1st Amendment Issue
FCC RUN AMUCK: Fines for Fleeting Unscripted Expletives on Broadcast Television Upheld by High Court
An Analysis of the U.S. Supreme Court's Decision in FCC v. Fox Television Stations, Inc.
Dennis W. Chiu, Esq.
The United State Supreme Court upheld fines for fleeting expletives
against Fox television in a 5-4 decision in April 2009. This is one
more diminution of the First Amendment's protections of freedom of
THE CASE & U.S. SUPREME COURT DECISION
In FCC v. Fox Television Stations, Inc. (decided April 28, 2009), the
U.S. Supreme Court upheld fines handed down by the Federal
Communications Commission (FCC) in a case involving isolated utterances
of the F-word (Fuck) and S-words (Shit), during two live broadcasts
aired by Fox Television. In its order upholding the indecency findings,
the FCC stated that its Golden Globes policy eliminated doubt that
fleeting expletives could be actionable, and declared that under the
new policy, a lack of repetition is evidence against a indecency
finding, but is not a complete defense. The FCC held that both Fox
broadcasts met the new test, because one involved a literal description
of excrement and both utilized the F-Word.
The Court based its decision on the following rationale:
"1. The FCC’s orders are neither “arbitrary” nor “capricious” within the meaning of the APA, 5 U. S. C. §706(2)(A). Pp. 9–19.
… An agency must “examine the relevant data and articulate a
satisfactory explanation for its action.” [citation omitted] In
overturning the FCC’s judgment, the Second Circuit relied in part on
its precedent interpreting the APA and State Farm to require a more
substantial explanation for agency action that changes prior policy.
There is, however, no basis in the Act or this Court’s opinions for a
requirement that all agency change be subjected to more searching
review. Although an agency must ordinarily display awareness that it is
changing position [citation omitted] and may sometimes need to account
for prior fact-finding or certain reliance interests created by a prior
policy, it need not demonstrate to a court’s satisfaction that the
reasons for the new policy are better than the reasons for the old one.
It suffices that the new policy is permissible under the statute, that
there are good reasons for it, and that the agency believes it to be
better, which the conscious change adequately indicates. Pp. 9–12.
… The FCC forthrightly acknowledged that its recent actions have broken
new ground, taking account of inconsistent prior FCC and staff actions,
and explicitly disavowing them as no longer good law. The agency’s
reasons for expanding its enforcement activity, moreover, were entirely
rational. Even when used as an expletive, the F-Word’s power to insult
and offend derives from its sexual meaning. And the decision to look at
the patent offensiveness of even isolated uses of sexual and excretory
words fits with Pacifica’s context-based approach. Because the FCC’s
prior safe-harbor-for-single-words approach would likely lead to more
widespread use, and in light of technological advances reducing the
costs of bleeping offending words, it was rational for the agency to step away from its old
regime. The FCC’s decision not to impose sanctions precludes any
argument that it is arbitrarily punishing parties without notice of
their actions’ potential consequences. Pp. 13–15.
(c) None of the Second Circuit’s grounds for finding the FCC’s action
arbitrary and capricious is valid. First, the FCC did not need
empirical evidence proving that fleeting expletives constitute harmful
“first blows” to children; it suffices to know that children mimic
behavior they observe. Second, the court of appeals’ finding that
fidelity to the FCC’s “first blow” theory would require a categorical
ban on all broadcasts of expletives is not responsive to the actual
policy under review since the FCC has always evaluated the patent
offensiveness of words and statements in relation to the context in
which they were broadcast. The FCC’s decision to retain some
discretion in less egregious cases does not invalidate its regulation
of the broadcasts under review. Third, the FCC’s prediction that a per
se exemption for fleeting expletives would lead to their increased use
merits deference and makes entire sense. Pp. 15–18.
(d) Fox’s additional arguments are not tenable grounds for affirmance.
Fox misconstrues the agency’s orders when it argues that the new policy
is a presumption of indecency for certain words. It reads more into
Pacifica than is there by arguing that the FCC failed adequately to
explain how this regulation is consistent with that case. And Fox’s
argument that the FCC’s repeated appeal to “context” is a smokescreen
for a standardless regime of unbridled discretion ignores the fact that
the opinion in Pacifica endorsed a context-based approach. Pp. 18–19.
