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Weekly Updates2. From the Golden Globes to the Supreme Court
The fallout from the Golden Globes incident gave rise to FCC v. Fox in the Supreme Court, and it also put a spotlight on the problem with the discretion in the indecency policy. When the FCC's Enforcement Bureau reviewed Bono's incident at the Golden Globes, it found that "[t]he word 'fucking' may be crude and offensive, but, in the context presented here, did not describe sexual or excretory organs or activities." (99) Moreover, the Enforcement Bureau made clear that when offensive language is used as an adjective to emphasize an exclamation (as Bono did) or it is used as an insult (as President Bush and Vice President Cheney did), then it falls beyond the scope of the indecency regime. (100)
Following the 2003 Golden Globes, the Parents Television Council filed numerous complaints with the FCC, and as a result, in March 2004, the FCC flipped, announcing the fleeting expletives policy that essentially held any utterance of "fuck" indecent. (101) The Golden Globes decisions demonstrate a troubling breadth of discretion and obscurity in the FCC's determinations that speech is patently offensive by contemporary community standards. The FCC's indecency analysis stresses the critical importance of the 'full context," (102) and acknowledges the use of "fuck" as an intensifier, but nevertheless concludes that, in any context, "fuck" carries a sexual connotation bringing it within the scope of the indecency regime. (103)
The court of appeals made quick work of the FCC's floodgates and contextual arguments, instead moving forward to the conclusion that the lack of evidence supporting the mercurial fleeting expletives policy renders it arbitrary and capricious. The FCC's floodgates argument was determined to be "divorced from reality" because the FCC itself recognized in the Order on Remand that fleeting expletives were rare even before Golden Globes. (104) Likewise, the FCC's argument that requiring repeated use of expletives undercuts its contextual approach is dismissed for their own paradoxical position that in a contextual analysis "luck" and "shit" are per se indecent. (105) In sum, the Second Circuit found these rationales for the amplification of the indecency policy an unreasonable departure from the prior regime. (106) Moreover, the court found the FCC's policy "devoid of any evidence that suggests a fleeting expletive is harmful," which it suggested is particularly important today because there are so many more media outlets that may expose children to expletives than when the FCC began sanctioning indecent speech. (107) The unreasonable rationales combined with the lack of evidence led the court to decide that the FCC failed to meet the reasoned basis required by State Farm. (108)
C. The FCC's Appeal Hinges on Reasonableness, Not a Hard Look
In the Solicitor General's Petition and Brief for the Petitioners, the court of appeals is rebutted with heavy reliance on Pacifica, and only sparse reference to the APA and State Farm. (109) The Petition presented colorful support for the first blow theory, suggesting that it does not require the FCC to treat any first blow as a knockout punch in order to be relevant in contextual analysis. (110) Citing Pacifica, the FCC's Supreme Court Brief highlighted the Court's characterization of the first blow theory and Pacifica's suggestion that context could effect the weight of the first blow. (111) Reference to the APA in the Petition, however, is limited to a suggestion that the Act does not require consistent prohibition in all contexts, and the absence of the same cannot be reconciled with Pacifica, and is not necessarily unreasonable. (112)
The FCC's Supreme Court Brief actually states that contextual distinctions justify the implementation of the fleeting expletives policy, but the FCC did not offer any evidence of offensiveness or harm. (113) Citing Judge Leval's dissent as support, the FCC's Supreme Court Brief urges that the FCC's general observation that expletives cannot be divorced from their sexual or excretory meaning is not irrational. (114) Rather than provide any evidentiary support for that proposition, the Petition cites a D.C. Circuit case and a Supreme Court case, which suggest that such evidence is not required to establish indecency or obscenity. (115) In this context, the Petition frames the State Farm issue as a change in policy to better implement [section] 1464, rather than an unreasonable departure from the prior indecency policy. (116)
Unfortunately, the FCC failed to consider the heart of the arguments that cut against its position. While State Farm review for arbitrary and capricious action is narrow, dismissing the relevance of evidentiary support in the agency's decisions loses sight of the thrust of State Farm, which requires a rational connection between the facts and the agency's decision. (117) Also, while Pacifica and the First Amendment are certainly relevant to the issue at hand, the extensive reliance on its arguments and holding is misplaced given that the present question concerns administrative law. In fact, the FCC's request that the Supreme Court remand the case to consider the First Amendment issue along with the APA issue (118) suggests awareness that the FCC's APA argument is thin. The FCC gave little attention to the scope of arbitrary and capricious review, which further highlights the need for Supreme Court guidance in the convoluted indecency policy, and for evaluating arbitrary and capricious administrative decisions more generally.
