Michael C. Dorf

The Supreme Court Upholds the FCC's Policy on "Fleeting Expletives"

By MICHAEL C. DORF
Monday, May 4, 2009

Last week, in FCC v. Fox Television Stations, Inc., the Supreme Court upheld a policy established by the Federal Communications Commission (FCC) in 2004, under which television and radio broadcasters could be disciplined for airing "fleeting expletives"—that is, isolated uses of profanity during live shows.

As Julie Hilden explained in two prior columns on this site (here and here), the case did not directly present what most Americans would likely regard as the core legal issue raised by FCC regulation of profanity: the First Amendment issue. Nonetheless, as both Justices Ginsburg and Breyer noted in dissent, the First Amendment cast, or at least should have cast, a "shadow" over the administrative law grounds upon which the challenge to the FCC policy rested.

In this column, I shall highlight the key administrative law and First Amendment issues addressed by the Court in Fox Television Stations. I shall then turn to a peculiarity of the case: the fact that neither the majority opinion, nor any of the five concurring and dissenting opinions, uses the actual expletives involved in the case—"shit" and "fuck"—in describing the facts or the FCC policy. The Justices' substitution of the terms "S-Word" and "F-Word" in an opinion that is not likely to be read by more than a handful of minors, casts doubt on the claim that the underlying FCC policy, and the statute it interprets, are principally designed to protect children.

Federal Indecency Regulation

A federal statute bans the broadcast of "any obscene, indecent, or profane language." In the 1978 case of FCC v. Pacifica Foundation, the Supreme Court upheld the FCC's determination that the ban applied to a daytime broadcast of George Carlin's "Seven Dirty Words" monologue. That, in itself, was hardly surprising, given that Carlin expressly stated in the monologue that he was identifying words that one could not say on television (or, by implication, radio). In the course of upholding the FCC's determination in Pacifica, the Court noted that Carlin repeated the dirty words "over and over again."

Following Pacifica, the FCC treated the Supreme Court's decision as more or less both a ceiling and a floor with respect to the range of permissible regulation. It was clear that the broadcast of Carlin's monologue or its equivalent would be deemed unlawful, but the FCC exempted fleeting expletives from the rule. If, in the course of a live broadcast, an individual were to be heard to use an isolated profanity, the FCC would not pursue any sanctions.

That policy changed not long ago. The immediate predicate for the new policy was Bono's prime-time statement at the Golden Globe awards: "This is really, really, fucking brilliant." The actual case before the Supreme Court involved sanctions against Fox for two events: Cher's statement about her critics at the 2002 Billboard Music Awards ("fuck 'em") and Nicole Richie's statement about the show "The Simple Life" at the 2003 Billboard Music Awards ("Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple.").

Abandoning any prior per se exception to the indecency ban for fleeting expletives, the FCC sanctioned Fox. In support of the new policy, the FCC cited two main grounds. First, the FCC concluded that recent improvements in "bleeping out" technology made it very easy for broadcasters to present live events without including an occasional profanity. Second, the FCC distanced itself from the prior policy of sharply distinguishing between, on one hand, profanity used to signify sex ("They didn't fuck on the first date") or excrement ("He thinks his shit doesn't stink"), and, on the other hand the same words used simply as intensifiers ("This car is fucking awesome" or "Shit, I lost my wallet"). Profanity used as an intensifier derives its offensiveness from its ultimate connection to sex or excrement, the FCC reasoned, and so the distinction on which the prior policy rested was not sensible. (I shall call this argument into question below.)

Under the federal Administrative Procedure Act (APA), actions by federal administrative agencies can be challenged in court, among other reasons, on the ground that they are "arbitrary" or "capricious." Fox, joined by the other major networks as intervenors, argued in the lower courts that the FCC had indeed acted arbitrarily or capriciously in changing its policy regarding fleeting expletives, and the U.S. Court of Appeals for the Second Circuit agreed. Last week's Supreme Court ruling, however, reversed that decision.

A Key Administrative Law Issue: When Can an Agency Change its Approach?

