"Fleeting expletives" are the tip of the iceberg: fallout from exposing the arbitrary and capricious nature of indecency regulation.

• Author: Hutchinson, Dave E.

1. INTRODUCTION II. OVERVIEW III. FINDING INDECENT SPEECH IV. JUDICIAL REVIEW OF ARBITRARY AND CAPRICIOUS ADMINISTRATIVE AGENCY ACTIONS A. Development of the Judicial Gloss on Arbitrary and Capricious Review B. The State Farm Hard Look Standard C. The Scope of Arbitrary and Capricious Review Is Confused By Many Because It May Take Several Shapes V. FOX v. FCC: ARGUMENTS FOR AND AGAINST AN ARBITRARY AND CAPRICIOUS INDECENCY DETERMINATION 2 A. The FCC's Reasons for Moving To Regulate Fleeting Expletives B. Case Studies and the Second Circuit's Rejection of the FCC Rationales 1. Issues with Demonstrative Indecency: Literal and Non-literal Uses 2. From the Golden Globes to the Supreme Court C. The FCC's Appeal Hinges on Reasonableness, Not a Hard Look VI. CONCLUSION: THE FUTURE OF A POLICY AT RISK I. INTRODUCTION

   Challenging the regulation of indecent speech makes for a sexy First Amendment ease. Concerns with chilling or censoring speech draw immediate attention, overshadowing the issue of how the Federal Communications Commission (FCC) exercises its discretion when it finds certain language "indecent." In 1978, the Supreme Court in FCC v. Pacifica Foundation, Inc. held that the FCC's regulation of indecent speech did not violate the First Amendment. (1) Having the constitutional authority to regulate indecent speech, however, is distinct from identifying which actions are appropriate in the exercise of that authority. Until recently, too little attention has been given to the latter query: whether the FCC's indecency regulation is arbitrary and capricious.

   Regulating indecent speech requires sensitivity and discretion in evaluating the contemporary offensiveness of language; concepts of offensiveness change over time. The FCC's authority to regulate indecent speech primarily originates in 18 U.S.C. [section] 1464. (2) The FCC defines indecent speech under [section] 1464 as "material that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium." (3) This standard explicitly recognizes a focal point in the history of profanity and foul language (including indecent speech) by Geoffrey Hughes, a professor of the history of the English language. (4) Hughes identifies the weakening or loss of intensity of the force and impact of swear words over time as the dominant trend in the history of swearing. (5) A corollary to weakening is the shift in meaning from one that is sexually-charged and/or offensive to one that reflects general use. For example, about three decades after the emergence of the term "jerk" as a verb meaning "to masturbate" in the late nineteenth century, it developed into a common noun meaning "an offensive or worthless person." (6) The linguistic development of "jerk" demonstrates that over a relatively short period of time, the sexual activity described by a term can dissipate into a widely-used term with no inherent coarse, sexual meaning.

   The Supreme Court's review of the Second Circuit's decision in Fox v. FCC (7) presents an important issue addressing the administrative discretion exercised in the indecency regime. In 2004, the FCC announced the "fleeting expletives" policy--that the isolated use of an offensive expletive could be actionable. (8) After Fox Television Stations, Inc., CBS Broadcasting, Inc., and NBC Universal, Inc. (collectively, the Networks) challenged the fleeting expletives policy, the Second Circuit held the policy change invalid as an arbitrary and capricious abuse of agency discretion. (9) In the wake of the Supreme Court grant of certiorari in Fox v. FCC, the Third Circuit, in CBS v. FCC, found arbitrary and capricious the "fleeting images" policy the FCC articulated to sanction the February 1, 2004 exposure of Janet Jackson's breast during the Super Bowl. (10)

   An undercurrent in the Second and Third Circuit cases is that the FCC's freewheeling indecency regulation fails scrutiny under the Administrative Procedure Act (APA), 5 U.S.C. [section] 706. (11) The abuse of discretion found by the Second and Third Circuit Courts of Appeals is ostensibly limited to the policy changes involving fleeting expletives and fleeting images. The FCC's implementation of those policies, however, appears to fall prey to the same factors that support the arbitrary and capricious finding in Fox v. FCC. In other words, Fox v. FCC and CBS v. FCC begin to suggest that neither the recent indecency policies nor the findings may survive APA review. In that light, the administrative law question the Court faces regarding fleeting expletives represents the tip of the iceberg: upholding the court of appeals' decision in Fox v. FCC would have the effect of bringing the entire indecency regime under fire, while reversing the court of appeals bolsters the FCC's ability to restrict speech in broadcasting and also would cause greater unpredictability in speech regulation.

