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Weekly UpdatesC. The Scope of Arbitrary and Capricious Review Is Confused By Many Because It May Take Several Shapes
Before considering how the Supreme Court may apply the hard look doctrine in Fox v. FCC, an apparent confusion regarding the scope and standard of arbitrary and capricious review must be flagged. Discussing the standard of review in Fox v. FCC, the Second Circuit, (64) the Solicitor General, (65) and commentators (66) all suggest that the review looks for a "reasoned basis." While State Farm mentions the need for a reasoned basis for an agency's action, (67) however, focusing on that phrasing out of the full context of the opinion reads the scope of review too narrowly. The facts in State Farm, discussed above, demonstrate that the Secretary of Transportation rescinded Modified Standard 208 for practical and economic reasons, but the Court's examination of the factual underpinnings of the agency's action, in light of the statutory mandate, did not meet the reasoned analysis standard required to survive arbitrary and capricious review. (68) Interpreting the reasoned basis language in State Farm by its plain meaning, thus, misconstrues the arbitrary and capricious standard.
The Supreme Court's current hard look at the indecency regime--as a whole or limited to fleeting expletives--thus may take several shapes. Applying the approach from the Overton Park/State Farm line of cases, the Court may find the indecency determinations arbitrary and capricious for several reasons, either independently or taken together. In the absence of hard data for the FCC's determination of contemporary community standards, the general question for the Court since Overton Park is whether the FCC's cursory explanation of that determination is a consideration of relevant factors or a clear error of judgment. Under State Farm, it is possible for that to lead the Court to conclude that a lack of facts renders community standards decisions arbitrary and capricious because there are no facts found that can be rationally connected to the choice made. (69) Likewise, the absence of hard facts from the method of determining community standards may suffice for the Court to find the standard arbitrary and capricious due to clear error of judgment. (70) Overall, the lack of discrete facts makes it difficult to square the FCC's rather opaque method of determining contemporary community standards into the reasoned analysis required by State Farm, discussed above.
Alternatively, the Court may find that the indecency standard is not arbitrary and capricious under either the State Farm or the Baltimore Gas constructions of the hard look doctrine. In the simplest (and least helpful) decision, the Court, under State Farm, will not substitute its judgment for that of the agency. (71) The Court could punt on the issue by giving such bald deference to the FCC, but it does not provide clarity or guidance for indecency determinations. A less feeble decision would require the Court to uphold the indecency regime by chalking up the determinations as an acceptable product of agency expertise. The last point may be bolstered by the Baltimore Gas approach, applying greater deference to the agency. (72) Overall, though, an opinion deferring to the FCC's decision-making process, however, would not provide guidance to the broadcast industry on the contours of the current, rather haphazard approach to indecency determinations.
V. Fox v. FCC: ARGUMENTS FOR AND AGAINST AN ARBITRARY AND CAPRICIOUS INDECENCY DETERMINATION
In Fox v. FCC, the Second Circuit did not decide on the arbitrariness of the FCC's contemporary community standards, despite the fact that it is a critical factor to indecency findings. But the court's discussion of fleeting expletives implicates the arbitrary and capricious nature of the current indecency regime. The Networks successfully argued to the Second Circuit that the FCC's November 2006 Remand Order is arbitrary and capricious under the APA "because the FCC has made a 180-degree turn regarding its treatment of 'fleeting expletives' without providing a reasoned explanation justifying the about-face." (73) To reach its conclusion, the Second Circuit addressed the FCC's basis for indecency determinations and its reasons for the change in policy.
