Caseflicks

Supreme Court of the United States • 2009

Federal Communications Commission v. Fox Television Stations, Inc.

556 U.S. 502 | 129 S. Ct. 1800 | 173 L. Ed. 2d 738 | 2009 U.S. LEXIS 3297 | 77 U.S.L.W. 4337

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Takeaway

In short, this case holds that an agency may reverse policy under ordinary APA review if it acknowledges the change and gives rational reasons, but it leaves the constitutionality of the FCC's fleeting-expletive regime unresolved.

Background

Federal law prohibits the broadcast of obscene, indecent, or profane language. For many years, the FCC generally treated a single, fleeting nonliteral expletive as insufficient for an indecency finding, while evaluating explicit descriptions of sexual or excretory activity under a context-sensitive test.

In 2004, however, the FCC changed course in its Golden Globes Order. It concluded that even a single nonliteral use of the F-word could be actionably indecent if, in context, it was patently offensive. The FCC reasoned that the word's force derives from its sexual meaning, that a categorical exemption for isolated expletives would encourage their use, and that broadcasters could more easily use delay technology to bleep live programming.

The case involved two Fox broadcasts before that order: Cher said “f*** ’em” during the 2002 Billboard Music Awards, and Nicole Richie used both the F-word and a reference to animal excrement during the 2003 awards. On remand after public comments, the FCC found both broadcasts indecent but imposed no fines or other sanctions because the broadcasts predated the agency's clarified policy.

The Second Circuit vacated the FCC's order under the Administrative Procedure Act. It held that the FCC had inadequately explained its departure from the prior policy toward fleeting expletives, though it declined to decide the broadcasters' First Amendment challenge. The Supreme Court granted review.

Issues

Issue #1

Whether the APA requires heightened judicial scrutiny or a more substantial justification whenever an agency changes an existing policy.

Holding

No. An agency changing policy must acknowledge the change and provide good reasons for its new policy, but it need not prove that its new reasons are better than the reasons supporting the old policy.

Reasoning

The APA directs courts to set aside agency action that is arbitrary or capricious, but it does not prescribe a distinct, heightened standard for policy reversals. Under ordinary arbitrary-and-capricious review, a court asks whether the agency examined relevant information and gave a satisfactory explanation; it may not substitute its own policy judgment for the agency's.

An agency ordinarily must show awareness that it is changing course. It cannot silently abandon an existing rule or disregard facts, findings, or reliance interests that supported the earlier policy. Where a new policy contradicts prior factual findings or disrupts serious reliance interests, a fuller explanation may be necessary because those matters are relevant to reasoned decisionmaking.

But a conscious policy change does not itself require the agency to persuade a court that the new policy is objectively superior. It is enough that the policy is lawful under the statute, rests on good reasons, and is one the agency reasonably believes is preferable. Constitutional objections remain separate questions of legality, not grounds for applying a stricter version of ordinary APA review.

Issue #2

Whether the FCC acted arbitrarily or capriciously by abandoning its categorical protection for isolated expletives and finding the Fox broadcasts actionably indecent.

Holding

No. The FCC adequately acknowledged and explained its policy change, and its contextual treatment of fleeting expletives was rational under the APA.

Reasoning

The FCC expressly recognized that it was breaking with prior staff decisions and Commission dicta that had treated isolated expletives as nonactionable. It disavowed those earlier statements, declared them no longer good law, and declined to impose sanctions for the pre-change Fox broadcasts. That combination showed both awareness of the change and concern about fair notice.

The FCC reasonably concluded that it need not distinguish sharply between literal sexual or excretory descriptions and expletive uses of the same words. In the agency's view, the F-word's ability to shock or offend derives from its sexual meaning, and even a single use may be patently offensive when evaluated in its full broadcast context.

The agency also rationally predicted that a blanket safe harbor for isolated expletives would increase their use. It could reasonably consider technological developments that made it easier to bleep live programming, as well as the interest in protecting children from the initial exposure—or “first blow”—of indecent language.

The Second Circuit improperly demanded empirical proof that fleeting expletives harm children. The Court held that the FCC could rely on the commonsense proposition that children imitate behavior presented as normal or appropriate; requiring controlled studies of children's exposure to indecent broadcasts would effectively make enforcement impossible.

The FCC's context-based approach was not internally irrational merely because it did not ban every use of every offensive word. Pacifica itself approved an approach in which context matters. The agency could take account of a program's setting, audience, repeated or gratuitous use of offensive language, and whether a broadcast was likely to attract children.

Applying that approach, the FCC could regard the awards-show remarks as deliberate, vulgar, and gratuitous statements aired during prime-time programs expected to draw large audiences, including millions of children. The Court therefore reversed the Second Circuit's APA ruling.

Issue #3

Whether the Supreme Court should decide whether the FCC's indecency orders violated the First Amendment.

Holding

No. The Court declined to reach the constitutional question because the Second Circuit had not decided it.

Reasoning

The Supreme Court is principally a court of final review rather than first view. Because the Second Circuit resolved the case on APA grounds and expressly reserved the constitutional issues, the Court found no sufficient reason to decide the First Amendment challenge before the lower court had addressed it.

