[Blogmeister’s note: As part of our overall coverage of the on-going development of FCC indecency law and policy, we present here a nitty-gritty synopsis of the six separate opinions issued by the Supreme Court in FCC v. Fox. Veteran court-watcher and First Amendment guru Kevin Goldberg has read all 72 pages, so you don’t have to . . .]

Just because the fortune-teller got it right does not necessarily mean that we have to like it when the accurately-predicted future becomes present reality. Like when we correctly read the tea leaves in the wake of the November 4, 2008 oral arguments in FCC v. Fox Television Stations, Inc. The Supreme Court has – by the 5-4 margin we predicted (though we reversed the positions of Justices Kennedy and Souter) – overturned the earlier ruling against the Commission by the United States Court of Appeals for the Second Circuit.

The Supreme Court ruled that the FCC did not violate the Administrative Procedure Act (APA) when the Commission suddenly, and without prior warning to broadcasters, reversed 25 years of agency precedent by ruling that “fleeting expletives” broadcast on the 2002 and 2003 Billboard Music Awards violated the indecency rules.  The Court did not take any position as to whether the FCC’s application of the indecency rules violated the First Amendment.

 Our post-argument impressions on the case (which include a summary of key quotes from the oral arguments) and Harry Cole’s early thoughts on the Court’s decision offer significant background.  Here’s a summary of the Court’s majority, concurring and dissenting opinions.

Majority Opinion (Justice Scalia, joined by Chief Justice Roberts and Justices Alito, Thomas and Kennedy)

Justice Scalia wrote the Court’s majority opinion. He commenced by tracing the history of the Commission’s application of the indecency statute (18 U.S.C. §1464) from its start in the 1975 Pacifica decision (addressing a broadcast of George Carlin’s famous “Filthy Words” monologue, a ruling that eventually ended up in the 1978 Supreme Court decision in F.C.C. v. Pacifica Foundation).  

 (We won’t go into all that legal history here. If you’re interested, contact our colleague Joe Di Scipio, who has put together a way cool PowerPoint presentation tracing the recent development of indecency regulation.)

Scalia’s majority opinion held that the APA does not require an agency to engage in a “heightened review” of its prior policy decisions before reversing course on those policies. Instead, according to Scalia, an agency must only (1) acknowledge that it is changing its policies and (2) show good reasons for the change. (In Scalia’s view, the Second Circuit had improperly required such “heightened review”.)  Justice Scalia also flatly smacked down any notion that heightened review is required when the change affects a constitutional right, as suggested by Fox’s counsel during oral argument.

Applying this new, minimal standard of accountability, Scalia found that the Commission had not acted in an arbitrary or capricious manner.  The Commission’s forthright acknowledgment that it was “break[ing] new ground”, combined with an equally forthright disavowal of earlier, contrary, decisions as “no longer good law”, was sufficient, especially where the FCC hadn’t imposed an actual penalty. He further found that the Commission’s change – at least on a theory that allowing fleeting utterances would lead to more fleeting utterances – was perfectly rational because technology to bleep out these words is widely available. 

The final section of the Scalia opinion garnered the support of only three other Justices, as Justice Kennedy did not join this section. In that section Scalia criticized the opinions of his dissenting colleagues.  He disagreed with Justice Breyer’s dissenting sentiment that the Court must engage in increased oversight of an independent agency because these agencies are “less political”.  According to Scalia, an independent agency endures a different kind of oversight, with Congressional oversight replacing Presidential oversight.  He pointed out that the FCC’s change in its indecency enforcement was directly traceable to Congressional pressure.

Scalia also criticized Breyer’s fear that small broadcasters will be unduly burdened by this decision because they do not have the means to purchase and employ technology to prevent the broadcast of fleeting expletives.  The Trenton-born, Queens-raised, primarily metropolis-living Scalia placed his faith in the goodness of small town folk who will know how to check their tongues during live television broadcasts.  As Scalia sees it, absent the threat of the utterance of a fleeting expletive in locally-produced programming, small market broadcasters really face no enforcement dangers at all, because the Commission has repeatedly said it will not act on utterances emanating from live breaking news events in national programming. 

And, finally, the constitutionality of the FCC’s indecency policy?  Scalia simply didn’t go there, other than to say that the issue could (and likely would) be raised on remand to the Second Circuit.

Concurring Opinion (Justice Thomas)

Justice Thomas concurred as only Thomas could:  by raising an issue that nobody really wanted to discuss, questioning the continuing validity of the “scarcity doctrine” (the  underlying rationale for the FCC’s regulation of broadcast content).  

He found this continued restriction on the First Amendment right of broadcasters troubling for two reasons: (1) the Court adopted in 1969 in Red Lion Broadcasting Co. v. F.C.C. and reaffirmed in Pacifica a rule that had no basis in the original text of the constitutional (because, of course, little boxes electronically providing music, news and other information were not known to the Founding Fathers); and (2) even if one assumes that the scarcity of physical spectrum does justify some regulation of broadcasters’ content, the availability of multiple electronic information sources – digital television/cable television/satellite television/the Internet/iPod/and God-knows-what – means there’s simply no scarcity anymore.  Thomas’s opinion invited reconsideration of Red Lion and Pacifica (and, one might argue, previewed what would be a key fifth vote in favor of striking down regulation of indecent content as violating of the First Amendment). 

