When Does F*** Not Mean F***?: FCC v. Fox Television Stations and a Call for Protecting Emotive Speech

I. INTRODUCTION II. FEDERAL COMMUNICATIONS COMMISSION V. FOX TELEVISION STATIONS, INC III. ANTECEDENTS TO FOX TELEVISION STATIONS A. Cohen and Emotive Speech B. Pacifica and "Words You Never Say" IV. CHAPLINSKY, COHEN AND BEYOND V. WHEN DOES F*** NOT MEAN F***? VI. THE F-WORD--THE NEXT ROUND VII. AN EMOTIVE SPEECH DOCTRINE? VIII. BROADCAST MEDIA AND THE FIRST AMENDMENT IX. CONCLUSION I. INTRODUCTION Almost since the beginning or its First Amendment jurisprudence, the Supreme Court of the United States has had a love-hate relationship with words. Some words, the Court said early in its free-speech history, are undeserving of First Amendment protection because, in balance, they harm society or do not contribute to the search for truth. (1) The very utterance of such words would "inflict injury or tend to incite an immediate breach of the peace." (2) Other words deserve extra protection because they are "the essence of self-government." (3) These words constitute "speech that matters." (4) For the most part, the Court has been able to delineate a structure to this "hierarchy of First Amendment values," (5) but whether the application of the First Amendment to that structure has been effective is another question. One critic noted, for example, that the Court's use of the theory that "not all speech is of equal First Amendment importance" (6) "has been marked by vacillation and uncertainty." (7) Clearly, the Court's dealings with nontraditional language and conduct can be so categorized. Whether the issue is the discussion of words that cannot be uttered over the airwaves, (8) nude dancers in Pennsylvania, (9) or award-winning musicians uttering profanities on television, (10) the Court has seemingly become befuddled when confronted with expression that is indecent or simply out of the ordinary. (11) The Court's confrontation with such slippery topics continued in the 2008-2009 term with FCC v. Fox Television Stations, Inc., (12) a case involving one of the Court's biggest bugaboos--the use of the so-called "f-word." (13) The case did not turn on the use of the offensive word, however, but on the more mundane question of whether the FCC met the requirements of the Administrative Procedure Act ("APA") (14) when it changed its policies relating to the broadcast of indecent language. While federal law prohibits the use of obscene, profane, or indecent language over the airwaves, (15) the FCC, with the blessings of the Court, (16) established that fleeting expletives did not meet the definition of indecency, whereas repetitive use of such words did. (17) When, in 2004, the FCC changed its policy and later took actions against broadcasters for on-air fleeting expletives, (18) it was required by the APA to ensure that such changes and resulting rulemaking were not arbitrary and capricious. (19) Whether the FCC met that requirement was the question in Fox Television Stations. It is clear, however, that language was the undercurrent of the opinion. Only Justices Clarence Thomas (20) and Stephen Breyer (21) did not specifically address the use of the f-word. Each of the other Justices at least confronted it, and the use of the word was key to the majority opinion by Justice Antonin Scalia (22) and the dissent of Justice John Paul Stevens. (23) Justices Scalia and Stevens were clearly at odds over both the use and definitions of the word, elements that might play a significant role in the constitutional questions that were avoided in Fox Television Stations (24) but are now at issue. (25) A panel of the Second Circuit Court of Appeals held in July 2010 that the FCC's indecency policy was unconstitutionally vague because it created "a chilling effect that goes far beyond the fleeting expletives at issue here." (26) In a bruising attack on the policy, the Second Circuit reported that broadcasters "simply want to know with some degree of certainty what the policy is so that they can comply with it. …