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Supreme Court Blushes at Those "S-words" and "F-words"

(November 4, 2008) - Anyone hoping to hear outrage from the Supreme Court over the Federal Communications Commission's freewheeling censorship of whatever it considers "indecent" in broadcasting would have been disappointed by the tenor of the oral argument before the Court today in FCC v. Fox Television, the "fleeting expletives" case.

True, Justice Ruth Bader Ginsburg did point out early in the argument that there seems to be "no rhyme or reason" to decisions by the Commission that, for example, the numerous vulgar words in the movie Saving Private Ryan are not indecent while the same expressions in Martin Scorsese's documentary The Blues are (and therefore any station that airs the film is subject to fines of $325,000). But the argument was dominated by Justice Antonin Scalia and Chief Justice John Roberts, both of whom clearly approved the FCC's decision in 2004 to change its longstanding policy on indecency and presumptively ban even one fleeting use of the "F-word" or "S-word" - the delicate euphemisms used throughout the argument - on the airwaves.

The other justices did not indicate their views on the issue at the heart of the case - whether the First Amendment permits a government agency to ban constitutionally protected expression under a vague and shifting standard called "indecency." Ever since the early 1970s, the FCC has defined indecency as any reference to sexual or excretory activities or organs that is "patently offensive" according to "contemporary community standards for the broadcast medium."

This constitutional issue, although critical to the case, is not technically before the Supreme Court. The decision that the Court is reviewing - from the U.S. Court of Appeals for the Second Circuit - only ruled that the FCC's new rule against fleeting expletives is "arbitrary and capricious," in violation of the federal Administrative Procedure Act (the APA). But, as Carter Phillips, the attorney for Fox Television, pointed out, courts must always interpret statutes like the APA in a manner that is consistent with the First Amendment.

All this began back in 2003 when the rock star Bono exclaimed "fucking brilliant!" at a televised Golden Globes Award broadcast. Although initially deciding that this single utterance of one of the "seven dirty words" was not indecent because it did not refer to a sexual activity or organ, the FCC changed its mind in the wake of the brouhaha surrounding Janet Jackson's "wardrobe malfunction" at the 2004 Super Bowl. Now, the agency said that even one use of "fuck" or "shit" or any of their variants would satisfy the first "prong" of its indecency test: whether the language refers to sexual or excretory activities or organs; and it would almost always satisfy the second prong as well: whether the expression, "in context," is patently offensive.

The FCC applied its new rule in a 2006 "Omnibus Order" that found indecent the word "bullshitter," uttered by a guest on The Early Show; Detective Sipowitz's use of the term "bullshit" on NYPD Blue - though not his use of the word "dickhead"; the actress Cher's comment "fuck 'em" at the 2002 Billboard Music Awards (referring to people who thought her career was over), and a comment by Nicole Richie during the same program the following year: "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

Fox and the other networks filed a challenge to these four rulings at the Court of Appeals for the Second Circuit. The FCC then requested a "remand" so that it could reconsider, and in its "Remand Order," it changed its mind about The Early Show (because it could be considered a news broadcast) and about NYPD Blue (for the technical reason that the person who complained about the show didn't live in the station's listening area). This meant that technically only the two Billboard Award programs were still at issue. But they were based on the new "fleeting expletives" rule, and the Second Circuit found that rule to be "arbitrary and capricious" because the FCC gave no reasoned rationale for its change in policy.

Courts generally don't reach constitutional issues when they can decide a case on "statutory" grounds (here, the APA). But the Second Circuit did go on, in "dicta" (statements not necessary to the result in the case) to indicate that it doubted the FCC could justify its anti-indecency rules because the entire censorship scheme is likely unconstitutional: its standards are too shifting and discretionary. In addition, the rationale given by the Supreme Court for allowing FCC censorship, in the 1978 case of FCC v. Pacifica, was that broadcasting is "uniquely pervasive" and "uniquely accessible to children." The Second Circuit said that rationale no longer applies to a media environment that includes cable, satellite, and the Internet.

It was largely this "dicta" that the FCC referenced in its petition asking the Supreme Court to review the case. The FCC argued that it could no longer do the job the Supreme Court had approved in Pacifica, since the Court of Appeals had basically said that the indecency regime was unconstitutional.

But once the Supreme Court accepted the case, the FCC turned around and argued that only a narrow "statutory" issue was before the Court: it should not consider the constitutionality of the indecency regime or even of the fleeting expletives rule, nor should it revisit the Pacifica case.

Although Justices Roberts and Scalia dominated the November 4 argument, Justices David Souter and John Paul Stevens joined Justice Ginsburg in expressing skepticism about the fleeting expletives rule. Justice Stevens, the author of Pacifica 30 years ago, asked Acting Solicitor General Gregory Garre, who argued for the FCC, if the Commission takes into consideration whether the use of an expletive is funny. Garre repeated the FCC's frequent litany about "context": the agency takes everything into account - audience, time of time, whether the language was gratuitous or pandering. Scalia then quipped: "So a bawdy joke is okay if it's really good?"

This led to a colloquy about what language, if any, would be more "shocking" to children. Garre asserted that the Cher and Richie comments were indecent because there is more harm to children when a celebrity says these words. Chief Justice Roberts agreed: according to him, this is very different from a soldier shouting expletives in Saving Private Ryan "when your head is being blown off." Carter Phillips, arguing for Fox, seemed astounded, replying: "It can't be that the FCC can determine that a child has a different reaction in the two situations." And in response to a hypothetical in which Roberts seemed to think that a football player yelling expletives would be okay under the FCC's "contextual" analysis, Phillips pointed out that football players are celebrities too.

