Devin S. Schindler is Associate Professor of Constitutional Law, Thomas M. Cooley School of Law and is Of-Counsel with the law firm of Warner, Norcross and Judd. He weighed in with us on the implications of the Second Circuit Court strikedown of the FCC's fleeting expletive rules. He thinks the FCC may follow Daniel Inouye's (D-HI) advice and appeal up to the Supreme Court. The presence of George W. Bush appointees John Roberts and Samuel Alito may make for an interesting battle if the FCC decides to go for it. Here is Schindler's take.
The analysis
Federal Court Strikes Down Efforts By the FCC To Muzzle Bono (and Others)
By: Devin S Schindler; Associate Professor of Constitutional Law, Thomas M Cooley School of Law; Of-Counsel, Warner, Norcross and Judd
Fleeting expletives are a reality of live television and radio. Every live show, live interview or sports broadcast carries with it the possibility that someone might let loose with a colorful phrase not fit for prime time. In 2003, NBC television discovered first hand the inherent risk of broadcasting live television during its telecast of the Golden Globe Awards. In the course of his acceptance speech, the musician Bono expressed his delight in winning an award by letting the world know that his selection was "really, really brilliant." So brilliant, in fact, that it could only be described by a word considered by the FCC to be patently "graphic and offensive" with "inherently sexual connotation(s)". Or, in context, a word that might better describe the activity that occurs from-time-to-time between rock stars like Bono and groupies.
Since 1978, the FCC traditionally did not sanction broadcasters under its statutory authority to regulate "indecent" or "profane" language for the occasional, unplanned and unscripted "fleeting expletive" aired during the course of a live broadcast. Instead, the FCC reserved sanctions to cases where, in the words of former Supreme Court Justice Powell, profanity was "repeated over and over again as a sort of verbal shock treatment."
In 2003, after numerous complaints had been received regarding NBC's Golden Globe broadcast, the FCC overruled its historic position and decided that the occasional "fleeting expletive" could be considered "indecent", and therefore sanctionable. In essence, the FCC ruled that certain words (i.e. words made famous by George Carlin) were presumptively objectionable irrespective of the fact that they were not intentionally aired by broadcasters. Recognizing that context is important, the FCC suggested that the use of an objectionable word in a newscast might still be acceptable if use of the word was "integral" to the story. In the "entertainment" context, however, the FCC encouraged broadcasters to make use of "delay technology" when broadcasting live to ensure that "fleeting expletives" were not aired.
On June 4, 2007, the United State Court for the Second Circuit invalidated the FCC's new rule, finding that the agency did not give a "reasoned explanation" for reversing its historic position that "fleeting expletives" were not sanctionable. The Court chided the FCC for its attempt to distinguish between "newsworthy" expletives that would not result in sanctions and "gratuitous" expletives (like Bono's) that would result in penalties. The Court gave as an example the FCC's decision to not sanction ABC television for airing an unedited version of the film "Saving Private Ryan", which contained numerous expletives, to support its decision that the FCC had not and could not make a reasoned distinction between "gratuitous" and "newsworthy" profanity. The court also cited President Bush's widely reported use of the word "s**t" in describing Hezbollah activities to Prime Minister Tony Blair and Vice President Chaney's suggestion (made on the floor of the Senate) that Senator Patrick Leahy perform an unnatural act upon himself as other examples of the hypocrisy of the FCC's position.
The court remanded the case back to the FCC to reconsider its decision. The 2003 order has been stayed in the interim, meaning that the historic "verbal shock treatment" rule first announced in 1978 remains the law. Despite giving the FCC a second chance to justify the rule, the court was quick to point out that it was "skeptical" whether the Commission could ever provide a reasoned explanation for the new rule that would comply with the First Amendment. Although not formally part of the ruling, the court noted that existing Supreme Court precedent strongly suggests that no rule that attempts to prohibit constitutionally protected speech can long survive.
The case is likely on its way to the Supreme Court. If the Court chooses to hear the appeal, the outcome would likely be controlled by two previous cases decided by the court that touched upon analogous situations. In the 1978 case FCC v. Pacifica Found, 438 US 726 (1978) the court upheld the so called "verbal shock treatment" rule in the context of affirming a decision by the FCC to sanction a radio station that had broadcast George Carlin's infamous "Seven Words" monologue. The Court, however, was careful in that case to emphasize the narrowness of its ruling. Judge Powell noted in a concurrence that Pacifica should not be interpreted as allowing the FCC to sanction "the isolated use of a potentially offensive word.... as distinguished from the verbal shock treatment (inherent in the Carlin monologue)." Given the important First Amendment issues at stake, Justice Powell's concurrence strongly suggests a willingness to grant broadcasters some leeway in the context of "fleeting expletives."
More recently, in the case Reno v. ACLU, 521 US 844 (1997), the Court struck down as unconstitutionally vague a similarly phrased "indecency" regulation relating to Internet communications. Although instructive, the decision in Reno did not deal with broadcast indecency. This distinction is important because the court has recognized that the use of the nation's airways is subject to greater control than open forums like the internet. Still, the fact remains that the Supreme Court has traditionally erred on the side of allowing the limited use of "indecent" words when they are not being aired solely for their "shock" value.
Having said all of this, the makeup of the court has changed dramatically since Pacifica and Reno were decided. As pointed out by Judge Leval, who filed a dissent in Fox Television, courts have also traditionally given the FCC broad discretion to make rules aimed at regulating the nation's airwaves. Judge Leval makes the point that distinguishing between "newsworthy" expletives (i.e. Vice President Cheney's' remarks) and "gratuitous" expletives recognizes the importance of context. The chances of the Supreme Court approving the FCC's new rule is greatly increased by the fact that the FCC has not created a "blanket" rule, but rather one that recognizes that there are times when the use of expletives is necessary to fully and fairly report a newsworthy story. The risk is that the newly constituted Roberts court will accord previous precedent less weight and use the very fact (i.e., the FCC's decision to not establish a blanket rule) that resulted in the rule being struck down in Fox as a basis for affirming the rule.
Any decision by the Supreme Court will likely be close. This case presents a classic confrontation between the discretion normally accorded to the FCC versus the important free speech values embodied by the First Amendment. Unless the FCC provides a stronger rationale-and more guidance-for the rule, existing precedent suggests that the Supreme Court will ultimately agree with the Second Circuit.
