When does f*** not mean f***? FCC v. Fox Television Stations and a call for protecting emotive speech.

• Author: Hopkins, W. Wat

1. INTRODUCTION II. FEDERAL COMMUNICATIONS COMMISSION V. FOX TELEVISION STATIONS, INC III. ANTECEDENTS TO FOX TELEVISION STATIONS A. Cohen and Emotive Speech B. Pacifica and "Words You Never Say" IV. CHAPLINSKY, COHEN AND BEYOND V. WHEN DOES F*** NOT MEAN F***? VI. THE F-WORD--THE NEXT ROUND VII. AN EMOTIVE SPEECH DOCTRINE? VIII. BROADCAST MEDIA AND THE FIRST AMENDMENT IX. CONCLUSION I. INTRODUCTION

   Almost since the beginning or its First Amendment jurisprudence, the Supreme Court of the United States has had a love-hate relationship with words. Some words, the Court said early in its free-speech history, are undeserving of First Amendment protection because, in balance, they harm society or do not contribute to the search for truth. (1) The very utterance of such words would "inflict injury or tend to incite an immediate breach of the peace." (2) Other words deserve extra protection because they are "the essence of self-government." (3) These words constitute "speech that matters." (4) For the most part, the Court has been able to delineate a structure to this "hierarchy of First Amendment values," (5) but whether the application of the First Amendment to that structure has been effective is another question. One critic noted, for example, that the Court's use of the theory that "not all speech is of equal First Amendment importance" (6) "has been marked by vacillation and uncertainty." (7) Clearly, the Court's dealings with nontraditional language and conduct can be so categorized. Whether the issue is the discussion of words that cannot be uttered over the airwaves, (8) nude dancers in Pennsylvania, (9) or award-winning musicians uttering profanities on television, (10) the Court has seemingly become befuddled when confronted with expression that is indecent or simply out of the ordinary. (11)

   The Court's confrontation with such slippery topics continued in the 2008-2009 term with FCC v. Fox Television Stations, Inc., (12) a case involving one of the Court's biggest bugaboos--the use of the so-called "f-word." (13) The case did not turn on the use of the offensive word, however, but on the more mundane question of whether the FCC met the requirements of the Administrative Procedure Act ("APA") (14) when it changed its policies relating to the broadcast of indecent language. While federal law prohibits the use of obscene, profane, or indecent language over the airwaves, (15) the FCC, with the blessings of the Court, (16) established that fleeting expletives did not meet the definition of indecency, whereas repetitive use of such words did. (17) When, in 2004, the FCC changed its policy and later took actions against broadcasters for on-air fleeting expletives, (18) it was required by the APA to ensure that such changes and resulting rulemaking were not arbitrary and capricious. (19)

   Whether the FCC met that requirement was the question in Fox Television Stations. It is clear, however, that language was the undercurrent of the opinion. Only Justices Clarence Thomas (20) and Stephen Breyer (21) did not specifically address the use of the f-word. Each of the other Justices at least confronted it, and the use of the word was key to the majority opinion by Justice Antonin Scalia (22) and the dissent of Justice John Paul Stevens. (23) Justices Scalia and Stevens were clearly at odds over both the use and definitions of the word, elements that might play a significant role in the constitutional questions that were avoided in Fox Television Stations (24) but are now at issue. (25)

   A panel of the Second Circuit Court of Appeals held in July 2010 that the FCC's indecency policy was unconstitutionally vague because it created "a chilling effect that goes far beyond the fleeting expletives at issue here." (26) In a bruising attack on the policy, the Second Circuit reported that broadcasters "simply want to know with some degree of certainty what the policy is so that they can comply with it." (27) The broadcasters do not know, however, because the FCC does not know. After summarizing the FCC's application of what it called "a vague, indiscernible standard," the court noted that "[i]f the FCC cannot anticipate what will be considered indecent under its policy, then it can hardly expect broadcasters to do so." (28) The court suggested that strict scrutiny should apply to regulations on broadcast television, in part because the changes in the media landscape over the years have eliminated "the twin pillars of pervasiveness and accessibility to children" as rationales for lessened protection for the broadcast media. (29) But, the court noted, it could not establish that standard because it was "bound by Supreme Court precedent, regardless of whether it reflects today's realities." (30) The FCC may be able to create a constitutional indecency policy, the court indicated, but the current policy fails constitutional scrutiny. (31) In June 2011, the Supreme Court granted certiorari. (32)

