A Federal Appeals Court Strikes Down the FCC's "Fleeting Expletives" Policy on Administrative Law Grounds: Was It Right to Do So?

Earlier this month, a three-judge panel of the U.S. Court of Appeals for the Second Circuit voted, 2-1, to strike down the policy of the Federal Communications Commission (FCC) sanctioning "fleeting expletives" - that is, expletives used in a quick and isolated way in the course of a television or radio program.

Interestingly, the dissenter, Judge Pierre Leval, is thought to be one of the Second Circuit's leading lights when it comes to free speech and intellectual property matters - making the split decision an especially significant one.

In this column, I'll both discuss the majority's ruling, and explain why I believe Judge Leval dissented.

Chipping Away at the First Amendment: The FCC's Authority To Regulate "Indecent" Speech

The First Amendment is extremely clear that "Congress shall make no law abridging the freedom of speech." Unfortunately, however, the Supreme Court has allowed various federal and state regulations to muddy this crystal-clear command.

First, the Supreme Court unwisely allowed censorship of "obscene" speech, as I discussed in a prior column. Later, the Court trespassed on the First Amendment even further by accepting, in FCC v. Pacifica, the doctrine of "indecent" speech -- speech which concededly falls short of being obscene, yet still, according to the Court, can somehow be constitutionally censored.

The FCC's justifications for regulating "indecent" speech have always rung hollow and have always seemed impervious to technological change, in two key ways:

First, the FCC has continued to successfully cite the risk that children might be exposed to such speech. Yet the Supreme Court has held in other contexts - for example, when considering Internet censorship in Reno v. ACLU - that the First Amendment prevents the government from insisting that adults' speech be watered down to that which is fit for children, whenever children might be exposed to it. And while technology (such as the V-chip) that allows parents to limit what their children watch on TV has not proved very popular, what matters, from a First Amendment perspective, is not its popularity, but the fact that it remains a usable option for concerned parents: No children need be a "captive audience" to shows to which parents object.

Second, the FCC has continued to insist that broadcasting licenses carry with them special responsibilities, even though the initial basis for this claim - media scarcity - has been decimated. Any claim of media scarcity, in this age of fast-blossoming media, is absurd, yet the Supreme Court has yet to put the last nail in the coffin of this archaic claim, and thus the FCC continues to claim that broadcasting somehow remains a special public trust to be exercised cautiously and within limits set by the government.

It is perhaps this trail of absurdities that motivated the Second Circuit panel majority to finally say, "Enough is enough" and reject as simply irrational the FCC's change of heart regarding fleeting expletives.

The Basis for this Case: The FCC's Change of Policy on "Fleeting Expletives"

Originally, the FCC's policy on "fleeting expletives" had been to decline to sanction networks if the expletive at issue was employed at a live event, on the ground that there had been no opportunity for "journalistic editing."

Also, the FCC made clear that an "isolated use" of expletives - as opposed to "verbal shock treatment" -- would not lead to sanctions. It was "deliberate and repetitive use" of expletives to which the FCC objected -- or, put another way, material that "dwells on or repeats at length" the expletives used, rather than using them in "fleeting and "isolated" ways.

In 2003, however, that policy changed dramatically. As I discussed in a previous column, the FCC initially declined to penalize one particular fleeting expletives - used by the rock star Bono, who deemed his Golden Globe award "really, really fucking brilliant." The agency reasoned sensibly that Bono hadn't meant to connote anything sexual by his remark; it was simply being using to convey his strong feelings of joy.

However, in time, the FCC reversed itself. It deemed any use of the word "fucking" to inherently have a sexual connotation, and put broadcasters on notice that they could be penalized even if that word were used only fleetingly. (It did not, however, penalize Bono's use of the word, since the broadcaster was not yet, at that point, on notice of the change in policy.)

Broadcasters immediately challenged the policy. Rather than timely resolving their petitions, the FCC let them linger unresolved. Meanwhile, it made clear its position that the new policy applied to two more celebrity uses of the word "fucking" or "fuck" in non-sexual contexts. In one, Cher said "fuck 'em" to her past detractors at the 2002 Billboard Music awards. In the other, which occurred at the same event in 2003, Nicole Richie complained that it was "not so fucking simple" to "get cowshit out of a Prada purse."

Neither of these two occurrences was penalized - for, once again, the broadcasters had not yet been on notice of the new policy. However, the FCC made it very clear that in the future, similar uses of fleeting expletives would be subject to sanctions.

The FCC's Policy is Easy to Criticize, But Is It Outright Irrational?

It is easy to criticize the FCC's fleeting expletives policy as silly, ridiculous, absurd, and utterly antithetical to the First Amendment. But is the policy truly irrational?

That was the question that the Second Circuit had to confront, and the question that ultimately divided the panel, and forced Judge Leval to dissent.

In striking down the policy, the majority of the Second Circuit panel invoked not the First Amendment, but the Administrative Procedures Act (APA) - and therefore declined to resolve a series of other arguments, including First Amendment arguments, that the broadcasters had also made. Rather than get into any larger thicket, the majority simply held that because the FCC had failed to "articulate a reasoned basis for this change in policy," the new policy violated the APA's prohibition on "arbitrary and capricious" agency behavior.

