'F-Bombed': Fleeting Expletives Equal Fines
Media Law Bulletin
Live broadcasts of award shows, sporting events and news programs once had television directors rattling off commands about camera blocking, lighting, sound and commercial break transitions. Now, directors of live television are hovering over their control boards, primed to slam their nervous hands on the censor buttons, lest a flippant expletive leak onto the air. As of April of this year, a mere slip of the tongue by an unwary celebrity, star athlete or newsperson can leave broadcasters paying large fines.
The U.S. Supreme Court recently held in FCC v. Fox Television Stations, 556 U.S. ___ (2009), that the Federal Communication Commission’s (FCC) new policy banning the use of a single, indecent four-letter word on radio and television is “entirely rational” under the law that governs federal administrative powers. The 5-4 decision expands the sanctioning power of the FCC and has broadcast corporations polishing their censoring equipment during live broadcasts.
The framing of the Second Circuit Court of Appeals’ opinion directed the Supreme Court to rule only on the FCC’s reasoning for reversing its longstanding indecency enforcement policy with respect to isolated and fleeting expletives, thereby leaving open the question of whether the ban violates the First Amendment. The respondents, the Fox Television Stations, NBC and ABC, attempted to bring the First Amendment issue to the forefront of the case. However, the Court responded with a procedural argument, noting that the Supreme Court “is one of final review, ‘not of first view’ . . . [and there is] no reason to abandon . . . usual procedures in a rush to judgment without a lower court opinion.” Surprised by the Court’s grant of certiorari of a case with a procedural issue, the legal community speculates that the underlying free speech question and its probable redress on remand may have been the driving force behind the Supreme Court’s interest. This conjecture has bloggers, legal scholars, and commentators peeking around the government powers issue to the First Amendment question, which many, including several of the Supreme Court justices, believe will come before the Supreme Court in the next two terms.
Justice Antonin Scalia wrote the majority’s point-by-point assault on the respondents’ and the Second Circuit’s stance against the FCC’s new policy. The majority rejected the broadcasters’ claim that the FCC exceeded the bounds of authority approved in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), asserting that Pacifica was never intended “to represent the outer limits of permissible regulation, so that fleeting expletives may not be forbidden.” Justice Scalia criticized the respondents’ advocation of compartmentalizing expletives as “literal” or “nonliteral” and therefore “offensive” and “not offensive” and insisted that distinguishing the words in context does not render the words in a specific context “indecent.” The majority also rejected the Second Circuit’s holding that considering each isolated expletive on a case-by-case basis renders the new policy arbitrary or capricious. Justice Scalia highlighted that, under the new policy, the FCC weighs many factors that may minimize and limit retribution and scrutinizes each case on an individual basis; therefore, small broadcasters who cannot afford delay technology may not be subject to the same standard as major corporate networks. These considerations were crucial to the majority’s endorsement of the new enforcement policy.
In dissent, Justice Stephen Breyer questioned the explanation offered by the FCC to change its indecency rules from a policy permitting a single “fleeting use” of an expletive to a policy that made no such exception. The dissent criticized many of the FCC’s arguments for the change as unsupported by any evidence—particularly the assertion that under the old policy, media syndicates were allowed to broadcast expletives at any hour of the day, as long as they were aired one at a time. Justice Breyer condemned the lack of empirical evidence to support the FCC’s explanations as insufficient for an agency whose policies touch and possibly infringe on constitutional rights.
Justice Ruth Bader Ginsburg separately dissented to highlight the seemingly unacknowledged First Amendment issue. She noted that “there is no way to hide the long shadow the First Amendment casts over what the FCC has done.” She brought attention to the context that birthed the FCC’s sanctioning power and observed the difference between an expletive-laced, scripted comedy act, as was the case in Pacifica, and an unscripted, fleeting expletive.
