Client Alert

In a 5-4 decision the Supreme Court has upheld the FCC’s order against Fox Television for having broadcast two instances of isolated indecent words (that is, the "F-Word" and "S-Word," as the Court rather squeamishly referred to them). However, while approving the FCC’s approach, the Court left unresolved the essential question of whether the Commission's policy meets Constitutional requirements.

The majority opinion by Justice Scalia concluded that the FCC's decision was sufficiently reasoned to avoid being overturned as "arbitrary and capricious." It interpreted this standard, mandated by the Administrative Procedure Act for review of agency decisions, as merely requiring an agency to provide good reasons to explain why it is changing an existing policy, rather than requiring it to demonstrate the superiority of its reasoning for a new policy over its earlier justification for the prior one.

Applying that legal standard to the Fox case, the majority found that the FCC recognized that it was changing its former policy (in which isolated, fleeting expletives were generally tolerated), that it made no sense to distinguish between literal and nonliteral uses of offensive words (that is, the words' power to insult and offend are inseparable from their sexual and excretory meanings), and that technological advances have made it easier for broadcasters to bleep out offending language. The majority deferred to the FCC's predictive reasoning, as empirical evidence of the harmful effect of profanity on children would be impossible. ("One cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent broadcasts ... and others are shielded from all other indecency.") The Court further noted that the Commission's "first blow" theory of harm (that is, that once a child is exposed to even a single indecency, it is too late to prevent harm) does not rule out consideration of context or circumstances, as evidenced by the FCC's declining to punish the prime-time broadcast of the expletive-laced Saving Private Ryan. The Court upheld as "logic rather than clairvoyance" the assumption that complete immunity for fleeting expletives would lead to a substantial increase of broadcast indecency.

Perhaps significantly, the majority left open some flexibility for local broadcasters, drawing a distinction between Fox, "a large broadcaster that used suggestive scripting and a deficient delay system to air a prime-time award show aimed at millions of children," and "smaller broadcasters who cannot afford screening equipment … [and who] would not be punished for failing to purchase equipment they cannot afford." Clearly, the Court had far more sympathy for the needs of "conscientious parents [seeking] a safe haven for their children" amid the pervasiveness of foul language nowadays than for "foul-mouthed glitteratae from Hollywood."

Justice Thomas (part of the majority), wrote a separate opinion in which he concurred in the result under administrative law, yet questioned the modern relevance of the Red Lion and Pacifica cases in which the Supreme Court had distinguished broadcasting from newspapers and upon which FCC indecency regulation has been based. Justice Thomas specifically noted that the reason for disparate First Amendment treatment of the media has been eviscerated by "dramatic technological advances."

Justice Kennedy, who provided the swing vote, concurred in the majority decision that the FCC's reasoning for its policy change was sufficient, but wrote to express his particular concern that "we must reserve judgment on the question whether the agency's action is consistent with the guarantees of the Constitution," thus holding the door open to a far different disposition of the matter once a lower court does tackle the First Amendment issues that the Supreme Court has ducked for now but which could invalidate the entire scheme of FCC regulation at some point in the future.

Justice Breyer issued the primary dissenting opinion in which he held that a change of policy indeed requires a more complete explanation than when adopting an initial rule – and that the FCC had failed to explain what had changed to warrant its new absolute approach. He further discussed the potential chilling impact of liability under the new policy upon local broadcasting and diversity of viewpoints, especially when covering live events. He further doubted, in the absence of an explicit FCC-stated exception, that smaller broadcasters could take much comfort from the possibility that they might not be fined under certain unstated circumstances.

While there will be much analysis of the Court's decision, it is clear that the final words are yet to be written on the subject of broadcast indecency. On the other hand, it is far from clear whether the FCC will use this ambivalent guidance as a green light to clear its backlog of pending renewal cases in which allegations of indecency have been raised, or whether it will feel compelled to conduct individual assessments of context. Acting Chairman Copps has already released a statement hailing the decision as "a big win for America's families. The Court recognized that when broadcasters are granted free and exclusive use of a valuable public resource, they incur enforceable public interest obligations. ... The Court's decision should reassure parents that their children can still be protected from indecent material on the nation's airwaves."

We will keep you advised as this area of law continues to develop.

If you have any questions regarding the content of this Client Alert, please contact Peter Gutmann, or any member of the firm's Communications Law Group.