Fairman critiques FCC v. FOX case today at Supreme Court over “fleeting expletives,” aka the “F-word”

Prof. Chris Fairman, “The FCC, the F-Word, and Fox’s Fuck-Up” 

I heard “F-word,” “S-word,” “dung,” and even a “Gollywaddles” (courtesy of Justice Scalia), but the two words I was waiting to hear—fuck and shit—weren’t uttered by counsel or the Court this morning in oral argument in FCC v. Fox Television Stations.  What is even more amazing is that this case was about the words fuck and shit.  More specifically, can the FCC punish broadcasters for the isolated or “fleeting” use of these two expletives?  If oral argument is any indication, the networks better plan on keeping a bar of soap around for every future live broadcast.

Back in 2002 at the Billboard Music Awards, Cher said “fuck ‘em” in her acceptance speech.  The next year on the same awards show, Nicole Richie explained that it wasn’t so “fucking simple” to get “cow shit out of a Prada purse.”  Finally in 2006, the FCC orders that both broadcasts violated its policy on indecent language.  The only problem is that in order to find these isolated, fleeting uses of fuck and shit actionable, the FCC had to change its own policy.  The agency overturned its own precedent and declared all uses of the word fuck as inherently sexual and therefore within the scope of the indecency definition.  Then it overruled all prior decisions to the contrary and found the fleeting and isolated use was irrelevant. 

Fox successfully challenged the FCC’s new policy in the Second Circuit where a split panel found the FCC’s policy shift was arbitrary and capricious in violation of the Administrative Procedures Act.  And in some detailed dicta, the majority noted that it’s probably unconstitutional to boot.  In the Second Circuit oral argument, Fox Television’s advocate, Carter Phillips, freely used the words fuck and shit.  So did the judges.  The odd man out was the FCC lawyer; he used the euphemisms “F-word” and “S-word.”  This pussyfooting around by the FCC was downright Victorian.

When the Supreme Court granted the FCC’s cert petition, I was expecting a real showdown between the prudish FCC and the worldly Fox.  This time, however, the FCC captured the discourse.  The newly appointed Solicitor General Gregory Garre argued for the FCC—nothing but euphemisms.  (Garre did manage a few laugh lines though like the specter of “Big Bird dropping the F-Bomb.”)  Carter Phillips again argued for Fox.  But where were the four-letter words?  Nothing but “F-word” and “S-word.”  It was if Fox conceded that these were bad words—too coarse to utter in the Supreme Court.  None of the Justices were going to take the lead either.  The closest thing we got to a four-letter word was Justice Stevens’ use of “dung.”

Without the dirty words, what had the potential to be a landmark First Amendment case ends up being a vanilla Administrative Procedures Act agency review.  And as General Garre pointed out, the Court has never overruled an agency under the arbitrary and capricious standard where they have articulated some reason for its policy.  Justice Ginsberg seemed sympathetic to reaching the constitutional questions given the tip of the hand by the Second Circuit, but no on else seemed to bite on that.  There was no argument directed to merits of the constitutional claims.  This will be decided as an administrative law case.  Too bad.

As an APA agency review case, it doesn’t look good for Fox.  Chief Justice Roberts and Justice Scalia both seemed to believe the FCC offered an explanation for the policy shift.  Though Justice Thomas was silent at argument, he’s a likely “me-too” for reversal. (To be accurate, Thomas wasn’t silent; he had an on-going side bar conversation going on with Justice Breyer.  I wonder what they were talking about? Swapping dirty jokes?) So that looks like three for the FCC.

Justice Ginsberg is a likely vote for affirming the Second Circuit.  Since Pacifica and the First Amendment are avoided, Justice Stevens is free to join without having to revisit his concurrence in the case that created indecency regulation in the first place.  Justice Souter is a possible third vote for affirming.  His questions on what the FCC did to determine that a policy shift was needed on fleeting expletives highlighted the absence of studies or research.  While he also solicited (and received) a concession from Phillips that FCC articulation of increased complaints could justify a policy change, the question itself illustrates the concern: the FCC didn’t use this as a justification in announcing the policy shift.  So that’s a soft three for Fox.

Who’s up for grabs?  Justice Breyer has traditionally taken a deferential attitude toward agency policy making.  His questions about the practical side of tape delays and V-chips don’t offer much to show his leaning.  Justice Kennedy interjected a couple of queries but nothing revelational.  Justice Alito was sphinx-like. 

I think it’s likely that the Court will reverse the Second Circuit on its arbitrary and capricious holding under the APA and remand.  The FCC would then have a chance to squarely address the constitutional issues.  And the Second Circuit will get to rule.  And we’ll all be back in front of the Court in term or two with the real question: how is it constitutional for five unelected FCC Commissioners to impose a content based restriction on speech that is unquestionably protected by the First Amendment. 

Or maybe not.   New appointments to the FCC could temper the agency’s aggressiveness.  And if it’s okay for the agency to flip-flop on fleeting expletives, they can certainly flip back. 

Christopher M. Fairman

November 4, 2008

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