From one (expletive) policy to the next: the FCC's regulation of "Fleeting Expletives" and the Supreme Court's response.

• Author: Almas, Brandon J.

1. INTRODUCTION II. THE CASE: FEDERAL COMMUNICATIONS COMMISSION V. FOX III. FOUR MODELS OF JUDICIAL DECISION MAKING A. The Legal Model B. The Attitudinal Model C. The Strategic Model D. The Historic-Institution Model IV. EXPLAINING FEDERAL COMMUNICATIONS COMMISSION K FOX IN TERMS OF THE FOUR DOMINANT MODELS OF JUDICIAL DECISION MAKING A. The Shortcomings of the Legal Model and Historic-Institutional Model 1. The Legal Model--A Beacon of Unsophistication. 2. The Historic-Institutional Model--Unrealistic and Fatally Flawed? B. Getting There? The Strategic Model as a Possible Explanation for the Outcome of Federal Communications Commission v. Fox C. Attitudinalism--The Proven Model Proves Itself Again D. Why It All Matters--Implications of the Finding that Attitudinalism Predominates Judicial Decision Making. V. JUSTICE SONIA SOTOMAYOR'S FIRST AMENDMENT RECORD ON THE COURT OF APPEALS AND OTHER SIGNS OF HER ATTITUDE TOWARD THE FIRST AMENDMENT A. Sotomayor's Judicial Record on First Amendment Issues B. Additional Indications of Sotomayor's View of the First Amendment C. The Remaining Justices' Attitudes on the Fleeting Expletives Issue VI. CONCLUSION: THE FUTURE OF FLEETING EXPLETIVES BASED ON THE CURRENT COMPOSITION OF THE COURT I. INTRODUCTION

   "[T]his is really, really fucking brilliant. Really, really great," exclaimed U2 front man Bono during his acceptance speech for "Best Original Song" at the 2003 Golden Globe Awards, resulting in a deluge of complaints to the FCC. (1) In response, the FCC's Enforcement Bureau issued a Memorandum Opinion and Order finding that "[t]he word 'fucking' may be crude and offensive, but, in the context presented here, [it] did not describe sexual or excretory organs or activities." (2) The bureau further mentioned, "when offensive language is used as an adjective to emphasize an exclamation ... or it is used as an insult ..., then it falls beyond the scope of the indecency regime." (3)

   Upset with the decision, a group of people affiliated with the Parents Television Council (PTC) pressured the FCC until the agency finally agreed to revisit the bureau's prior decision. (4) In a Memorandum Opinion and Order released on March 18, 2004, the FCC departed from its prior position and promulgated a new policy concerning the fleeting--or nondeliberate, nonrepetitive, and otherwise isolated--use of expletives on public airwaves. (5) Although the Order indicated that it would be inappropriate to punish NBC in this case since the network did not have adequate notice of the new policy, the FCC was clear that the fleeting or incidental use of expletives would be subject to punishment in the future. (6)

   As a result, a number of broadcast networks sought legal reprieve in the Second Circuit, arguing that the new policy was both arbitrary and capricious under the Administrative Procedure Act (APA) and unconstitutional under the First Amendment. (7) In an opinion by Judge Rosemary S. Pooler, writing on behalf of a three-judge panel, the Second Circuit agreed that the new policy was arbitrary and capricious, but opted to bypass the constitutional question for the time being. (8) The FCC subsequently petitioned the Supreme Court for review, and on March 17, 2008, the Supreme Court granted certiorari. (9)

   In a somewhat surprising opinion authored by Justice Scalia, the Supreme Court reversed the decision of the Second Circuit. Like the Second Circuit, however, the Supreme Court did not address the First Amendment issue underlying the FCC's policy, and instead based its decision on the premise that the policy was "entirely rational" and therefore neither arbitrary nor capricious. (10)

   Despite the Court's opinion, the controversy surrounding the use and regulation of expletives on the public airwaves was not dead. Not too long ago, in fact, the issue made headlines following the September 26, 2009, season debut of Saturday Night Live, during which one of the comedians, Jenny Slate, inadvertently said the word "fucking" as opposed to the word "freaking," in a planned skit. (11) Even more recently, on July 13, 2010, the Second Circuit, on remand from the Supreme Court, determined that the FCC's policy concerning fleeting expletives is unconstitutional in violation of the First Amendment. (12)

   With national attention again focused on the issue of fleeting expletives, it has become worthwhile to evaluate the Supreme Court's decision in Federal Communications Commission v. Fox to determine what led to the result in that case. It is also important to consider what might happen now that Sonia Sotomayor has replaced David Souter and Elena Kagan has replaced John Paul Stevens. After considering four prevailing models of judicial decision making, this Note contends that Supreme Court Justices decide cases predominately in accordance with their judicial attitudes and personal ideologies. Consequently, based on the ostensible attitudes of the current Justices, if the Court soon addresses the First Amendment issue, it seems that the outcome will likely favor the broadcasters.

