CONSTITUTIONAL LAW
1st Amendment Issue
FCC RUN AMUCK: Fines for Fleeting Unscripted Expletives on Broadcast Television Upheld by High Court

An Analysis of the U.S. Supreme Court's Decision in FCC v. Fox Television Stations, Inc.

by
Dennis W. Chiu, Esq.
Owner, ProdigyLaw.com

The United State Supreme Court upheld fines for fleeting expletives against Fox television in a 5-4 decision in April 2009. This is one more diminution of the First Amendment's protections of freedom of speech.

THE CASE & U.S. SUPREME COURT DECISION

In FCC v. Fox Television Stations, Inc. (decided April 28, 2009), the U.S. Supreme Court upheld fines handed down by the Federal Communications Commission (FCC) in a case involving isolated utterances of the F-word (Fuck) and S-words (Shit), during two live broadcasts aired by Fox Television. In its order upholding the indecency findings, the FCC stated that its Golden Globes policy eliminated doubt that fleeting expletives could be actionable, and declared that under the new policy, a lack of repetition is evidence against a indecency finding, but is not a complete defense. The FCC held that both Fox broadcasts met the new test, because one involved a literal description of excrement and both utilized the F-Word.

    The Court based its decision on the following rationale:

"1. The FCC’s orders are neither “arbitrary” nor “capricious” within the meaning of the APA, 5 U. S. C. §706(2)(A).  Pp. 9–19.

… An agency must “examine the relevant data and articulate a satisfactory explanation for its action.” [citation omitted] In overturning the FCC’s judgment, the Second Circuit relied in part on its precedent interpreting the APA and State Farm to require a more substantial explanation 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 [citation omitted] and may sometimes need to account for prior fact-finding 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 permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change adequately indicates.  Pp. 9–12.  

… 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. 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.  Pp. 13–15.

(c) None of the Second Circuit’s grounds for finding the FCC’s action arbitrary and capricious is valid.  First, the FCC did not need empirical evidence proving that fleeting expletives constitute harmful “first blows” to children; it suffices to know that children mimic behavior they observe.  Second, the court of appeals’ finding that fidelity to the FCC’s “first blow” theory would require a categorical ban on all broadcasts of expletives is not responsive to the actual policy under review since the FCC has always evaluated the patent offensiveness of words and statements in relation to the context in which they were broadcast.  The FCC’s decision to retain some discretion in less egregious cases does not invalidate its regulation of the broadcasts under review. Third, the FCC’s prediction that a per se exemption for fleeting expletives would lead to their increased use merits deference and makes entire sense.  Pp. 15–18.  

(d) Fox’s additional arguments are not tenable grounds for affirmance. Fox misconstrues the agency’s orders when it argues that the new policy is a presumption of indecency for certain words. It reads more into Pacifica than is there by arguing that the FCC failed adequately to explain how this regulation is consistent with that case.  And Fox’s argument that the FCC’s repeated appeal to “context” is a smokescreen for a standardless regime of unbridled discretion ignores the fact that the opinion in Pacifica endorsed a context-based approach. Pp. 18–19.

2. Absent a lower court opinion on the matter, this Court declines to address the FCC orders’ constitutionality.  P. 26."

(Summary of the holding prepared by the Clerk of the U.S. Supreme Court in its Syllabus preceding the full opinion of the Court.)

ANALYSIS

Granted Overly Broad Power to Federal Commissions to Curtail & Chill Free Speech

The opinion of the Court stands for the proposition that federal commissions may chill the free and fleeting broadcast of speech without explanation of how its decision is consistent with the U.S. Supreme Court cases on the issue. Each federal commission is staffed with constitutional law attorneys that are more than adequate to the task of applying the law under its quasi-judicial powers.

Most quasi-judicial commissions understand that the more general an opinion, the less grounds the subject of fines can appeal, because an appellate court cannot claim that the commission misapplied the law, if the application of the law is not sufficiently described. However, when dealing with Free Speech, as a public policy decision, do we want this quasi-judicial tactical trick to chill what all Americans may access on broadcast television?

The practical ability to appeal through full decisions on Free Speech issues, restrains appointed, non-elected, and non-judicial commissioners from acting in righteous indignation based on personal select values and morals, held by a minority or religious position. The majority of the Court failed to take into account in full measure the public policy implications and erred on the side of being less protective of speech than more protective speech.

Freedom of Speech is essential to the Bill of Rights and is arguably this nation's most cherished right. Monarchs and despots have curtailed speech throughout world history, and the Founding Fathers understood that bad speech should be cured with more and better speech, not fines or orders that chill an individual from utilizing the freedom to speak his or her mind.

Context Required: Definition of the F-Word Has Evolved In Society as Being Less Offensive in Certain Contexts, Not Requiring First Amendment Special Treatment.

The bias against words in speech based on righteous indignation is not true in all contexts. The F-Word has evolved as modern colloquial English, just as words can morph into different contexts in modern slang. For example, the word "bad" for a period of time, as used in Michael Jackson's song, meant amazing or awesome; "bad" became "good" in essence. In the late 1990s and early 2000s the word "phat" (pronounced as "fat") meant fantastic or great, not overweight in spoken English.

The Oxford American Dictionary, defines the F-Word as follows:

"fuck |f?k| vulgar slang
verb [ trans. ]
1 have sexual intercourse with (someone).
• [ intrans. ] (of two people) have sexual intercourse.
2 ruin or damage (something).

noun
an act of sexual intercourse.
• [with adj. ] a sexual partner.
exclamation
used alone or as a noun ( the fuck) or a verb in various phrases to express anger, annoyance, contempt, impatience, or surprise, or simply for emphasis.

PHRASES
go fuck yourself an exclamation expressing anger or contempt for, or rejection of, someone.
not give a fuck (about) used to emphasize indifference or contempt.

PHRASAL VERBS
fuck around spend time doing unimportant or trivial things. • have sexual intercourse with a variety of partners. • ( fuck around with) meddle with.
fuck off [usu. in imperative ] (of a person) go away.
fuck someone over treat someone in an unfair or humiliating way.
fuck someone up damage or confuse someone emotionally.
fuck something up (or fuck up) do something badly or ineptly."

As used in the above phrasal verbs, "to f-word around" is not generally considered offensive in used in a common middle-class economic social context. Additionally, to "f-word something up" is to lay blame upon oneself for ineptitude, which most people do not take as offensive to another person.

In celebration, to state something is "f-word-ing great" is usually considered a compliment. Without a requirement of context, banning the F-Word is tantamount to banning a moving target.

CONCLUSION

The English language is both tangible and mystical. It is less precise then many other languages. Due to English's fungible nature, the English language has proven to be mesmerizing and yes, sometimes vulgar. However, arguably less precision allows for greater freedom of interpretation and possibility for artistic expression.

By allowing the FCC to fine speech or single usage of words without proper analysis under prior free speech case law decisions chills the necessary right to appeal, errs towards stopping speech rather than protection of speech, and grants overly broad powers to a quasi-judicial body who are not part of the courts.

Commissions can only be trusted if grounded in law with the checks and balances of both administrative and judicial appeals. The U.S. Supreme Court majority greatly weakened the foundation of commissions, administrative law and the 1st Amendment's freedom of speech protections in their decision in FCC v. Fox Television Stations, Inc.

(Note: all page citations are to the original pagination in the opinion of the U.S. Supreme Court released to the public in FCC v. Fox Television Stations, Inc. (2009) 556 U.S. ___.)