FORE! The FCC Just SLICED Your First Amendment Free Speech Rights

Amy Seefeld, Esq. on 06/15/2009

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I would love to play a round of golf with Justice John Paul Stevens.  Why?  Because he wouldn’t cover his ears or be offended if I uttered the word F*CK! after slicing the ball into the woods.  And he wouldn’t think for a moment that such a remark was an indecent reference to something sexual.  He, like most of us, would simply take the word for what it was… an expression of emotion.  Perhaps it’s not the prettiest of words, but it’s one which definitely sums up the frustration felt after a golfer hits a poor shot.

The above scenario is similar to Justice Stevens’ actual dissent in the Supreme Court’s April 28, 2009, decision in FCC v. Fox Television Stations, et al. (www.supremecourtus.gov/opinions/08pdf/07-582.pdf).  The case revolves around the use of “fleeting expletives” on live broadcast television.  Specifically, it is referring to the words f*ck and sh*t.  Words that the Federal Communications Commission feels are so offensive that when used always suggest sexual or excretory imagery from which we should be spared.  However, the Commission’s revised policy fails to distinguish between how these words are used, and what makes them “patently offensive.”  Prior to its recent policy change, these fleeting expletives were not considered indecent.  In fact, prior to the change, the FCC had a one free expletive rule.  It was only if a broadcaster used the indecent words in a recurring or repetitive way that they would constitute a violation under the old policy.  Then in 2004, in what is commonly referred to as the Golden Globes Order, the FCC declared that the use of such a word, even once, was actionably indecent and as such illegal.

In 1978 the Supreme Court ruled that it was constitutionally valid for the government, through the FCC, to censor words it deemed vulgar and indecent on public television or radio.  The case was FCC v. Pacifica Foundation.  Now, 30 years later, the FCC is attempting to put in place an even more restrictive policy.

Times have changed.  We now have subscription based cable television and satellite radio.  And what is considered vulgar or indecent has also changed.  This is easily evidenced by the relaxed rules for programming on both mediums.  Additionally, one could argue that the very meanings or usages of such expletives have also changed over time.  And certainly they no longer solely suggest sexual or excretory imagery.  So why is the FCC attempting to encroach further on our First Amendment right to free speech with a more restrictive policy when broadcasting has evolved and grown in the opposite direction?

The FCC’s 2004 policy change came in the wake of the use of these expletives in a few live award shows.  Specifically, during Fox’s broadcast of the 2002 Billboard Music Awards, when Cher received an award she said “f*ck’em” to the critics who doubted her.  And during NBC’s 2003 Golden Globe Awards, when musician Bono received an award he referred to it as “really, f*cking brilliant.”  Interestingly, in these situations the words were used as expressions of emotion and actually did not appear to suggest what the FCC described as patently offensive sexual or excretory imagery.  And yet the FCC found the networks in violation under the new more restrictive policy.

The case reached the Supreme Court after the U.S. Court of Appeals for the Second Circuit in New York found in favor of Fox’s challenge to the FCC’s policy change.  The broadcasters’ had actually focused their arguments more around the FCC policy’s violation of the First Amendment free speech issue.  The Court of Appeals found the Commission’s rule change was “arbitrary and capricious” and in violation of the Administrative Procedures Act.  It did not address the First Amendment issue other than to say that it doubted that the FCC policy could hold up under constitutional scrutiny.  It remanded the case to the FCC for a “reasoned analysis,” an explanation of its new, tougher indecency policy.  The FCC felt it had adequately stated its reasoning for the policy change and instead chose to appeal the matter to the Supreme Court.

In the Supreme Court’s 5-4 ruling, Justice Antonin Scalia, writing for the majority, ruled that the FCC did not act in an arbitrary or capricious manner by toughening its indecency policy.  He stated that the FCC’s reasoning for the ban of such words was “entirely rational” and that the Commission had provided sufficient reasoning for the policy change.  The Supreme Court stuck solely to this administrative issue in issuing its opinion, since the lower court had done the same.  The Court steered clear of the constitutionality issue, and returned the case to the U.S. Court of Appeals for determination of the constitutionality issue regarding the banning of these words. 

The real issue here, First Amendment free speech, will undoubtedly end up before the Court again, perhaps by this very case.  This recent ruling in FCC v. Fox Television Stations, et al. has actually opened the door for greater freedom in broadcasting.  Justice Ruth Bader Ginsberg hinted at it when she wrote in her dissent, “There is no way to hide the long shadow the First Amendment casts over what the Commission has done.”  And Justice Clarence Thomas, although writing for the majority and referencing the Court’s ruling in a prior case, stated, “The extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today.”  Add in the remaining two dissenters (Justices Stephen G. Breyer, and David H. Souter) and it would appear that a ban on such words will not survive the next round of constitutional scrutiny. 

 In the meantime, the networks may want to keep their fingers on those censor buttons when broadcasting any future PGA Tour events… just in case.