   This Note thus examines the FCC's indecency regime through the lens of the scope of judicial review for arbitrary and capricious administrative actions. Part II provides a brief overview of the issue presented to the Supreme Court by the Second Circuit's recent decision in Fox v. FCC. Part III looks at the standard applied by the FCC to determine if certain language is indecent. Part IV examines the standard for judicial review in finding whether or not an administrative action is arbitrary and capricious. Part V compares the arguments raised by Fox v. FCC for and against finding the FCC's indecency regime arbitrary and capricious. Finally, Part VI suggests that the optimal conclusion is to uphold the court of appeals' decision, and proposes an alternative indecency policy that scales back discretion and incorporates a factual foundation to ease administration and to provide clearer guidance to broadcasters.

2. OVERVIEW

   For many years after Pacifica was decided, the FCC consistently did not find isolated, non-literal expletives actionably indecent. (12) That changed in 2004, when the FCC abandoned that position and adopted the standard that certain "fleeting expletives"--the broadcast of an isolated expletive which is not repeated--are indecent under [section] 1464.13 In regulating fleeting expletives, the FCC determined that certain words, namely "fuck" and "shit," cannot be divorced from their sexual or excretory meanings, and may be regulated even in isolated use. (14) In June 2007, the Second Circuit's decision in Fox v. FCC invalidated the FCC's fleeting expletives standard, holding that it is arbitrary and capricious under the APA. (15)

   Judge Leval's dissent in the court of appeals shrewdly noted that, "if ... the Commission's actions are arbitrary and capricious because of irrationality in its standards for determining when expletives are permitted and when forbidden, that argument must be directed against the entire censorship structure." (16) Determining whether or not language is "patently offensive" by "contemporary community standards" is the essence of indecency regulation. (17) In finding the fleeting expletives standard arbitrary and capricious, the Second Circuit did not reach the Networks' challenge that the FCC's "community standards" analysis is also arbitrary. (18) Since FCC v. Pacifica, in 1978, which represented the first instance where the Supreme Court upheld the FCC's regulation of indecent content in the broadcast medium, (19) the FCC has looked to Pacifica as support for finding certain words patently offensive. (20) Thus, despite the recognition that standards of indecency change over time, the FCC's indecency analysis gives short shrift to the problem of evaluating what language meets that standard now, compared to when Pacifica was decided 30 years ago.

   In November 2007, the Solicitor General filed a petition for a writ of certiorari (Petition) to the Supreme Court on the FCC's behalf, asking the Court to review the Second Circuit's decision in Fox v. FCC. (21) The Petition criticizes the court of appeals for placing the FCC in a position in which it will have difficulty regulating isolated expletives based on the contextual analysis, which will leave it ill-equipped to prevent "coarsening of the airwaves." (22) However, this position begs the question by assuming that the FCC will be unable to regulate indecent language. The real issue is whether certain words are indecent, not based on context, but based on serious consideration of contemporary community standards.

   The question presented to the Supreme Court in Fox v. FCC requires a hard look at the "fleeting expletives" standard, but the standard of review for abuse of discretion has clear implications for the entire FCC indecency regime. (23) At the outset, it should be noted that the FCC's rationale for its policy on fleeting expletives echoes its rationale for regulating indecency, as articulated in Pacifica. (24) Indeed, the Solicitor General likely conflates the two for two reasons: to prompt the Court to adhere to the Pacifica holding and to acknowledge that the decision implicates the entire indecency regime. (25) The FCC's Supreme Court brief highlights the reasoned basis the APA requires for an administrative agency's actions, as articulated by the Supreme Court's decision in Motor Vehicle Manufacturers Ass 'n of the United States v. State Farm Mutual Automobile Insurance Co. (26) In its brief, however, the FCC misconstrues the judicial gloss on arbitrary and capricious review--likening it more to a rational basis review than to the hard look State Farm established. (27) The Court may utilize a variety of factors in a State Farm review to support or negate a reasoned basis for administrative action during judicial review for arbitrary and capricious actions. (28) How the Court applies those factors, and the kind of deference it gives to the FCC, may determine not only the legitimacy of the fleeting expletives policy...