Supreme Court Upholds FCC Appeal In 'Fleeting Expletives' Case
April 28, 2009 at 12:29 PM (PT)
The SUPREME COURT has upheld the FCC's "fleeting expletive" indecency policy and has remanded the case to a lower court for reconsideration, throwing out the Second Circuit Court of Appeals' ruling sending the case back to the FCC for a "reasoned analysis" justifying the policy. The FCC appealed the case, arising from FOX television's broadcast of two BILLBOARD MUSIC AWARDS shows, to the SUPREME COURT, resulting in TODAY's decision.
The SUPREME COURT's 5-4 decision does not explicitly approve the constitutionality of the policy, leaving the issue for the lower court to reconsider, but indicates that it considers the policy valid.
The majority, in a opinion written by Justice ANTONIN SCALIA, ruled that the FCC policy is "neither arbitrary nor capricious" because the Second Circuit improperly relied on a precedent in a previous case to "require a more substantial expla-nation for agency action that changes prior policy. There is, however, no basis in the Act or this Court’s opinions for a requirement that all agency change be subjected to more searching review. Although an agency must ordinarily display awareness that it is changing position ... and may sometimes need to account for prior factfinding or certain reliance interests created by a prior policy, it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one. It suffices that the new policy is permissibleunder the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change adequately indicates.
"First, the FCC forthrightly acknowledged that its recent actions have broken new ground, taking account of inconsistent prior FCC and staff actions, and explicitly disavowing them as no longer good law," continued SCALIA. "The agency’s reasons for expanding its enforcement activity, moreover, were entirely rational. Even when used as an expletive, the F-Word’s power to insult and offend derives from its sexual meaning. And the decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with PACIFICA's context-based approach. Because the FCC’s prior safe-harbor-for-single-words approach would likely lead to more widespread use, and in light of technological advances reducing the costs of bleeping offending words, it was rational for the agency to step away from its old regime. The FCC’s decision not to impose sanctions precludes any argument that it is arbitrarily punishing parties without notice of their actions’ potential consequences."
Thomas Questions Pacifica, Red Lion Precedents
While concurring, Justice CLARENCE THOMAS criticized the court's primary precedents for FCC content regulation, PACIFICA (indecency) and RED LION (the "fairness doctrine"), saying that the cases "were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity." THOMAS noted that the justifications for the cases, spectrum scarcity and "pervasiveness," are no longer applicable.
NAB Weighs In
Commenting on the Supreme Court ruling, NAB EVP/Media Relations DENNIS WHARTON issued the following statement:
"Regardless of today's opinion, broadcasters will continue to offer programming that is reflective of the diverse communities we serve. Nonetheless, we're disappointed the court majority seemingly failed to understand the need for clear and consistent regulatory policies, especially in light of the various ways audiences now receive broadcast programming. We continue to believe that voluntary self regulation -- coupled with blocking technologies like the V-chip -- is far preferable to government regulation of program content, and we question why speech restrictions should apply only to broadcasters."