 by Cher and Nicole Richie, respectively. During one of the shows Scalia said, Cher told critics, “So f*** ‘em.” He also cited Richie’s comment about her former reality TV show called The Simple Life. “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple,” Scalia quoted Richie as saying. When the commission served notice on Fox of violations of its new policy, Fox took it to court.
Scalia was joined in the majority by Chief Justice John G. Roberts Jr., Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.
But Thomas, though he joined the majority Tuesday, expressed misgivings about the court’s long-standing precedents that give broadcasters less First Amendment protection than other media in which a wider range of expression, including indecent language, is allowed.
Thomas said that because of the explosion of other media formats including cable, satellite and Internet transmission, traditional broadcast television is no longer the “uniquely pervasive” medium that might once have justified different treatment under the First Amendment.
“Today’s decision, while disappointing, is likely to be only a temporary reprieve,” said American Civil Liberties Union legal director Steven Shapiro in a statement. “The FCC’s renewed effort to act as national censor cannot survive serious constitutional scrutiny.”
For now, however, “The court’s decision leaves broadcasters in a quandary,” says former FCC lawyer Charles Zielinski, now counsel to Bryan Cave’s Washington office. Even thought the ultimate constitutionality of the policy is in doubt, Zielinski said, “If they include the fleeting use of an expletive in a live broadcast they run the risk of FCC sanctions.”
Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen G. Breyer and David H. Souter dissented.
Stevens criticized the FCC’s “shifting and impermissibly vague indecency policy,” and said the majority had failed to distinguish between the sexual or excretory meanings of the words at issue and use of the words to express an emotion.
“As any golfer who has watched his partner shank a short approach knows,” Stevens said, “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.”
Tony Mauro can be contacted at firstname.lastname@example.org.