FCC, Fox, And That Other F-Word

Article by John P. Elwood , Jeremy C. Marwell and Eric A. White *

When Solicitor General Donald Verrilli stepped to the podium on January 10, 2012, Court watchers were poised for a blockbuster. After FCC v. Fox Television Stations made its first trip to the Supreme Court on administrative-law grounds during October Term 2008, the U.S. Court of Appeals for the Second Circuit had struck down the indecency policy of the Federal Communications Commission as unconstitutionally vague. The parties had fully briefed not only the due process theory adopted by the court of appeals, but also the larger issue of whether the Court should overrule FCC v. Pacifica Foundation,1 finally discarding the Court's increasingly dated tolerance for restrictions on broadcast television and radio networks that it would not condone for other media. The Second Circuit had all but urged that disposition by emphasizing that "we face a media landscape that would have been almost unrecognizable in 1978," but noting pointedly that only the Court could make the decision to abandon the Pacifica framework.2 That option appeared to be very much under consideration before the Supreme Court. Questions about the First Amendment consumed most of the oral argument, where the justices asked a series of pointed questions about what standard, if any, should replace Pacifica.

More than five months later, on the term's last day, the Court issued a short opinion and unanimously vacated the judgment below. Seven justices agreed on a narrow, as-applied due process rationale that left in place both Pacifica and the FCC's current indecency policy––at least for the time being. While attention soon turned to the health care challenges, the Fox decision warrants closer review, both to assess the Court's due process analysis and to examine what it may portend for the success of any future First Amendment challenge.

1. The Regulatory and Procedural History of FCC v. Fox: From "Dirty Words" to Cleaning a Purse

   As the justices remarked at oral argument, the case's regulatory and procedural history is complex.3 But because the Court's due process analysis turned in large part on how the FCC's indecency policy had evolved before the three incidents in question, we begin by summarizing that history.

   1. The FCC's Indecency Policy, 1975–2004

      In the Communications Act of 1934, Congress established a "system of limited term broadcast licenses subject to various 'conditions' designed 'to maintain the control of the United States over all the channels of radio transmission.'"4 One of the conditions that Congress has imposed on licensees is the indecency ban in 18 U.S.C. § 1464, which prohibits "utter[ing] any obscene, indecent, or profane language by means of radio communication." Since 1992, Congress has instructed the FCC to enforce section 1464 between 6 a.m. and 10 p.m.5

      The commission first attempted to enforce the indecency ban in 1975, declaring actionably indecent a New York radio station's broadcast of George Carlin's "Seven Dirty Words" monologue at 2 p.m. on a Tuesday in October 1973.6 The monologue consisted of the comedian riffing on "words you couldn't say on the public airwaves . . . . list[ing] those words and repeat[ing] them over and over again in a variety of colloquialisms,"7 an effect Justice Lewis Powell later deemed "verbal shock treatment."8 The FCC received a complaint about the New York broadcast and ultimately issued a declaratory order that the broadcaster, which was owned by the Pacifica Foundation, " 'could have been the subject of administrative sanctions.'"9 The commission characterized the language in the monologue as "patently offensive," and—in a formulation that the commission has retained to this day—explained that the concept of "indecen[cy]" was " 'intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.'"10

      In reviewing the FCC's order, the Pacifica Court began with the observation that, "of all forms of communication . . . broadcasting . . . has received the most limited First Amendment protection."11 It then noted two considerations: First, "broadcast media have established a uniquely pervasive presence in the lives of all Americans," because "material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder."12 Second, broadcasting is "uniquely accessible to children, even those too young to read."13 In the Court's view, a broadcast of the Carlin monologue, unlike written communications, "could have enlarged a child's vocabulary in an instant."14 "The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg [v. New York, 390 U.S. 629 (1968)]," and the interest in preserving the well-being of youth and supporting parents' authority in the household, "amply justify special treatment of indecent broadcasting."15 With that minimal analysis, the Court concluded that the commission's order did not violate the First Amendment. The Court emphasized, however, the "narrowness of [its] holding," in particular that it was not addressing whether an "occasional expletive . . . would justify any sanction."16

      For almost a decade after Pacifica, the FCC "did not go beyond the narrow circumstances of [that case] and brought no indecency enforcement actions" between 1978 and 1987.17 Declining to view Pacifica as a "general prerogative to intervene in any case where words similar or identical to those in Pacifica are broadcast over a licensed radio or television station," the commission drew a line between "repetitive occurrence of the 'indecent' words" and "isolated" or "occasional" expletives.18

      In 1987, the FCC broadened its indecency standard beyond the material at issue in the Carlin monologue.19 In doing so, it relied on the "generic definition of indecency"20 from its 1975 Pacifica order— that is, material is indecent if it " 'expos[es] [] children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.'"21 In applying that context-specific standard, however, the commission "continued to note the important difference between isolated [or 'fleeting' usage] and repeated broadcasts of indecent material."22 Regarding the use of expletives, the commission stated that "deliberate and repetitive use in a patently offensive manner" would be a prerequisite to finding actionable indecency. But for speech "involving the description or depiction of sexual or excretory functions," the "mere fact" that words are "not repeated" would not compel the conclusion that the use is not indecent.23

      In 2001, the FCC issued a policy statement to provide guidance to broadcasters.24 It reaffirmed that material would only be treated as indecent if it depicted sexual or excretory organs or activities and was "patently offensive as measured by contemporary community standards for the broadcast medium."25 The FCC identified three factors to guide the analysis: (1) the "explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities"; (2) "whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities"; and (3) "whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value."26 Regarding the second factor, the commission explained that "repetition of and persistent focus on sexual or excretory material" would exacerbate the potential offensiveness of a broadcast, while material that was "passing or fleeting in nature" would weigh against a finding of indecency.27

   2. The FCC's Enforcement Action

      The litigation before the Supreme Court arose from the commission's attempt to expand its indecency policy following three incidents on broadcasts by Fox and ABC, which collectively have...