   This Note begins in Part II by discussing in more depth the decisions by the Second Circuit as well as the decision by the Supreme Court. Part III of this Note evaluates the four leading models of judicial decision making--the legal model, the attitudinal model, the strategic model, and the historic-institution model--and posits that the attitudinal model has achieved the greatest record of success when it comes to predicting and explaining the outcome of various cases. Part IV applies these four models to the Supreme Court's decision in Federal Communications Commission v. Fox, concluding ultimately that the attitudinal model provides the most coherent explanation for the outcome, and thereby leading to the implication that the result of a future fleeting-expletives case hinges mostly on the composition of the Court. Part V then sets up a prediction for how the fleeting expletives issue will ultimately be resolved by considering the judicial attitudes of recent appointee Sonia Sotomayor as well as the apparent attitudes of the remaining Justices, including the recently confirmed Elena Kagan. The Note generally concludes that if a First Amendment challenge surfaces before the Court, the Court will most likely invalidate the FCC's current policy, paving the way for a new era in the regulation of broadcast media.

2. THE CASE: FEDERAL COMMUNICATIONS COMMISSION V. FOX

   After the FCC came out with its new policy governing the use of fleeting expletives, Fox Television Stations, along with CBS, WLS, KRTK, KMBC, and ABC, appealed to the Second Circuit, asking the court to consider whether the policy was legally justified. (12) A number of other parties, including NBC, FBC, and the Center for the Creative Community, joined as intervenors. (13) Although the impetus for the FCC's policy change was the controversy surrounding the 2003 Golden Globe Awards, the facts that gave rise to the case involved four particular broadcasts that were allegedly indecent, albeit retroactively, under the Golden Globe Order.

   The first was Fox's broadcast of the 2002 Billboard Music Awards. Similar to the events of the Golden Globes, musician Cher caught Fox off guard during an acceptance speech when she said, "People have been telling me I'm on the way out every year, right? So fuck 'em." (14) The second was at the 2003 Billboard Music Awards, where one of the show's presenters, Nicole Richie, rhetorically inquired, "[h]ave you ever tried to get cow shit out of a Prada purse?" and then retorted, "[i]t's not so fucking simple." (15) The third involved a series of broadcasts of ABC's NYPD Blue, in which one of the characters, Detective Andy Sipowicz, used the words "bullshit," "dick," and "dickhead." (16) The last concerned a broadcast of CBS's Early Show in which one of the contestants on the show Survivor called another contestant a "bullshitter." (17)

   Shortly after the case was filed, the FCC moved for a voluntary remand to give the FCC a chance to address petitioners' arguments. (18) The FCC then issued its Remand Order, (19) which replaced the Golden Globe Order but reaffirmed the FCC's finding that the 2002 and 2003 Billboard Music Award broadcasts were indecent and profane, meaning that the broadcasts depicted or described sexual or excretory activities. (20) The Remand Order reversed the decision against the Early Show, finding it to be a bona fide news program and dismissed the claim against NYPD Blue on the basis that the questionable language occurred during the safe harbor time period. (21) Fox then moved for review of the Remand Order and filed a motion to consolidate that appeal with the one already before the court. (22)

   On appeal, Fox and the other petitioners raised several arguments, but because the court agreed with Fox that the FCC's policy was arbitrary and capricious, it went no further in its analysis. When evaluating an agency decision under the arbitrary and capricious standard, courts typically require the agency to examine the pertinent facts and provide a satisfactory explanation for its action. As the Second Circuit indicated, there must be a "rational connection between the facts found and the choice made." (23) This review is narrow, and it is not the job of the court to substitute its judgment for that of the agency. (24)

   Using this framework, the Second Circuit found that the FCC's policy was arbitrary and capricious because it represented a complete shift from previous policy, the reason for which was unclear. (25) Prior to 2003, for example, the "FCC had consistently taken the view that isolated, nonliteral, fleeting expletives did not run afoul of its indecency regime." (26) Recognizing as much, the FCC agreed that it was making a change, saying "[i]n the Golden Globe Order, the Commission made clear that it was changing course with respect to the treatment of isolated expletives." (27)

   The court then determined that the FCC's...