First reaction to the Big Decision

[Blogmeister’s note: Our crack team covered the oral argument in Fox last November, and will be providing additional coverage of the Court’s decision released April 28.  The following is one commentator’s view of the landscape.]

The Supreme Court has issued its long-awaited decision in FCC v. Fox Television Stations, Inc., the case involving the application of the FCC’s indecency policy to “fleeting expletives”. By a 5-4 vote, the Justices concluded that the FCC’s action was consistent with its statutory obligations under the Administrative Procedure Act. Accordingly, they reversed the contrary decision of the U.S. Court of Appeals for the Second Circuit and remanded the case back to the Second Circuit. Score one for the Commission.

While any decision favoring the Commission’s indecency policy in any way is troubling, the good news here is that the Supreme Court’s ruling changes very little on the indecency front. To the contrary, its primary effect in the indecency area is to set the stage for the next, and far more important, act in this long-running drama.

But the news is not all good. Lurking behind the high profile “celebrities talking dirty on TV” allure of the case is a major shift in a seemingly mundane legal doctrine, a shift that could affect FCC regulatory activity in all respects for years to come. So while many commentators may choose to dwell on the obvious “indecency” aspects of the ruling, the real importance of this decision lies elsewhere.


As most everybody probably knows, this case involved the FCC’s determination that Fox had broadcast indecency during two awards shows. In one, Cher commented, “I’ve also had critics for the last 40 years saying that I was on my way out every year.  Right.  So  fuck ‘em”. In the other, Nicole Richie said, “Have you ever tried to get cow shit out of a Prada purse?  It’s not so fucking simple.”

The Commission had historically declined to go after the occasional, single use of such words as “fuck” and “shit”, uses which are referred to familiarly as “fleeting expletives”. Here, however, the Commission changed course and held that Fox’s broadcast of fleeting expletives was a violation. Fox appealed the ruling, raising two basic arguments. First, according to Fox, the FCC’s about-face on fleeting expletives was arbitrary and capricious, in violation of the Administrative Procedure Act (APA) – that is, the FCC failed to explain adequately why it was abandoning its previous policy. Second, Fox argued that even if the action survived the APA attack, the FCC’s new policy violates the First Amendment.

The Second Circuit in New York agreed with both of Fox’s arguments. But, because courts generally shy away from making constitutional determinations if they don’t have to – for the same reasons that you don’t undergo brain surgery if your problem can be effectively treated with less invasive and dangerous methods – the Second Circuit’s actual ruling was limited to the APA ground. That didn’t stop the Second Circuit, however, from including an extended discussion – referred to as “dicta” – in which it made clear that the Second Circuit was very skeptical of the constitutionality of the FCC’s new approach.

The Second Circuit decision effectively stopped the Commission’s indecency juggernaut in its tracks. The FCC asked the Supremes to review the case, and the Supremes agreed.

In his majority opinion, Justice Scalia held that, contrary to the Second Circuit’s view, the FCC did explain its change in policies, at least enough to satisfy the APA. Writing for himself, Chief Justice Roberts, and Justices Thomas, Kennedy and Alito, Scalia concluded that the Commission had recognized that it was shifting course and it had articulated sufficient reasons why it believed the new course to better. So as a matter of administrative law, the new fleeting expletives policy was properly adopted. (Of course, the other members of the Court – Justices Stevens, Ginsburg, Souter and Breyer – did not agree, but without that crucial fifth vote, all they could do was issue dissenting opinions.) Since the Second Circuit’s decision was limited to the APA/administrative law issue, the FCC won and the indecency policy lives on.

At least for a while.

Consistently with the doctrine of avoiding constitutional questions if at all possible, neither Scalia nor any other Justice (there were a total of four additional concurring and/or dissenting opinions) addressed the constitutionality of the new fleeting expletives policy. While the Second Circuit opinion had included the dicta discussion on that point, the Supreme Court recognized that dicta has no actual legal effect, so the Supreme Court could simply ignore it.

As a result, the case now goes back to the Second Circuit for “further proceedings consistent with [the Supreme Court’s] opinion.”

