Federal Communications Law Journal

Document Type


Publication Date


Publication Citation

63 Federal Communications Law Journal 261 (2010)


After the broadcast of the 2003 Golden Globe Awards, during which the lead singer from U2 uttered an expletive on national television, the FCC revisited its prior policy on the use of expletives on the airwaves and declared, for the first time, that "fleeting expletives" are offensive according to community standards and are therefore finable. In a lawsuit filed in the Second Circuit Court of Appeals, Fox Television Stations, Inc. along with a number of other broadcasters argued that the FCC's new policy was arbitrary and capricious under the Administrative Procedure Act and unconstitutional under the First Amendment. The Second Circuit agreed that the policy was arbitrary and capricious. The U.S. Supreme Court reversed, holding that the FCC's new policy did not violate the Administrative Procedure Act, but did not address the First Amendment issue. This Note begins by arguing that the First Amendment issue will eventually resurface before the Court, at which point the Court will have to finally resolve the question whether the FCC's new policy violates the First Amendment. This Note then attempts to predict how the Court will come out on the First Amendment question by analyzing various models of judicial decision making and applying them to the facts of the case. Based on a contention that the attitudinal model dominates judicial decision making, this Note concludes that the outcome will ultimately depend on who occupies the seats on the bench. This Note then evaluates the attitudes of the current justices, including Sonia Sotomayor and Elena Kagan, and attempts to draw inferences based on their prior judicial records, as well as other signs of their attitudes and ideologies. Finally, this Note concludes that a future challenge to the FCC's new policy on First Amendment grounds will be resolved in favor of the broadcasters and will pave the way for a new era in broadcast regulation.