VI. CONCLUSION: THE FUTURE OF A POLICY AT RISK
After recognizing that the fleeting expletives policy represents an amplification rather than a subset of the FCC's indecency regime, it is clear that judicial review of fleeting expletives carries broad implications for the entire indecency policy. The arguments provided by the FCC in Fox v. FCC highlight that fact, and also demonstrate rampant discretion buttressed by general observations rather than facts. Those two considerations are troubling both as an abuse of administrative power, and consequently, as murky waters that stifle speech rather than provide meaningful guidance to broadcasters. The Supreme Court's decision in FCC v. Fox should clarify the contours of administrative discretion in regulating indecency. Confining the FCC to the limits of administrative discretion set forth in State Farm will ease administration by the agency and will provide clearer notice to broadcasters.
The FCC's argument fails to recognize that the Supreme Court's arbitrary and capricious standard looks to reasons in relation to facts, and in fleeting expletives regulation--and in indecency determinations generally--facts are needed more than layers of rationales. In light of the scope of the arbitrary and capricious review for a reasoned basis for an agency's action outlined in State Farm, review of fleeting expletives, and the Court's treatment of the FCC's reasons and methods for indecency determinations, implicates the entire indecency regime directly or indirectly. If the Court determines that methods and reasons for finding fleeting expletives indecent represent a tinkering of the entire indecency regime, then the decision should cause immediate ramifications to indecency determinations generally. However, it is possible that the Court will cordon off fleeting expletives from the larger indecency policy. But, even if the Court adopts the latter approach, it should only delay a related challenge to the indecency regime--either way, Fox v. FCC has exposed the FCC's reasons and methods in enforcing [section] 1464 as thin in concrete bases and thick with meandering discretion.
Of course, invalidating any portion of the indecency regime would present a significant development--after all, this is the first case the Court has heard on broadcast indecency since Pacifica. (119) That creates a predicament considering Chief Justice John Roberts's approach to creating consensus with narrow decisions on hot issues. (120) Deciding on the lack of factual basis for indecency determinations should strike that balance by providing clearer guidance to broadcasters without gutting the FCC's ability to regulate indecent speech. Incorporating a factual component into the determination of contemporary community standards should provide clarity to what constitutes indecent speech under [section] 1464, and should also allow the policy to comport better with contemporary society. As noted above, the determinations of speech as patently offensive by contemporary community standards are reduced to general observations or nebulous interactions between the FCC and different sectors of society. There are a variety of ways for the FCC to cull facts regarding what is considered indecent. (121)
The nature of arbitrary and capricious review under State Farm and Baltimore Gas may result in a more or less deferential view, which should probably correlate to the rigor of the corrective measures directed to the FCC. In other words, if the Court upholds the Second Circuit by applying a hard look at the FCC's actions using the factors enumerated by the Court in State Farm, (122) then, that less deferential approach suggests more rigorous adjustment in the FCC's policy. On the other hand, if the Court finds the policy arbitrary and capricious under the more deferential approach from Baltimore Gas discussed above, then perhaps a less rigorous fact finding would be required in indecency analysis. Whichever method the Court applies, this case presents an opportunity for the Court to cut through the Gordian knot of indecency rhetoric, which has led to the present swell of cases and abuse of discretion elucidated by Fox v. FCC's treatment of fleeting expletives.
(1.) FCC v. Pacifica Found., Inc., 438 U.S. 726, 748-50 (1978) (holding that broadcasting indecent speech has more limited First Amendment protection due to its uniquely pervasive presence in society and because it is uniquely accessible to children). Without making light of their significance, the constitutionality of the FCC's indecency regime, and related arguments concerning the strength and validity of Pacifica's holding, are beyond the scope of this analysis.
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