A number of important but technical issues of administrative law were in play in the various opinions in Fox Television Stations. Here I shall highlight just one of these: Whether an administrative agency that changes a prior policy bears any additional burden of justification that it would not bear were it merely adopting the new policy as an initial matter?

Justice Scalia, who wrote the majority opinion, thought that the answer was no. The APA contains no express requirement that changes in policy are subject to more searching review than first-time policies, and under the landmark 1978 decision in Vermont Yankee Nuclear Power Corp. v. NRDC, the courts are not permitted to impose procedural requirements on federal agencies beyond those mandated by statute or the Constitution. Thus, in Justice Scalia's view, if the FCC offered rational grounds for adoption of its new policy on fleeting expletives, then that was sufficient, regardless of whether the Commission provided good reasons for abandoning the prior policy.

Although Justice Scalia wrote for the Supreme Court majority in Fox Television Stations, his view about a change in the law did not, itself, garner the five votes necessary to comprise a majority. The four dissenters (Justices Stevens, Souter, Ginsburg, and Breyer) were joined on this point by Justice Kennedy, who otherwise joined the balance of Justice Scalia's opinion. Justice Kennedy thought that the FCC was required specifically to justify its policy change, but he also thought that it had done so.

How, in light of the no-additional-procedures rule of Vermont Yankee, did the dissenters and Justice Kennedy explain their requirement that the FCC must offer a justification for the policy change? Justice Breyer resisted Justice Scalia's characterization of his (Justice Breyer's) view as imposing any heightened standard of review. Rather, Justice Breyer said, actions that would not be arbitrary or capricious if undertaken in the first instance, can become so if undertaken as a later change. He provided an evocative example: A policymaker who decides in the first instance that cars should drive on the right side of the road acts rationally because either side is as good as the other; but a policymaker who decides to change the rule from left-side driving to right-side driving must provide a different explanation, because habits will have formed and investments will have been made (in car design, for example) around the expectation of left-side driving.

That example nicely illustrates why the four dissenters plus Justice Kennedy were right in principle: Sometimes a policy change can be arbitrary or capricious even if the policy would have been permissible in the first instance. However, it is not entirely clear that the principle applied in the case before the Court. Any reliance interest that the broadcasters had built in the fleeting expletives exception would have been adequately addressed by the FCC's decision only to eliminate the exception prospectively – not retrospectively.

The First Amendment Issues

So much for administrative law. What about the First Amendment? Although last week's decision in Fox Television Stations did not directly address First Amendment issues, these issues nonetheless entered the discussion in two ways.

First, the dissenters thought that part of what made the FCC policy change impermissible was the agency's failure to provide an adequate explanation for how it was accounting for the First Amendment limits on broadcast regulation. The fleeting expletives exception had been based on a reading of the Pacificacase, but the FCC did not explain why it thought that its prior reading of Pacificawas no longer controlling.

Justice Scalia, speaking for a full majority on this point, rejected the idea that a court could reverse an agency for failing to consider First Amendment issues, at least absent a judicial conclusion that the agency's action was actually a violation of the First Amendment. But it is difficult to see what is wrong with the course proposed by the dissenters. Critics of judicial activism sometimes note that all government officials, and not just judges, have an obligation to consider the constitutionality of their actions. A judicially-imposed obligation that agencies consider constitutional issues should count as a permissible measure designed to disperse, rather than concentrate, authority for constitutional interpretation.

The second appearance of the First Amendment in the case was even more intriguing. Justice Thomas, who joined Justice Scalia's majority opinion, wrote a separate concurrence stating his willingness, in a future case in which the issue is squarely presented, to consider striking down all federal regulation of non-obscene indecency and profanity by broadcasters. Echoing a point that has long been made by commentators across the ideological spectrum, Justice Thomas noted how the rationale for government content regulation of broadcasting—the scarcity of the electromagnetic spectrum—was outdated in light of modern technology.

