Federal Communications Law Journal

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62 Federal Communications Law Journal 567 (2010)


This Article focuses on the Supreme Court's decision in FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800 (2009). In that case, the Supreme Court upheld an important change in the FCC indecency regulation. In the past, the FCC's policy had been that the broadcast of a single expletive did not violate FCC indecency policy. In order for such fleeting expletives to be actionable, the FCC required that they had to be repetitive and gratuitous. But in 2004, in response to the use of some expletives by entertainers during the Golden Globe Awards, the FCC changed its policy and ruled that a single expletive could be actionable.

The broadcasters affected by this change in policy petitioned the United States Court of Appeals for the Second Circuit for review of this change in policy on both constitutional and statutory grounds. 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 Procedure Act. Fox Television Stations, Inc. v. FCC, 489 F.3d 444 (2d Cir. 2007). Since the panel's holding was based on a violation of a federal statute, the panel declined to rule on the First Amendment arguments of the broadcasters. But Judge Pooler's opinion for the panel expressed sympathy for those arguments.

The Supreme Court, per Justice Scalia, reversed and remanded the Second Circuit decision. The Supreme Court ruled, five to four, that the FCC's change of policy had met the standard set by the Supreme Court in Motor Vehicle Manufacturers Association v. State Farm, 463 U.S. 29 (1983) for changes in administrative policy. Justice Scalia declined to pass on the First Amendment issues presented by the broadcasters although he observed that fleeting expletives were on the "periphery of First Amendment concern."

This Article analyzes Justice Scalia's majority opinion, the concurrences of Justices Kennedy and Thomas, and the dissents of Justice Stevens for the indications they provide for ascertaining the Supreme Court's position if the First Amendment validity of the FCC's new fleeting expletive policy does come before the Court. This Article contends that behind Fox Television Station's administrative law veil there is an intense First Amendment debate going on among the Justices concerning whether the FCC's new policy on fleeting expletives violates the First Amendment. The Article concludes that a majority of the Court probably would support the FCC's prior fleeting expletive policy which it describes as a sensible one. The Article also suggests the Court would probably uphold FCC indecency regulation in general despite its attendant vagueness and chilling effect infirmities. But he believes the First Amendment future of the FCC's new fleeting expletive policy is more problematic.