But, thanks to the dicta portion of the Second Circuit’s decision, we all have a pretty good idea of what is likely to happen when the case toddles on back there: presumably, Fox will re-present its constitutional arguments and, if the Second Circuit still sees those arguments the way its saw them in 2008, we should be seeing a new Second Circuit decision declaring the FCC’s indecency policy to be unconstitutional. If and when that happens, we can expect the Commission to seek review, again, by the Supreme Court.

So the Supremes’ decision in Fox does little to alter the landscape in the short term. While the Commission may feel fortified by Scalia’s decision – and Acting Chairman Copps wasted no time in crowing about it – the fact is that the fleeting expletives policy is still not out of the woods by a long shot. Getting rid of the APA arguments merely clears the path toward some final resolution of the constitutional issues, possibly in the next couple of years.

If and when that happens, it’s reasonable to assume that the Second Circuit will stick to the position (outlined in its earlier dicta) that the policy can’t survive First Amendment analysis. Such a ruling could bring the case back to the Supremes. Interestingly, in his concurring opinion, Thomas expresses the view that the “scarcity rationale” – i.e., the traditional justification for governmental regulation of broadcast content – may no longer have any validity (if it ever had any validity at all – according to Thomas, the primary cases in which that rationale was articulated by the Court “were unconvincing when they were issued.”). Additionally, while Kennedy technically joined Scalia’s opinion, his own separate opinion oddly seems to lean more toward Breyer’s dissent than Scalia’s majority.

As a result, there is at least some reason to speculate that the Court’s decision on the APA ground may not necessarily provide any reliable indication of how the Court would rule on the far more important constitutional ground.

At this point, though, we are off in the land of speculation. Lots of things could happen between now and whenever the constitutional argument might make it back to the Supremes. Still, while the reversal of the Second Circuit’s APA decision may be disappointing to many, there are enough glimmers of hope on the constitutional side that the immediate impact of the Supreme Court’s decision on indecency regulation can be shrugged off as very limited.

A major APA shift

The same cannot be said of the impact of Scalia’s APA analysis on FCC regulatory activities as a whole. And that’s the real story in the Supreme Court’s decision.

As noted above, the APA requires that the actions of federal agencies, including the FCC, not be arbitrary or capricious. More than 25 years ago, the Supreme Court interpreted that requirement, holding that an agency must “examine the relevant data and articulate a satisfactory explanation” for actions it takes. Since then, numerous courts of appeals have read that standard, in the context of changes in agency policy, to require that the agency also explain why the reasons underlying its original policy are no longer dispositive and why the new policy is preferable to the policy being abandoned. That gloss on the Supreme Court’s 1983 decision served to assure a measure of stability in agency policies, since the agency had to be able to explain why a new policy was preferable.

But Scalia’s majority opinion in Fox throws that gloss out the window.  The Second Circuit’s rationale for the APA portion of its decision was based to a significant degree on the fact that the Commission failed to explain why its old fleeting expletives policy was no longer valid. The Second Circuit’s approach was consistent with case law developed over more than a quarter of a century.  Characterizing that approach (and the lower courts’ consistent interpretation of the APA on which it was based) as imposing a “heightened standard” or a “more searching review”, Scalia declares that that interpretation is, well, just wrong. According to Scalia, when an agency decides to change an established policy,

it suffices that the new policy is permissible under the [agency’s governing] statute, that there are good reasons for it, and that the agency believes it to be better. [emphasis in original]

In other words, the Commission can change its policies without necessarily explaining why the reasons which underlay its to-be-abandoned policy are no longer operative or persuasive. Instead, the Commission can say simply “we prefer the new policy”, and that may satisfy the APA.

This is a huge and ominous change which accords the Commission potentially vast latitude to engage in largely unexplained reversals of policy. This new take on the APA’s requirements opens the door for regulatory zigging and zagging of all sorts in all areas of FCC activity. And this new take is, as of the release of the Supreme Court’s Fox opinion, the law of the land. No need to await any decisions on remand or further review by any court – Scalia’s pronouncement is now the way it is.

So the Fox decision does have sweeping effect, but not in the indecency area where we all might have expected it. The indecency aspect of the ruling doesn’t effect any fundamental changes. But on the APA side, its repercussions could be profound and long-lasting for everyone subject to FCC regulation.