 Concurring Opinion (Justice Kennedy)

Justice Kennedy joined all but one part of the majority opinion. He expressed some sympathy for Breyer’s view that heightened review of an agency’s decision is necessary when a longstanding rule or policy is being changed.  In Kennedy’s words, the necessary question is “whether an agency’s reasons for the change, when viewed in light of the data available to it, and when informed by the experience and expertise of the agency, suffice to demonstrate that the new policy rests on principles that are rational, neutral and in accord with the agency’s proper understanding of its authority”.  Where there is an established body of evidence supporting an agency’s policy, any change in that policy must be overwhelmingly supported by new evidence which shows why circumstances have changed.

Kennedy found that FCC met this standard (whether or not that standard was “heightened”).  While the FCC’s reasons for the change in its fleeting expletive policy were not, in Kennedy’s view, so “precise, detailed, or elaborate as to be a model for agency explanation”, they nonetheless “were the sort of reasons an agency may consider and act upon.”

What’s particularly interesting is that, while Kennedy may have won the battle for the FCC on this particular application of the indecency rules, he may end up winning the war against future agency actions of this ilk.  If one adds Justice Kennedy’s vote to the four dissenting votes, we might see the Court apply the higher standard in the next case of agency deviation from a prior policy position. 

Dissenting Opinion (Justice Stevens)

In addition to joining Breyer’s dissent, Justice Stevens wrote separately to emphasize two points.  First, he disagreed with the majority’s assessment that the FCC need not fully explain a departure from its prior interpretation of the indecency rules.  Second, the Pacifica decision was not as broad and sweeping as the majority thinks it was (Stevens, of anyone on the current Court, would be the one to know: he is not only the sole current member who was on the Court in 1978, but he wrote the majority opinion in Pacifica).  

His primary quarrel with Scalia regarded the extent of the Court’s holding in Pacifica.  He interpreted Scalia as believing that a proper interpretation of the Pacifica decision would treat as “indecent” any expletive that has a sexual or excretory origin.  Justice Stevens reemphasized his view of the very limited nature of Pacifica: that it related only to Carlin’s use of the words as broadcast in the middle of the day when children were likely to be in the radio listening audience.  That limited holding was supposed to be the outer limit of the FCC’s indecency rules.  And it was… for nearly 30 years.  Justice Stevens could not square the Pacifica holding and FCC’s subsequent interpretation with this Court’s approval of an FCC action that removes any distinction between the use of these words in a sexual or excretory fashion and the use of the same words in a non-sexual, non-excretory, clearly-just-a-profanity-for-the-sake-of-profanity fashion.

Dissenting Opinion (Justice Ginsburg)

Also joining Breyer’s dissent, Justice Ginsburg wrote to chastise the Court for avoiding the First Amendment issues presented in this case. Her short, but in our minds, sweet, opinion, questioned whether punishment for these fleeting expletives would be consistent with the First Amendment.  Again, viewing this in conjunction with the other dissenters and Justice Thomas’s concurring opinion, one might wonder whether the indecency regulations will survive for the long haul.  

Dissenting Opinion (Justice Breyer, joined by Justices Stevens, Souter and Ginsburg)

Justice Breyer had problems with both the legal standard outlined by the majority and the way in which the FCC justified its departure from the prior indecency decisions.

His core belief was that, when changing a policy position, an independent agency should be held to a higher standard of review than when it is instituting a new policy or rule. Departing from an established rule requires proper explanation of both the rationale for the new rule and the reasons for departing from the established rule.  Simply put: an agency must be able to answer the question “Why did you change?” 

The FCC did not – and could not – answer this question.  When it abandoned its previous, largely “hands-off-fleeting-expletives” policy, it changed a 25-year-old policy with little to no explanation for its actions. What little explanation the FCC offered was lacking in basis.  Its entire explanation consisted of two sentences amounting to nothing more in effect than “we think our new approach is consistent with Pacifica”. 

As discussed above, Breyer feared the impact of the change on small broadcasters, who may not be able to afford and employ the technology cited by the majority as a relatively easy means of avoiding liability for the broadcast of fleeting expletives. The adverse impact is especially disturbing given the special importance of local broadcasting and its already-existing financial troubles.  Breyer supported these claims with a detailed, facts-and-figures type inquiry he would demand of the FCC or any other independent agency.

Finally, the dissent attacked the majority’s constitutional avoidance argument, saying that the doctrine has no place where an agency engages in a constitutionally suspect application of its rules.  He would remand the case to the FCC and require the agency to explain its actions in light of the First Amendment concerns that are clearly applicable.


So there you have it:  six opinions and 72 pages, in which the Court upheld the FCC’s radical change in policy with regard to the broadcast of "fleeting expletives", but seemed to signal the possibility of greater oversight of future agency reversals of policy positions – and almost invited broadcasters to challenge the indecency rules and other content -based regulations on First Amendment grounds.

(Justices’ photos from the Collection of the Supreme Court of the United States)