   Similar issues are integral to two other cases that will be implicated by a ruling in Fox Television Stations. Earlier this year, the Second Circuit vacated a fine of $1.21 million against ABC affiliate stations imposed by the FCC. (33) ABC, Inc. v. FCC involved a fleeting image rather than a fleeting expletive. The FCC had fined ABC $27,500 for each station that broadcasted an episode of NYPD Blue in which a woman's bare buttocks were shown for approximately seven seconds. (34) "[T]here is no significant distinction between this case and Fox," the court held, (35) and because the indecency policy was held unconstitutionally vague in that case, the FCC order, based on the same policy, was vacated. (36)

   A third case, CBS Corporation v. FCC, (37) is stalled in the Third Circuit. The network is challenging an FCC-imposed fine of $550,000 against CBS-owned television stations for the broadcast of the 2004 Super Bowl Halftime Show. (38) During the performance, entertainer Justin Timberlake pulled a portion of the costume worn by Janet Jackson, exposing Jackson's breast for nine-sixteenths of one second. (39) The FCC maintained that, even if its fleeting expletive protocol was in place, that protocol applied only to fleeting utterances and not to visual images. (40) In its 2008 ruling in the case, the Third Circuit rejected the FCC's argument. Even though the exposure of Jackson's breast was "a deceitful and manipulative act," (41) the FCC's policy on fleeting material was in effect when the exposure occurred, (42) and a review of the FCC's enforcement history demonstrated that the FCC had never limited its fleeting expletive protocol only to utterances. (43) When the FCC took action against CBS, it did so despite a consistent and entrenched policy of excluding fleeting broadcast material from the scope of actionable indecency," (44) and the action against CBS was a departure from prior policy. (45) The action, therefore, was arbitrary and capricious under the APA. (46) Six days after deciding Fox Television Stations, the Supreme Court vacated the judgment in the CBS case and remanded it for consideration in light of its decision. (47) On November 2, however, the Third Circuit again ruled that the action by the FCC was arbitrary and capricious under the APA, primarily because the action occurred prior to the FCC rulings that became the basis for the Fox Television Stations. (48)

   But more than the outcomes of the ABC and CBS cases hinges on the Court's decision in Fox Television Stations. The entire structure of the FCC's policymaking on indecency and, indeed, the philosophy behind the regulation of broadcasting may be at issue. Attorney Robert Corn-Revere, for example, predicted that the Fox decision was "more like an intermission between acts" than "the end of the story." (49) He wrote that a "more momentous judicial review of the FCC's ban on broadcast indecency is yet to come." (50)

   When the Court considers Fox Television Stations, it could parse definitions of words or delve into the changing role of the broadcast media in an increasingly technological world. A simpler solution, however, may lie in a case that only Justice Ruth Bader Ginsburg cited in Fox Television Stations. Cohen v. California is the only case in the Court's history that turned exclusively on the Court's examination of the f-word. (51) It is remarkable that Justice Scalia ignored the case, though he may have done so because it was not related to broadcasting. Justice Ginsburg recognized the relevance of Cohen, however. She quoted language that could well hold the key to the resolution of the indecency issue, (52) particularly in light of Justice Thomas's biting critique in Fox Television Stations of the regulatory scheme governing the broadcast media--rules that he says were poorly conceived and are irrelevant in today's media environment. (53)

   In Cohen, Justice John Marshall Harlan recognized that language has two elements--cognitive and emotive--and wrote that the emotive element deserves as much protection as the cognitive. (54) Unfortunately, no other justice or Court has fully recognized the import of Justice Harlan's proposal, and it has withered since its enunciation in 1971. Its revival could very well provide a solution to the issues dividing Justices Scalia and Stevens and establish a reasonable framework for confronting indecent speech.

2. FEDERAL COMMUNICATIONS COMMISSION V. FOX TELEVISION STATIONS, INC.

   Federal Communications Commission v. Fox Television Stations, Inc. grew from the broadcasts of the 2002 and 2003 Billboard Music Awards on the Fox Television network, (55) though the FCC's response to the broadcasts did not occur until 2006. (56) The FCC had, in fact, altered its policy on broadcast indecency in 2004, based on a broadcast that occurred in 2003. (57) The FCC did not impose sanctions for the 2003 broadcast, (58) however, so a challenge to the policy change did not occur until the complaint by Fox. That serpentine intermingling of...