Supreme Court Narrowly Upholds FCC's “Fleeting Expletives” Policy on Administrative Grounds

On April 28, 2009, the Supreme Court issued a 5-4 decision in FCC v. Fox Television Stations, Inc. reversing the U.S. Court of Appeals for the 2nd Circuit's holding that the Federal Communications Commission (FCC) arbitrarily and capriciously decided to begin enforcing indecency prohibitions against “fleeting expletives” on broadcast television and radio. It accordingly remanded the case to the Circuit Court to consider whether the enforcement policy violates the First Amendment.

The Supreme Court’s decision focused solely on the narrow Administrative Procedure Act (APA) issue that the 2nd Circuit decided, which involved whether the FCC adequately explained its change in policy. The Supreme Court did not address at length the lower court’s discussion of the First Amendment, in which it expressed “skeptic[ism] the Commission can provide a reasoned explanation for its ‘fleeting expletive’ regime that would pass constitutional muster.” The Supreme Court majority opinion did acknowledge, however, that whether the policy is unconstitutional “will be determined soon enough, perhaps in this very case.”

The Court’s fragmented decision generated six opinions. Justice Scalia wrote the opinion for the Court that was joined by Chief Justice Roberts and Justices Alito, Thomas and Kennedy, with Justices Thomas and Kennedy writing separate concurring opinions. Justice Breyer wrote a dissent joined by Justices Souter, Stevens and Ginsburg, the latter two of whom each also wrote separate brief dissents. The majority opinion resolved the APA issue by clarifying that agencies face no greater burden justifying their actions when changing existing policy than when setting policy in the first instance, and by holding the FCC adequately explained why it would no longer forbear from enforcing broadcast indecency rules against fleeting expletives.

At the same time, the combined opinions suggested most justices may vote to reverse the FCC policy if the First Amendment issue comes back to the Court. Among the five justices who comprised the majority, Justices Thomas and Kennedy wrote that the answer might be different were the Court to review the policy on constitutional grounds. In particular, though he concurred on the APA issues, Justice Thomas wrote it may be time to reconsider the Pacifica Foundation and Red Lion cases that give the FCC greater leeway to regulate broadcast content. Separately, Justice Kennedy stressed that his concurrence rested on a narrow, technical reading of the APA and did not take into consideration constitutional concerns.

Among the dissenters, Justice Breyer’s opinion that the new fleeting expletives policy exceeds Pacifica’s constitutional limits was joined by three other justices. In Justice Ginsburg’s separate opinion, she wrote that she wanted to note in particular that “there is no way to hide the long shadow the First Amendment casts over what the Commission has done.”