FCC v. Fox Television Stations and the FCC's new fleeting expletive policy.

• Author: Barton, Jerome A.

1. INTRODUCTION II. THE PACIFICA CASE AND THE FIRST AMENDMENT STATUS OF INDECENT SPEECH III. THE FCC'S NEW FLEETING EXPLETIVES POLICY IV. FOX TELEVISION STATIONS E FCC; THE SECOND CIRCUIT DECISION V. FCC v. FOX TELEVISION STATIONS: THE SUPREME COURT DECISION A. Justice Scalia's Decision for the Court B. Justice Kennedy's Concurrence C. The Dissents: Justices Stevens, Breyer, and Ginsburg. 1. Justice Stevens's Dissent 2. Justice Breyer's Dissent 3. Justice Ginsburg's Dissent D. Justice Thomas's Concurrence VI. CBS CORP. V. FCC: THE JANET JACKSON CASE VII. THE FCC's NEW FLEETING EXPLETIVE POLICY AND THE SUPREME COURT--THE FUTURE I. INTRODUCTION

   In the nearly forty years since the beginning of the FCC's regulation of indecency, that regulation has expanded greatly. The FCC's indecency policy had its origin in an FCC case decided in 1970. (1) That case emphasized the narrow scope of FCC indecency regulation. In FCC v. Fox Television Stations, the fleeting expletive case, the Supreme Court further extended the life of this policy. (2) A fleeting expletive refers to the broadcast of a single expletive. (3) Until recently, the broadcast of a fleeting expletive did not violate the FCC's indecent speech policy. (4) To understand fleeting expletives, some background on the concept of indecent speech is necessary. FCC indecency regulation is based on a statute, 18 U.S.C. [section] 1464, which provides that broadcasting "any obscene, indecent or profane language" is subject to fine or imprisonment. (5)

   Originally, this statute was enforced by the Department of Justice. (6) But enforcement of the statute has shifted to the FCC, perhaps because the Department of Justice was concerned about enforcing a statute which criminalized the use of language. In 1960, Congress gave the FCC authority to enforce 18 U.S.C. [section] 1464 pursuant to 47 U.S.C. [section] 503(b)(1), which provides that 18 U.S.C. [section] 1464 can be enforced by forfeiture or fines. (7) In recent years, some of the fines imposed by the FCC on broadcasters have been quite substantial. For example, the FCC fined CBS $550,000 for the Janet Jackson incident during the 2004 Super Bowl. (8)

2. THE PACIFICA CASE AND THE FIRST AMENDMENT STATUS OF INDECENT SPEECH

   The FCC gave a separate definition to the word "indecent" in the statute cited in Pacifica, (9) which involved the broadcast of George Carlin's "Filthy Words" monologue. (10) Carlin was satirizing an FCC policy launched in 1970, which stated that gratuitous and repeated use of two dirty words-I leave it to you to surmise the words---constitutes a violation of the statute. (11) The FCC defined the word "indecency" in Pacifica as follows: "language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience." (12) The FCC ruled that Carlin's broadcast violated that standard. (13)

   On appeal, the U.S. Supreme Court set forth the actual facts of the case, which were quite simple. (14) The Court recounted how a father driving with his son at two o'clock on an October afternoon in 1973 turned on the radio. (15) He then heard George Carlin reciting the seven most commonly used swear words in English. (16) Carlin repeated the words over and over again. (17) In doing so, Carlin was expressing his contempt for the FCC's ban on the two dirty words by expanding it to seven dirty words. The boy's father complained to the FCC. (18) The FCC issued a declaratory order granting the complaint. (19) The FCC declared that its indecency policy had been violated and announced that the order would be associated with the broadcaster's license file. (20) The FCC warned that, if additional complaints were made concerning the broadcaster, the FCC would then decide whether to use the various sanctions set forth in the Communications Act. (21) The U.S. Court of Appeals for the D.C. Circuit reversed (22) on the ground that the FCC order violated the anticensorship provision of the Communications Act. (23)

   In FCC v. Pacifica Foundation, the Supreme Court reversed the Court of Appeals and upheld the FCC's indecency policy as applied in the Carlin case and, thereby, recognized a new category of speech--indecent speech. (24) Indecent speech, unlike obscene speech, is supposedly fully protected, and yet it can be regulated. (25) Justice Stevens pointed out that the FCC had emphasized that the time of day was critical. What is not permissible to broadcast at two o'clock in the afternoon may well be permissible in the wee hours of the morning when children are not likely to be in the audience. (26)

