Supreme Court Upholds FCC’s Ability to Sanction a Single Expletive

By Drew Clark

April 28, 2009 – The Federal Communications Commission may proscribe the broadcast of a single expletive, the Supreme Court held on Tuesday, overturning an appellate court determination that such restrictions amounted to a change of policy.

In a 5-4 decision on Tuesday authored by Justice Antonin Scalia, the Supreme Court ruled narrowly, on the grounds of administrative law, that the FCC’s sanction against Fox Television Stations for the broadcast of those words on television shows involving the celebrities Cher and Nicole Richie, in the 2002 and 2003 Billboard Music Awards.

But in remanding the case, FCC v. Fox Television Stations, to the Second Circuit Court of Appeals with instructions to consider those constitutional issues, the case is almost certain to return to the Supreme Court for a full review of the issues.

Under administrative law, an action by an agency like the FCC may be set aside if it is “arbitrary or capricious.” Scalia said that was not here the case.

“If the Commission’s action here was not arbitrary or capricious in the ordinary sense, it satisfies the Administrative Procedure Act’s ‘arbitrary [or] capricious’ standard; its lawfulness under the Constitution is a separate question to be addressed in a constitutional challenge,” Scalia wrote.

In 1978, the Supreme Court permitted the FCC to sanction the broadcast of “indecent” material, including expletives with sexual reference, in FCC v. Pacific Foundation. That case concerned George Carlin’s “seven dirty words” – the satiric monologue about the seven words, as he put it, that “you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.”

A father who heard the monologue in his car – with his young son along for the ride – a  complained to the FCC, which sanctioned the Pacifica station that carried Carlin’s monologue.

The Pacifica decision, however, suggested that a policy against the “fleeting” use of a single expletive might run afoul of the First Amendment.

Hence the administrative law issue in the Fox case. The issue of whether the FCC had changed course arose because of a prior FCC ruling. The agency sanctioned NBC for broadcasting the singer Bono’s use of the phrase “fucking brilliant” in the 2003 Golden Globes award ceremony.

In its 2004 ruling against NBC, the FCC acknowledged that it had changed policy, to proscribe the use of a single curse word. Acknowledging the policy shift, the FCC did not impose a monetary fine on NBC.

The FCC subsequently sanctioned Fox – and also did not charge a fine – for the Cher and Richie comments.

The substance of the opinion was joined by Chief Justice John Roberts, and by Justices Samuel Alito, Anthony Kennedy and Clarence Thomas.

In a separate, concurring opinion, Thomas argued that rationale for affording broadcasters lesser First Amendment protections than those accorded to users of the internet or cable television should be reconsidered.

Such an exercise would revisit the holding of Red Lion Broadcasting v. Federal Communications Commission, the 1969 decision upholding the “Fairness Doctrine,” which required broadcasters to offer free time to individuals representing the opposing side of a controversial issue covered in a broadcast.

Although the Fairness Doctrine was repealed by the FCC in 1987, the legal rationale underpinning the doctrine remains in force, and could be reinstated by Congress, or by the FCC.