Freedom of Speech and Association

Federal Communications Commission v. Fox Television Stations, Inc. (2009)


  • May 18 2018

 

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Issue

Whether the Federal Communications Commission’s liability proceedings against Fox Television for its broadcasting expletives on public television was an “arbitrary or capricious” exercise of its statutory authority.

Facts

In 1973 the Federal Communications Commission FCC issued a declaratory order against the Pacifica Foundation after the foundation aired an explicit and offensive program on public television. While Pacifica was appealing the case through the courts, Congress passed a law instituting U.S.C. 18 §1464, which regulated the broadcasting of expletives. The law stated that, “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” In 1978 the Supreme Court held in FCC v. Pacifica Foundation that the First Amendment allowed for limited censorship of public television.

As a result, the FCC gradually began regulating the broadcasting of expletives. In 2001 the FCC clarified certain situations in which the use of expletives was allowed. Along with giving grace to networks for airing expletives during live interviews or when vital to artistic expression, the FCC also stated that the use of a “fleeting isolated expletive” would not warrant action by the FCC. In 2003, as a response to the growing use of profanity on public television, the FCC reversed its previous statement and declared that it would take action against networks that broadcast fleeting expletives.

In 2002 and 2003, during the Fox broadcast of the Billboard Music Awards, presenters “Cher” and Nicole Richie used the expletives “f—" and “s—" during their speeches. In 2003 the FCC took enforcement actions against Fox as well as multiple other radio and television broadcasting networks for their airing of expletives. After the FCC took actions, Fox appealed to the Second Circuit Court of Appeals, claiming that the FCC’s actions were unconstitutional and that the First Amendment prohibited the government from regulating speech on public television.

The Court Below

The Second Circuit Court of Appeals was the first court to hear the case. The court ruled in favor of Fox Television Stations, holding that the FCC policy sanctioning “fleeting expletives” was “arbitrary and capricious.” See opinion below:

Fox Television Stations, Inc. v. Federal Communications Commission, 489 F.3d 444 2nd Cir., 2007 

The FCC appealed to the Supreme Court, and the Court granted certiorari. The Supreme Court reversed and remanded the decision of the court below, holding that “The FCC's orders are neither ‘arbitrary’ nor ‘capricious’ within the meaning.” See opinion below:

Federal Communications Commission v. Fox Television Stations, Inc., 129 S.Ct. 1800 2009

Question before the Court

“Whether the court of appeals erred in striking down the Federal Communications

Commission’s determination that the broadcast of vulgar expletives may violate federal

restrictions on the broadcast of ‘any obscene, indecent, or profane language,’ 18

U.S.C. 1464; see 47 C.F.R. 73.3999, when the expletives are not repeated.”

CCJ filed an amicus curiae in support of the FCC

Summary:

Stronger FCC enforcement of the ban against indecency is a reasonable exercise of the commission’s statutory authority, especially in the face of increasing indecent language over public airwaves. Also, the commission’s time-of-airing constraint—by which the commission regulates the time, place, and manner of indecent or expletive content—still leaves open other channels of expletive communication. Third, the commission’s distinguishing speech based on context is consistent with its statutory authority and is in keeping with First Amendment principles prohibiting vagueness or overbreadth.

The FCC acted reasonably and in accordance with its statutory authority in tightening restrictions on the use of expletives, and it did so in response to the increasing use of vulgar language on public television. The broadcasting of vulgar language forced families and children to “take the first blow,” as established in FCC v. Pacifica 1978. The viewers of broadcasts had no prior warnings that expletive language was coming and could only turn the broadcast off after listening to the first expletive. The court below accepted the first-blow concept as valid but held that because the FCC had failed to enforce isolated expletives for the past 30 years, it must refrain from doing so now. The lack of enforcement emboldened broadcasters to use more vulgar language, and the more frequent use of expletive language warranted stricter enforcement.

The FCC exercised appropriate discretion when it adopted the time, place, and matter regulations on expletive content. The agency did not place a ban on expletive language, which may have violated free speech; instead, it merely restricted the times and ways in which it could be used. It left open numerous alternative channels of communication for expletive content. The FCC only enforced the ban from 6:00 a.m. to 10:00 p.m., a regulation aimed at protecting children from exposure to detrimental moral influences inappropriate for their age 47 C.F.R. §73.3999b. The FCC time regulations advanced First Amendment interests by leaving channels of communication, such as the Internet and paid cable television, open to indecent speech. Furthermore, if adults wished to hear such expletive language they could “purchase tapes and records or go to theaters and nightclubs to hear these words” FCC v. Pacifica.

Distinguishing speech based on context is consistent with the FCC’s authority both statutorily and in accordance with the First Amendment’s free speech provision. The District Court’s argument that the FCC’s regulations were irrational because they were unequally applied was flawed. Their argument would have left the FCC with only two options: either prohibit all expletives or permit all expletives. This would force the FCC to permit all explicit language because prohibiting all explicit language would be unconstitutional. Context has always been a factor in determining whether speech is constitutionally protected. In the majority opinion in Schenck v. United States 1919, the Court held, “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Certain actions are appropriate in some situations and inappropriate in others. Thus, the FCC’s decision to restrict the use of expletives in certain situations and allow their use in others was well grounded in legal precedent and acceptable under the First Amendment.

Final Outcome

The Supreme Court held that the FCC had sufficient reasons for changing its policy. It reversed and remanded the decision of the court below in favor of the FCC, holding that the FCC’s new policy standard fell within the limits of 18 U.S.C. § 1464.  The Court’s decision aligned with CCJ’s argument that the FCC was justified in strengthening their enforcement of bans on expletives.