A. The FCC's Reasons for Moving To Regulate Fleeting Expletives
To explain its change in policy to regulate fleeting expletives, the FCC supplied the same reasons it has given for regulating indecent language since Pacifica. According to the Second Circuit, "[t]he primary reason for the crackdown on fleeting expletives advanced by the FCC is the so-called 'first blow' theory described in the Supreme Court's Pacifica decision." (74) In Pacifica, the Court rejected an "avert your eyes" rationale, (75) and analogized the first hearing of indecent language to the first blow of an assault--turning off the broadcast after the first hearing is as ineffective a remedy as running away from an assault after the first blow. (76) Based on that statement by the Court in Pacifica, the FCC's November 2006 order stated that isolated or fleeting expletives unfairly force viewers to take the first blow. (77)
A second reason for regulating fleeting expletives concerns the difficulty of determining what the word(s) mean in context. The FCC suggests that an expletive's power derives from its sexual or excretory meaning. (78) Therefore, the argument follows that literal and non-literal use of a word, e.g., "fuck," falls within the indecency regime because "it is difficult (if not impossible) to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions." (79) A third reason offered by the FCC to support regulating fleeting expletives is the concern that an exemption for fleeting expletives would "permit broadcasters to air expletives at all hours of a day so long as they did so one at a time." (80) The FCC also reasoned that "categorically requiring repeated use of expletives in order to find material indecent is inconsistent with [their] general approach to indecency enforcement, which stresses the critical nature of context." (81) In sum, the force of these reasons derives from the meaning that the reasonable broadcast viewer would ascribe to an expletive in context in order to find it indecent.
B. Case Studies and the Second Circuit's Rejection of the FCC Rationales
Even though the FCC has hung its hat on the first blow theory since Pacifica, the Second Circuit found it unpersuasive and incoherent when considered along with their standard for finding indecency. The court of appeals highlighted the inconsistency between the first blow theory and the contextual analysis at the heart of the indecency policy. (82) During oral argument, the FCC further undercut the first blow theory by stressing that it does not take the position that any occurrence of an expletive is indecent. (83) The tension between the first blow theory and the indecency policy is demonstrated in the December 13, 2004 episode of "The Early Show" on CBS, one of the four television shows at issue in Fox v. FCC. (84)
The FCC struggled with how to evaluate "The Early Show" from December 13, 2004. During a live interview, at approximately 8:10 a.m. (EST), a cast member from "Survivor: Vanuatu" described a fellow cast member as a "bullshitter." (85) Based on the principal factors mentioned in the Industry Guidance policy statement, the FCC's 2006 Omnibus Order determined that the language was indecent because, in this circumstance, the "S-Word" was vulgar, graphic and explicit, and it was shocking and gratuitous. (86) After the Omnibus Order, Fox and CBS petitioned for review by the Second Circuit, and the FCC moved for a voluntary remand which resulted in the Order on Remand. (87) The Order on Remand doubled back on the Omnibus Order, deferring to the network's characterization of the interview as a "news interview," not an entertainment program, and thus it was not actionably indecent. (88) The Second Circuit viewed the decision in the Order on Remand, and the news exception, which the FCC emphasized as broad at oral argument, as a fiat contradiction to the first blow rationale. (89)
1. Issues with Demonstrative Indecency: Literal and Non-literal Uses
Like "jerk" a century ago, implicit in the Second Circuit's rejection of the FCC's second argument is the idea that the expletives "shit" and "fuck" are not demonstratively indecent under the current community standard. This second argument stressed that a fleeting expletive may be regulated because, despite the fact that "shit" and "fuck" have non-literal usages, it is difficult or impossible to tell whether the usage is literal, and they are, after all, expletives because of their literal meaning. (90) Rejecting this argument, the court of appeals found the rationale unsupported by record evidence and contradicted by evidence from the Networks, and not simply the result of a difference in opinion from the FCC's judgment. (91) The court stated that the FCC's rationale "defies any commonsense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any 'sexual or excretory' meaning." (92)
To support its conclusion, the court of appeals provided several illustrations of expletives used in a way that could not reasonably be construed as referencing sexual or excretory organs or activities. (93) A prime example cited by the court is from the 2003 Golden Globe Awards, where Bono, lead singer of the band U2, said, "this is really, really, fucking brilliant," (94) during his acceptance of the award for best song in a movie. (95) The court of appeals also included analogous colorful examples from President George W. Bush and Vice President Dick Cheney. (96) President Bush, during the 2006 G8 summit in Russia, remarked to British Prime Minister Tony Blair that the UN needed "to get Syria to stop doing this shit...." (97) The example from Vice President Cheney recounted the June 2004 exchange with Senator Patrick Leahy on the Senate floor where the former told the latter, go "[f]uck yourself." (98)
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