What does this ruling mean for broadcasters? Essentially, for those who can afford it, radio and television broadcasters will have to employ delayed transmissions and have a finger on the button ready to “bleep” the censorable. For those who cannot afford it, however, protocol is not so easily defined. Because the policy allows for individualized consideration and noncompliance if the delay technology is overly burdensome, there are no guaranteed requirements and results. Projected outcomes probably include limitations of potential guests and discussion topics, suggesting self-censorship and the government accomplishing covertly what it cannot do overtly. Whatever the consequences, one can be sure that the aftershocks of this decision will be felt in courtrooms for several decades, but this is contingent on the outcome of the constitutional issue that will surely be raised on remand.
With the FCC’s powers defined and expanded, the issue in the Second Circuit on remand will probably be: Is the FCC’s regulatory power to sanction broadcasters for unscripted, fleeting expletives an infringement on freedom of speech? Undoubtedly, the attorneys for the broadcasters will reprise the First Amendment arguments previously presented before the Supreme Court. The broadcasters argue that major shifts in culture and the vast technological improvements of the last 30 years have rendered the Pacifica standard moot. Broadcast media does not have the captive audience it once had due to the availability of satellite television, cable and the Internet. Therefore, the FCC’s asserted interest in shielding children from indecent material is undermined by children accessing indecent material by other means other than broadcasted television and radio.
The broadcasters also raise the argument that parental oversight devices, such as the V-Chip, render the FCC’s regulatory powers of indecent speech on broadcast television unconstitutional. Regulations on protected behavior are constitutional only if they are narrowly tailored and exhibit the least restrictive means to further a relevant governmental interest. Justification for the FCC’s regulatory powers regarding broadcasted material stands on the state’s interest in protecting children. However, the availability of technology to accomplish this goal undermines the necessity of the FCC’s sanctions, as the technology is a less restrictive means. These arguments will certainly be presented to the circuit court and, regardless of the outcome, the disfavored party will surely petition the Supreme Court to revisit the case.
Once back before the Supreme Court, the FCC will have to shore up on its weaker points. The FCC must confront the issue of the “least restrictive means” and argue that in spite of the V-Chip, its new policy is constitutionally furthering a state interest. In addition, the FCC will have to show that in light of the Cohen v. California, 403 U.S. 15 (1971) and Rosenfeld v. New Jersey, 408 U.S. 901 (1972) holdings, protecting children from a single-word expletive is a viable state interest. Even if the FCC is able to present convincing arguments to reinforce its most vulnerable positions, the makeup of the Supreme Court will probably be in the broadcasters’ favor.
Recent holdings and known ideological leanings give insight into the probable outcome of the First Amendment issue in the Supreme Court. Based on Scalia’s majority opinion, there appears to be leeway given to the FCC concerning First Amendment issues from justices who are traditionalists and strict constitutionalists. Therefore, Justices Samuel Alito, Clarence Thomas, Scalia and John Roberts will probably find in favor of the FCC. Conversely, based on Ginsburg’s dissent, it appears that justices who are liberal and “evolving constitutionalists” oblige a standard that would allow for fleeting expletives. Therefore, Justices Breyer, Ginsburg, John Paul Stevens and David Souter’s prospective replacement (Judge Sonia Sotomayor) would find in favor of the broadcasters. This leaves the decisive vote in the hands of Justice Anthony Kennedy. Fortunately for the broadcasters, Justice Kennedy has been heralded a strong supporter of the First Amendment, and it is unlikely that he would dismiss the constitutional objections to the FCC’s new policy. He joined the majority in the controversial flag burning case of Texas v. Johnson, 491 U.S. 397 (1989), and has been quoted: “the First Amendment is often inconvenient. But that is besides the point. Inconvenience does not absolve the government of its obligation to tolerate speech.” Therefore, the prospects do not favor the FCC, as a 5-4 ruling for the broadcasters appears to be likely. With the First Amendment question in limbo, broadcasters will have to be on guard for the occasional fleeting expletive during live broadcasts. The FCC’s new powers will likely be challenged in the federal circuit either on remand in FCC v. Fox Television Stations or by another broadcasting corporation in the very near future. In the meantime, television directors are left huddled in their production booths with sweaty palms and brows, nervously waiting for the cue to censor.