(In opting to resolve the APA issue first, the majority followed a well-known doctrine, rooted in the Supreme Court's decision in Ashwander v. Tennessee Value Authority, that holds that courts should avoid reaching constitutional questions if a case can be resolved on other grounds. But this doctrine seems weakest in the First Amendment context, where the concern for "chilling" speech often compels courts to reach constitutional questions early and not later.)

The majority's reasoning depended in part on internal contradictions within the FCC policy: Why permit the use of an expletive in a live news interview (even though it could be bleeped using a time-delay), yet forbid it at a live awards show? Why allow the repeated expletives in "Saving Private Ryan" to be aired, yet target fleeting expletives in other contexts? In all these instances, the court noted, the risk that children might be exposed to expletives existed - yet in only some of them, would the FCC have put sanctions upon the use of the expletives.

The majority also found dubious the FCC's claim that it would often be hard to tell if the expletive "fucking" was being used figuratively, or used literally, to refer to the sexual act. The majority rightly gave short shrift to this supposed confusion - declaring it contrary to "any commonsense understanding of these words."

Moreover, the majority found no persuasive reason for the FCC's decision to change policy now, after so many years, and with no clear inciting circumstance. Indeed, it decried the total lack of any evidence from the FCC that the use of fleeting expletives caused any harm at all.

This is a very compelling point, in my mind, as it is the rare child who isn't exposed early on to these expletives in a schoolyard or mall, or when a parent stubs a toe or curses at a bad driver. What extra harm is the occasional use of the same expletive on television supposed to create? The FCC has never offered a persuasive answer - or, indeed, any persuasive evidence that expletives are harmful to children in the first place.

The Basis for Judge Leval's Dissent

At first, Judge Leval's decision to dissent from the majority's analysis would seem surprising, given his strong support of copyright protection for creative work. Clearly, this is not a judge on whom the nuances of creative work are lost, or one who undervalues such work.

So why did Judge Leval dissent? In sum, because he believed an even more important principle was at issue in the case: the principle of separation of powers.

Judge Leval clearly felt his colleagues had gone too far in deeming the FCC's change of policy to be "arbitrary and capricious" under the APA. "What we have here is at most a difference of opinion between a court and an agency," he wrote. And he emphasized that a court's mandate, under the APA, is to ensure that an agency gives reasons for its decisions that make minimal sense - not necessarily reasons the court finds especially persuasive or convincing.

After all, if courts' review of agency actions is too searching, they may impede the mandates Congress has created the agencies to serve - and thus impede the function of a coordinate branch of government.

Perhaps Judge Leval also felt that since the broadcasters would ultimately prevail on the First Amendment issues they had raised, it was unnecessary for the panel to so aggressively interpret the APA. After all, a lot of the irrationality of the FCC's stance comes from the tortured logic by which the Supreme Court has unconvincingly defended indecency doctrine, over the years.

The cleaner outcome here, then, would be for the Court to junk the indecency doctrine, recognizing that it is founded on two extremely unstable supports: supposed media scarcity, and the supposed necessity to protect children from hearing the same words on television that they hear at school, at the mall and at the playground.

Did the Panel Majority Truly Threaten the Separation of Powers?

In the end, was the panel majority's review here truly too searching - exceeding a court's proper role? I believe the answer is no. Judge Leval, in his dissent, did a much better job of defending the FCC policy than the FCC itself had - but still, in my view, not a sufficient one.

For example, with respect to the "Why now?" question, Judge Level noted some reasons why the FCC could have rationally feared that it would face a flood of fleeting expletives if it did not change its policy to crack down on them: Increasingly casual use of expletives in daily conversation, and the increased pressure for networks to compete with unregulated cable channels, where there are no formal limits on the use of expletives (though self-censorship is often employed.).

The problem, though, is that while these recent phenomena might narrowly support a change in the fleeting expletive policy, they broadly take the wind out of the entire indecency policy of which it is a part. As noted above, the more frequently children hear expletives in daily conversation, the more senseless the FCC policy of supposedly protecting them. Moreover, the more frequently expletives are used on cable channels, the more likely it is that parents who subscribe to cable will employ the V-chip to control their children's access to television overall.

Once again exhibiting far better lawyering than the FCC, Judge Leval also tries to justify the FCC's suggestion that the sexual nature of words like "fuck" and "fucking" is inherent, no matter in what context they are used. He points out that even if the speaker does not intend to use these words in a sexual way, some in the community will nevertheless "understand the word as freighted with an offensive sexual connotation."

Fair enough - but First Amendment doctrine has always eschewed the idea of a "listener's veto," or, indeed, any idea that speech can be censored because some find it offensive. Putting obscenity to one side, under the Supreme Court's precedent, speech can be censored only because it is dangerous (for instance, directly inciting violence, or increasing prostitution and other crimes in a red-light district), not because it is offensive. Indeed, nothing could be more antithetical to free speech than a "listeners' veto," which would ensure a society in which everyone preaches to his or her converted, no one hears anything contrary to his or her views, and no mind ever dares to change on any issue. Thus, once again, Judge Leval shores up the FCC policy only to threaten the First Amendment.

The bottom line is this: The FCC's indecency policing violates the First Amendment. The Second Circuit panel cut this power off at the knees, by rejecting the fleeting expletive policy as irrational. But what the doctrine truly deserves is a stake through the heart. The stake has so far been ineffective, but with both V-chip technology and massive media choice, it has sharpened substantially.