   At the Supreme Court, Pacifica argued that the word "indecent" was simply a synonym for obscenity and that, since the broadcast did not violate the Miller v. California (27) obscenity definition, enforcement was not authorized by the statute. (28) The Court disagreed and ruled, as had the FCC, that each of the words in the statute had a separate and discrete meaning. (29) The Court did not think that the First Amendment was violated. (30) The Court stressed that the broadcast occurred at an hour when children could be expected to be in the audience. (31) Broadcasting, furthermore, was different from other media and was, therefore, subject to greater regulation than other media for two reasons: (1) broadcasting had a "uniquely pervasive presence" (32) in our society, and (2) broadcasting was "uniquely accessible to children." (33) These two reasons were the rationale for the Pacifica holding. (34)

   The single broadcast as to which the Pacifica Court gave a very specific interpretation has led to the creation of an indecency prohibition which has had a substantial impact on broadcasting. As Justice Scalia's opinion for the Court in Fox Television Stations points out, (35) the Public Telecommunications Act of 1992 bans indecency on commercial radio and television from six o'clock in the morning to ten o'clock at night. (36)

3. THE FCC'S NEW FLEETING EXPLETIVES POLICY

   FCC v. Fox Television Stations resulted from notices of liability sent by the FCC to Fox Television Stations that the FCC's indecency policy had been violated by its broadcasts. (37) Two of these broadcasts were deemed actionable by the Fee. (38) The first broadcast arose out of the 2002 Billboard Music Awards which Fox Television broadcasted. (39) During the course of the broadcast, the singer Cher said, "I've also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** 'em." (40) The second broadcast arose out of the 2003 Billboard Music Awards, where Nicole Richie and Paris Hilton, stars in the television show The Simple Life were presenters of an award. (41) During her presentation, Nicole Richie said, "[h]ave you ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple." (42) Until 2004, these broadcasts would not have violated the FCC's indecency policy because the FCC's position was that "fleeting or isolated" expletives were not objectionable. (43) The use of such words had to be repetitive or gratuitous. (44) But, in 2004, in its Golden Globe Awards Order, the FCC changed its policy and ruled that a single expletive could be actionable. (45) In the Golden Globe Awards case, the Supreme Court summarized, in dicta, the FCC's 2004 Order with the following: "F- and S-Words could be actionably indecent, even when the word is used only once." (46)

   During the Golden Globe Awards, performer Bono had commented, "[t]his is really, really, f***ing brilliant." (47) The Golden Globe case acknowledged that existing law would have permitted that broadcast. (48) The FCC acknowledged that NBC, which had broadcasted Bono's comment, did not have notice of the change in policy. (49) Therefore, no penalty was imposed. (50) But in 2006, the FCC published notices of apparent liability to broadcasters who had carried the Cher and Nicole Richie broadcasts of so-called fleeting expletives. (51)

4. Fox TELEVISION STATIONS V. FCC: THE SECOND CIRCUIT DECISION

   The broadcasters affected by the notices petitioned the Second Circuit for review and challenged the new policy on both constitutional and statutory grounds. (52) The FCC, however, had not previously given the affected parties an opportunity to respond to the indecency charges. (53) This opportunity had not been afforded, the FCC said, because it had not imposed sanctions. (54) And the FCC had not imposed sanctions because this was not only a new policy but also a reversal of policy. (55) The FCC, therefore, asked the Second Circuit for a voluntary remand so the parties could present their objections to the FCC. (56) The FCC then issued an order on remand upholding its findings that the broadcasts were indecent. (57) A three-judge panel of the Second Circuit held, per Judge Pooler, two-to-one, that the FCC's reversal of its fleeting expletives policy was "arbitrary and capricious under the Administrative Procedures Act." (58) The Second Circuit panel held that the FCC had failed to provide a satisfactory explanation for now holding that fleeting expletives could be actionable when it had specifically ruled in the past that they were not subject to sanction. (59) Interestingly, in the final part of its opinion, the Second Circuit panel noted that it had refrained from ruling on the constitutional challenges presented by the petitioners. (60) But at the same time, the panel observed that it was "skeptical" that the FCC could provide a reasoned explanation for its fleeting expletives regime that "could nevertheless provide the requisite clarity to withstand constitutional scrutiny." (61) The panel said it was sympathetic to the contention of the networks that the FCC's indecency test was "undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague." (62)

   The Second Circuit panel...