The Court acknowledged that the FCC's orders might cause broadcasters to avoid language beyond the agency's constitutional authority. But it concluded that any resulting chilling effect and the ultimate validity of the FCC's indecency regime could be considered in later proceedings, potentially in the same case after remand.

Concurrences

Justice Thomas

Reasoning

Justice Thomas joined the Court's APA analysis but wrote to question the constitutional foundations of the FCC's authority over broadcast indecency. He argued that Red Lion Broadcasting Co. v. FCC and FCC v. Pacifica Foundation created a weak and textually unsupported distinction between broadcast media and other speakers under the First Amendment.

In his view, the spectrum-scarcity and broadcast-pervasiveness rationales underlying those precedents have been eroded by technological change. The growth of broadcast outlets, digital transmission, cable and satellite services, and Internet access makes traditional broadcasting neither uniquely scarce nor uniquely pervasive.

Thomas therefore stated that, in an appropriate case, he would be open to reconsidering Red Lion and Pacifica. The First Amendment's text does not itself assign lesser protection to broadcasters, and the factual premises used to justify that lesser protection may no longer hold.

Justice Kennedy

Reasoning

Justice Kennedy joined the Court except for Part III-E and agreed that the FCC's explanation was sufficient here. He emphasized, however, that whether an agency has adequately explained a policy reversal depends on the circumstances rather than on a categorical rule either demanding or rejecting more detailed justification.

When a new policy contradicts factual findings supporting an earlier policy, an agency must confront those earlier findings. Likewise, reliance interests and new developments in science, technology, or experience may affect how much explanation reasoned decisionmaking requires.

Kennedy read State Farm as requiring an agency to explain why it rejects prior factual determinations when those determinations matter to the new decision. Here, however, the FCC's earlier fleeting-expletive policy rested principally on its reading of Pacifica rather than on factual findings; the FCC's stated reasons, though not exemplary in detail, were sufficient under the APA.

Dissents

Justice Stevens

Reasoning

Justice Stevens joined Justice Breyer's dissent but added that the FCC's status as an independent agency supported demanding a genuine explanation for a major regulatory shift. In his view, the FCC exercises delegated legislative authority and is insulated from direct presidential control, so stability, statutory limits, and the rule of law weigh against allowing abrupt change based on administrative preference alone.

Stevens also argued that the FCC had misconstrued Pacifica and the statutory term “indecent.” Pacifica upheld an order involving a lengthy, repetitive monologue of explicit language; it did not hold that every word with sexual or excretory origins is indecent whenever used as an expletive.

A word used to express frustration or contempt does not necessarily describe sex or excretion. By collapsing the distinction between literal descriptions and nonliteral expletives, the FCC adopted an expansive interpretation that departed from Pacifica without adequately recognizing or justifying that departure.

Justice Ginsburg

Reasoning

Justice Ginsburg joined Justice Breyer's APA analysis and stressed the First Amendment concerns shadowing the case. Pacifica was a narrow and closely divided decision concerning George Carlin's deliberately repetitive monologue, not spontaneous, isolated remarks during live television broadcasts.

The FCC's new policy reached words used for emotive or intensifying force rather than to describe sexual or excretory activity. Those uses may be inseparable from a speaker's expressive message, and regulating them risks suppressing language that is commonplace in many communities.

In Ginsburg's view, the constitutional question should be approached with special caution if it returned to the Court. The fact that language is offensive to some listeners does not remove it from First Amendment concern.

Justice Breyer

Reasoning

Justice Breyer, joined by Justices Stevens, Souter, and Ginsburg, concluded that the FCC's reversal was arbitrary and capricious. Agencies have substantial policymaking latitude, but they must make major decisions through reasoned explanation rather than political preference or unexplained judgment. When an agency changes a longstanding rule, it must meaningfully answer the question: why change now?

The FCC's original policy had been shaped by its understanding that Pacifica imposed a constitutional limit on punishment for isolated expletives. Yet, when it abandoned that policy, the FCC said almost nothing about why it no longer viewed the First Amendment or Pacifica as requiring restraint. Because that constitutional concern directly underlay the old policy, Breyer considered the agency's silence a failure to address an important aspect of the problem.

Breyer also faulted the FCC for failing to consider the practical effect on small local broadcasters. Such stations may lack costly delay equipment and may respond to the risk of large penalties by reducing live coverage of city meetings, sporting events, parades, and other local affairs. The FCC's general statement that it might consider circumstances case by case did not adequately address this potential chilling effect on local programming.

The FCC's stated reasons did not fill those gaps. The words' coarseness, the concern about a child's “first blow,” and the theoretical possibility that broadcasters could air expletives one at a time were all matters the FCC knew when it adopted its earlier policy. Technological improvements in bleeping equipment did not justify the shift without considering broadcasters unable to afford that technology.

Breyer would have affirmed the Second Circuit and remanded to the FCC for a fuller explanation. He also would have used constitutional avoidance to require the agency to reconsider its policy in light of serious First Amendment concerns, without itself deciding the constitutional question.