2. Absent a lower court opinion on the matter, this Court declines to address the FCC orders’ constitutionality. P. 26."
(Summary of the holding prepared by the Clerk of the U.S. Supreme Court
in its Syllabus preceding the full opinion of the Court.)
Granted Overly Broad Power to Federal Commissions to Curtail & Chill Free Speech
The opinion of the Court stands for the proposition that federal
commissions may chill the free and fleeting broadcast of speech without
explanation of how its decision is consistent with the U.S. Supreme
Court cases on the issue. Each federal commission is staffed with
constitutional law attorneys that are more than adequate to the task of
applying the law under its quasi-judicial powers.
Most quasi-judicial commissions understand that the more general an
opinion, the less grounds the subject of fines can appeal, because an
appellate court cannot claim that the commission misapplied the law, if
the application of the law is not sufficiently described. However, when
dealing with Free Speech, as a public policy decision, do we want this
quasi-judicial tactical trick to chill what all Americans may access on
The practical ability to appeal through full decisions on Free Speech
issues, restrains appointed, non-elected, and non-judicial
commissioners from acting in righteous indignation based on personal
select values and morals, held by a minority or religious position. The
majority of the Court failed to take into account in full measure the
public policy implications and erred on the side of being less
protective of speech than more protective speech.
Freedom of Speech is essential to the Bill of Rights and is arguably
this nation's most cherished right. Monarchs and despots have curtailed
speech throughout world history, and the Founding Fathers understood
that bad speech should be cured with more and better speech, not fines
or orders that chill an individual from utilizing the freedom to speak
his or her mind.
Context Required: Definition of the F-Word Has Evolved In Society as
Being Less Offensive in Certain Contexts, Not Requiring First Amendment
The bias against words in speech based on
righteous indignation is not true in all contexts. The F-Word has
evolved as modern colloquial English, just as words can morph into
different contexts in modern slang. For example, the word "bad" for a
period of time, as used in Michael Jackson's song, meant amazing or
awesome; "bad" became "good" in essence. In the late 1990s and early
2000s the word "phat" (pronounced as "fat") meant fantastic or great,
not overweight in spoken English.
The Oxford American Dictionary, defines the F-Word as follows:
"fuck |f?k| vulgar slang
verb [ trans. ]
1 have sexual intercourse with (someone).
• [ intrans. ] (of two people) have sexual intercourse.
2 ruin or damage (something).
an act of sexual intercourse.
• [with adj. ] a sexual partner.
used alone or as a noun ( the fuck) or a verb in various phrases to
express anger, annoyance, contempt, impatience, or surprise, or simply
go fuck yourself an exclamation expressing anger or contempt for, or rejection of, someone.
not give a fuck (about) used to emphasize indifference or contempt.
fuck around spend time doing unimportant or trivial things. • have
sexual intercourse with a variety of partners. • ( fuck around with)
fuck off [usu. in imperative ] (of a person) go away.
fuck someone over treat someone in an unfair or humiliating way.
fuck someone up damage or confuse someone emotionally.
fuck something up (or fuck up) do something badly or ineptly."
As used in the above phrasal verbs, "to f-word around" is not generally
considered offensive in used in a common middle-class economic social
context. Additionally, to "f-word something up" is to lay blame upon
oneself for ineptitude, which most people do not take as offensive to
In celebration, to state something is "f-word-ing great" is usually
considered a compliment. Without a requirement of context, banning the
F-Word is tantamount to banning a moving target.
The English language is both tangible and mystical. It is less precise
then many other languages. Due to English's fungible nature, the
English language has proven to be mesmerizing and yes, sometimes
vulgar. However, arguably less precision allows for greater freedom of
interpretation and possibility for artistic expression.
By allowing the FCC to fine speech or single usage of words without
proper analysis under prior free speech case law decisions chills the
necessary right to appeal, errs towards stopping speech rather than
protection of speech, and grants overly broad powers to a
quasi-judicial body who are not part of the courts.
Commissions can only be trusted if grounded in law with the checks and
balances of both administrative and judicial appeals. The U.S. Supreme
Court majority greatly weakened the foundation of commissions,
administrative law and the 1st Amendment's freedom of speech
protections in their decision in FCC v. Fox Television Stations, Inc.
(Note: all page citations are to the original pagination in the opinion
of the U.S. Supreme Court released to the public in FCC v. Fox
Television Stations, Inc. (2009) 556 U.S. ___.)