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U.S. Supreme Court Revisits Indecent Broadcast Programming

By Barry Skidelsky, Esq.

On April 28, 2009, by a vote of 5-4 (with 5 additional and separate opinions also being released), the U.S. Supreme Court reversed and remanded to the U.S. Court of Appeals for the Second Circuit its decision in Federal Communications Commission v. Fox Television Stations, Inc. In writing the Supreme Court's majority opinion, Justice Scalia held that, contrary to the Second Circuit's view, the FCC did not act arbitrarily and capriciously in violation of the Administrative Procedure Act (“APA”), but rather did adequately explain the Agency's departure from its generally hands-off policy regarding so-called fleeting expletives . The Supreme Court specifically declined to rule on the constitutionality of the indecency finding, as the Second Circuit had not made its decision on that ground, and despite extended "dicta" by the Second Circuit that it was very skeptical of the constitutionality of the FCC's new approach.

Most observers recognize that the Supreme Court's ruling changes very little on the indecency front in the near term, at least until the issue likely returns to our country's top court following this remand to the Second Circuit and a companion remand to the Third Circuit in connection with the so-called "wardrobe malfunction" of Janet Jackson during a Super-bowl half-time show broadcast on CBS. However, many fail to recognize the real import of Fox is the major APA shift it creates. The Supreme Court has now made it easier for administrative agencies to depart from precedent without necessarily explaining why the reasons which underlay its to-be-abandoned policy are no longer persuasive, as a mere statement of preference for the new policy (as the FCC articulated in Fox) may suffice, rather than having to explain reasons why the new policy is better. This profound shift to a lower standard of accountability has far-reaching consequences and should be of great interest to anyone involved with administrative law at any level of government, going well beyond federal regulation of broadcast media.

In his dissent, Justice Stevens disagreed with the majority's assessment that the FCC need not fully explain its departure from prior policy, concluding that the Supreme Court's 1978 majority opinion in Pacifica (which Stevens wrote, and which involved the late George Carlin's monologue about seven dirty words) was meant to be limited to sexual or excretory "activities or organs", and should not now be expanded to treat as indecent any expletive that has a sexual or excretory "origin". In the questionably indecent words of Bono, that's "fucking brilliant!"

Also of interest is the concurring opinion of Justice Thomas in Fox, in which he expressed the view that the "scarcity" rationale -- the traditional justification for governmental regulation of broadcast media (which is treated dramatically differently than other non-electronic and electronic media) -- may no longer have any validity, if it ever had any. Escaping scrutiny for now, the Supreme Court may likely be compelled to address the issue of treating broadcasting differently than other media for First Amendment purposes, depending on how the Fox and CBS remands play out.

Barry Skidelsky is Co-Chair of both the NYSBA/EASL/TV & Radio Committee and FCBA/New York Chapter; contact: bskidelsky@mindspring.com or (212) 832-4800.

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This page contains a single entry from the blog posted on May 14, 2009 8:47 PM.

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