To be sure, Justice Thomas twisted himself into a jurisprudential pretzel in trying to explain how his view that technological change justified doctrinal change was somehow an exemplar, rather than a repudiation, of his supposedly originalist judicial philosophy. Putting that quirk aside, however, the Thomas concurrence is quite significant in heralding the potential re-examination of a wide swath of communications law.

The Court's Non-Use of the Expletives Themselves

Finally, we come to the Court's peculiar prudishness. It is worth noting that the Court has not always been so squeamish about profanity. In Pacifica, the Court included Carlin's entire Dirty Words monologue as an Appendix. And in the 1971 case of Cohen v. California, the majority opinion of Justice Harlan—arguably the most conservative Justice at the time—noted in the third paragraph that the case involved the display of the phrase "Fuck the Draft" on a jacket.

Since Cohen, the Supreme Court has included variants on the word "fuck" in ten opinions (counting Pacifica). "Shit" appears in seven cases in that period. Since 1970, over 4,500 opinions (including officially unpublished opinions) of the lower federal courts have used one or both of the words "shit" and "fuck." Yet the last Supreme Court opinion to use either of these expletives was the unanimous 1993 decision in Wisconsin v. Mitchell, authored by the late Chief Justice Rehnquist.

What explains the Court's use of the terms "S-Word" and "F-Word" in Fox Television Stations? One possibility is the addition to the Court of Chief Justice Roberts. Since the Mitchell case, four Justices have joined the Court: Ginsburg, Breyer, Alito and Roberts. However, as appeals court judges, Ginsburg, Breyer, and Alito each either joined or authored at least one opinion that used the word "fuck." As far as I have been able to ascertain, by contrast, Chief Justice Roberts has never authored or joined an opinion that used either "fuck" or "shit." Perhaps the original Scalia draft in Fox Television Stations did contain the offending words, but the Chief Justice asked for their removal.

That is just a wild guess, however. Roberts was only briefly a circuit judge, and so it is possible that given the right circumstances, he would write or join an opinion that quoted actual profanity. Thus, we must consider the possibility that the use of the locutions "S-Word" and "F-Word" in Fox Television Stations reflected something other than the current Chief Justice's views about decorum. But what?

The answer, I would tentatively suggest, is that the majority eschewed the actual words in the service of a substantive point—namely, that words such as "shit" and "fuck" are so inherently offensive that they cannot even be used in quotation marks. (The dissenters' failure to use the words, in contrast, can be attributed to the conventions of opinion writing; the dissent typically does not restate facts discussed in the majority opinion, and it was in the fact section of the majority's opinion that the expletives appeared.)

But if Justice Scalia and the balance of the Fox Television Station majority accept the notion that two four-letter words are too offensive even to appear in a Supreme Court opinion, that would belie the stated rationale for regulating non-obscene indecency and profanity in the first place: to protect the tender sensitivities of children. How many children read Supreme Court opinions, after all?

Furthermore, the child-protective rationale is unpersuasive on its face. The FCC said that the "any use of" the word "fuck" "inherently has a sexual connotation." But if the problem is references to sex, then the FCC policy is wildly under-inclusive. One can find hundreds of clear references to sex on prime-time comedy, drama and reality network programming. Why, if the problem with "fuck" is its supposedly inherent sexual content, are these other broadcasts deemed permissible?

Moreover, the FCC rationale is even more problematic with respect to expletives, such as "shit," that refer to excrement. Young children are supremely interested in and amused by references to excrement. Yet the broadcast of a word such as "poop," which young children would much more clearly understand as referring to excrement than the word "shit," is perfectly permissible under the FCC approach. The policy thus cannot plausibly be justified as protecting children against references to sex or excrement.

Instead, the FCC policy, reinforced by Justice Scalia's delicate references to the "S-Word" and the "F-Word," seems to be based on the straightforward normative position that the words "shit" and "fuck" are somehow inherently bad. That view may be widely shared, but it is at bottom a mere assertion, rather than an argument. Even worse, it is an assertion backed by considerably less logic than the contrary claim by George Carlin himself, in the original version of his dirty words monologue. Carlin said: "There are no bad words. Bad thoughts. Bad intentions." Fuck yeah!



Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.

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