From One [Expletive] Policy to the Next: The FCC's Regulation of "Fleeting Expletives" and the Supreme Court's Response

I. INTRODUCTION II. THE CASE: FEDERAL COMMUNICATIONS COMMISSION V. FOX III. FOUR MODELS OF JUDICIAL DECISION MAKING A. The Legal Model B. The Attitudinal Model C. The Strategic Model D. The Historic-Institution Model IV. EXPLAINING FEDERAL COMMUNICATIONS COMMISSION K FOX IN TERMS OF THE FOUR DOMINANT MODELS OF JUDICIAL DECISION MAKING A. The Shortcomings of the Legal Model and Historic-Institutional Model 1. The Legal Model--A Beacon of Unsophistication. 2. The Historic-Institutional Model--Unrealistic and Fatally Flawed? B. Getting There? The Strategic Model as a Possible Explanation for the Outcome of Federal Communications Commission v. Fox C. Attitudinalism--The Proven Model Proves Itself Again D. Why It All Matters--Implications of the Finding that Attitudinalism Predominates Judicial Decision Making. V. JUSTICE SONIA SOTOMAYOR'S FIRST AMENDMENT RECORD ON THE COURT OF APPEALS AND OTHER SIGNS OF HER ATTITUDE TOWARD THE FIRST AMENDMENT A. Sotomayor's Judicial Record on First Amendment Issues B. Additional Indications of Sotomayor's View of the First Amendment C. The Remaining Justices' Attitudes on the Fleeting Expletives Issue VI. CONCLUSION: THE FUTURE OF FLEETING EXPLETIVES BASED ON THE CURRENT COMPOSITION OF THE COURT I. INTRODUCTION "[T]his is really, really fucking brilliant. Really, really great," exclaimed U2 front man Bono during his acceptance speech for "Best Original Song" at the 2003 Golden Globe Awards, resulting in a deluge of complaints to the FCC. (1) In response, the FCC's Enforcement Bureau issued a Memorandum Opinion and Order finding that "[t]he word 'fucking' may be crude and offensive, but, in the context presented here, [it] did not describe sexual or excretory organs or activities." (2) The bureau further mentioned, "when offensive language is used as an adjective to emphasize an exclamation ... or it is used as an insult ..., then it falls beyond the scope of the indecency regime." (3) Upset with the decision, a group of people affiliated with the Parents Television Council (PTC) pressured the FCC until the agency finally agreed to revisit the bureau's prior decision. (4) In a Memorandum Opinion and Order released on March 18, 2004, the FCC departed from its prior position and promulgated a new policy concerning the fleeting--or nondeliberate, nonrepetitive, and otherwise isolated--use of expletives on public airwaves. (5) Although the Order indicated that it would be inappropriate to punish NBC in this case since the network did not have adequate notice of the new policy, the FCC was clear that the fleeting or incidental use of expletives would be subject to punishment in the future. (6) As a result, a number of broadcast networks sought legal reprieve in the Second Circuit, arguing that the new policy was both arbitrary and capricious under the Administrative Procedure Act (APA) and unconstitutional under the First Amendment. (7) In an opinion by Judge Rosemary S. Pooler, writing on behalf of a three-judge panel, the Second Circuit agreed that the new policy was arbitrary and capricious, but opted to bypass the constitutional question for the time being. (8) The FCC subsequently petitioned the Supreme Court for review, and on March 17, 2008, the Supreme Court granted certiorari. (9) In a somewhat surprising opinion authored by Justice Scalia, the Supreme Court reversed the decision of the Second Circuit. Like the Second Circuit, however, the Supreme Court did not address the First Amendment issue underlying the FCC's policy, and instead based its decision on the premise that the policy was "entirely rational" and therefore neither arbitrary nor capricious. (10) Despite the Court's opinion, the controversy surrounding the use and regulation of expletives on the public airwaves was not dead. …