WASHINGTON (CN) – The U.S. Supreme Court on Tuesday voted 5-4 to uphold a government ban on “fleeting expletives” over the airwaves, implemented in response to celebrities’ profane outbursts at award shows that were broadcast live. Justice Scalia said the Federal Communications Commission’s “decision to retain some discretion does not render arbitrary and capricious its regulation of the deliberate and shocking uses of offensive language at the award shows under review — shows that were expected to (and did) draw the attention of millions of children.”
The case stems from a 2006 FCC policy that fines broadcasters for allowing brief, one-time utterances of profanities to air on live television.
The FCC adopted the policy after deciding that the broadcasting of profanity during awards shows constituted “indecent” speech. Singer Cher and reality star Nichole Ritchie put the policy to the test during Fox Television’s broadcasts of the 2002 and 2003 “Billboard Music Awards.” Cher said, “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f-k ’em.” Ritchie, while bantering on stage with Paris Hilton about their show “The Simple Life,” asked the audience, “Why do they even call it ‘The Simple Life’? Have you ever tried to get cow s-t out of a Prada purse? It’s not so f-ing simple.”
No fines were issued, but the FCC has the ability to fine future violators.
Major broadcasters, including Fox, ABC, NBC and CBS challenged the new policy, saying it was an unconstitutional violation of free-speech rights.
The FCC appealed the case to the Supreme Court after a three-judge panel of the 2nd Circuit rejected the ban on a 2-1 vote. The federal appeals court in Manhattan said the agency had changed its policy without adequate warning or explanation.
The high court took up the controversial case and issued a splintered ruling, with two justices authoring portions of the majority opinion, plus two concurrences and two dissents.
In the majority opinion, Justice Scalia acknowledged that the FCC had to explain its reasons for adopting the new policy, but deferred to the agency’s decision.
“[The FCC] 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 of course adequately indicates,” Scalia wrote (emphasis in original).
He noted that, on appeal, the broadcasters repeatedly referred to the First Amendment.
“If they mean to invite us to apply a more stringent arbitrary-and-capricious review to agency actions that implicate constitutional liberties, we reject the invitation.”
Scalia then rejected the 2nd Circuit’s finding that the new enforcement policy was arbitrary and capricious, saying the FCC had “entirely rational” reasons for changing the policy.
The majority opinion relied heavily on the court’s context-based approach in Pacifica, which allowed the FCC to sanction a broadcast of comedian George Carlin’s 12-minute “Filthy Words” monologue. The court rejected Fox’s claim that the FCC’s repeated appeal to “context” is a smokescreen for a standardless regime of unbridled discretion.
Justice Thomas wrote separately to say he backed the agency’s decision, but questioned the present-day applicability of the two precedents supporting it. The FCC and the high court previously weighed the scarcity of radio frequencies in determining which First Amendment standard to apply — a legal rule that Thomas said “lacks any textual basis in the Constitution.”
Justice Kennedy concurred in part, agreeing with dissenting Justices Breyer and Stevens that the FCC must explain why its original policy is no longer valid before switching course. “The FCC’s shifting and impermissibly vague indecency policy only imperils broadcasters and muddles the regulatory landscape,” Stevens wrote.
Justice Ginsburg, also dissenting, argued that brief profanity should not be held to the same standards as Carlin’s routine, which contained repeated expletives. “In contrast, the unscripted fleeting expletives at issue here are neither deliberate nor relentlessly repetitive,” she wrote.
The four dissenting justices were Breyer, Stevens, Ginsburg and Souter.
The court declined to address the constitutional issues, because the 2nd Circuit has not definitely ruled on the constitutionality of the FCC’s orders. “We see no reason to abandon our usual procedures in a rush judgment without a lower court opinion,” Scalia concluded.