Stevens, in contrast to Roberts, seemed to suggest that "community standards" had changed since the days of Pacifica. He asked Carter Phillips whether today the community is "more offended by or more tolerant of these words." Of course, Phillips said the community is more tolerant. Scalia jumped on him: "Think your clients have had anything to do with that?" Phillips, unflustered, said "probably very little"; but Scalia vehemently disagreed.

Neither Phillips nor any of the justices, however, mentioned that both President Bush and Vice President Cheney have been recorded using colorful language - Bush remarking to British Prime Minister Blair that the UN should “get Syria to get Hezbollah to stop doing this shit,” and Cheney telling Senator Patrick Leahy to “fuck yourself.”

Justice Stevens wondered whether the much-reduced First Amendment protection that Garre was urging for broadcast radio and television was based on a "scarcity" rationale - the notion that the airwaves are a scarce resource and therefore can be regulated more heavily than other media. Garre replied that Pacifica did not rely on scarcity but on the perceived invasiveness of broadcasting. Most people still get their news and entertainment from broadcast, not cable or the Internet, he said, and the government still has the same interest in assuring that they are not "bombarded with indecent language at 8 pm on this medium."

In fact, Garre said, in urging the Court to avoid the First Amendment issue, "it would be a remarkable thing for the Court to say that network television can use the F-word 24 hours a day," including "Big Bird dropping the F bomb on Sesame Street." The courtroom broke into polite laughter. (The FCC's ban on indecency only applies to broadcasts from 6 am - 10 pm.)

Justice Breyer had practical concerns about the fleeting expletives rule. He asked Garre: "What are the networks supposed to do about covering live events," where "a cross section of humanity" is present? - adding: "In my experience, some segment of that cross section swears." There followed a discussion of five-second tape delays - now regularly initiated by networks to enable them to cut or bleep even one fleeting expletive.

But Garre said the FCC was not requiring a delay in breaking news coverage; and returned to the old refrain that the agency's indecency rulings all depend on "context." This is, however, the very factor that makes them so subjective and unpredictable.

In an effort to bring immediacy to an argument that otherwise tended to be abstract and technical, Phillips urged the justices to read the many amicus curiae briefs, which detail the chilling effects of the FCC's new rule. He mentioned a Vermont TV station that declined to air a political debate because one candidate was known to swear occasionally.

Only Justice Ginsburg seemed in favor of addressing head-on the First Amendment problem with a government agency's shifting, subjective, often whimsical censorship decisions. "This whole argument has an air of futility," she told Garre. "The Second Circuit more than tipped its hand. Is there a way we can say this issue is before us now"; that we should not ignore "the elephant in the room"? Whether four other justices will agree with her remains to be seen, but Souter, Stevens, and Kennedy - the most likely votes for a free speech-friendly result - did not seem eager to reach the First Amendment question. Justices Samuel Alioto and Clarence Thomas said nothing at all.

The most likely outcome is a decision on the statutory issue only, either affirming or reversing the Second Circuit - that is, either deciding that the fleeting expletives rule was adequately justified or agreeing with the Second Circuit that it is "arbitrary and capricious," and sending the case back to the agency for further deliberation. The latter result is in a sense the least palatable, because then the indecency regime as a whole would remain in effect indefinitely, while the FCC reconsiders its fleeting expletives rule.

A reversal on the statutory issue would give the Second Circuit an opportunity to transform its "dicta" into a holding that either the fleeting expletives rule or the entire indecency regime violates the First Amendment. This would almost surely be followed by a Supreme Court showdown on the issue.

But there is another possibility. An Obama administration could decide that it no longer makes sense to devote federal government resources to the FCC's deliberations on whether American children need to be shielded from hearing an occasional "bullshit" or "fuck 'em" on network television.

Marjorie Heins

Update: On April 28, 2009, the Supreme Court reversed the Second Circuit on the statutory issue, but left the door open for a ruling that the FCC's current indecency regime violates the First Amendment. See "Supreme Court Clears the Way for Ending FCC Censorship of the Airwaves." In July 2010, the Second Circuit ruled that the FCC's indecency policy is unconstitutionally vague. See FCC's Censorship of "Indecency" is Unconstitutional.

On June 27, 2011, the Supreme Court granted the government's petition for review of the Court of Appeals ruling, as well as another Second Circuit decision that struck down an indecency finding against "NYPD Blue" for showing a few moments of female nudity.

On June 21, 2012, the Court vacated the FCC's orders on narrow due process grounds, without reaching the First Amendment issues. See The FCC and Indecency: The Supreme Court Decides Not to Decide.

For more background on the FCC, indecency, and the "fleeting expletives" case, see A Huge Victory for Free Speech on the Airwaves, FCC Faces Judicial Challenges to Its "Indecency" Regime and What is the Fuss About Janet Jackson's Breast? For the friend-of-the-court brief submitted to the Supreme Court by FEPP director Marjorie Heins on behalf of the ACLU, the Directors Guild, and ten other groups, click here.

The Free Expression Policy Project began in 2000 as a project of the National Coalition Against Censorship, to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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