FCC V. Fox Television Stations and the FCC's New Fleeting Expletive Policy

I. INTRODUCTION II. THE PACIFICA CASE AND THE FIRST AMENDMENT STATUS OF INDECENT SPEECH III. THE FCC'S NEW FLEETING EXPLETIVES POLICY IV. FOX TELEVISION STATIONS E FCC; THE SECOND CIRCUIT DECISION V. FCC v. FOX TELEVISION STATIONS: THE SUPREME COURT DECISION A. Justice Scalia's Decision for the Court B. Justice Kennedy's Concurrence C. The Dissents: Justices Stevens, Breyer, and Ginsburg. 1. Justice Stevens's Dissent 2. Justice Breyer's Dissent 3. Justice Ginsburg's Dissent D. Justice Thomas's Concurrence VI. CBS CORP. V. FCC: THE JANET JACKSON CASE VII. THE FCC's NEW FLEETING EXPLETIVE POLICY AND THE SUPREME COURT--THE FUTURE I. INTRODUCTION In the nearly forty years since the beginning of the FCC's regulation of indecency, that regulation has expanded greatly. The FCC's indecency policy had its origin in an FCC case decided in 1970. (1) That case emphasized the narrow scope of FCC indecency regulation. In FCC v. Fox Television Stations, the fleeting expletive case, the Supreme Court further extended the life of this policy. (2) A fleeting expletive refers to the broadcast of a single expletive. (3) Until recently, the broadcast of a fleeting expletive did not violate the FCC's indecent speech policy. (4) To understand fleeting expletives, some background on the concept of indecent speech is necessary. FCC indecency regulation is based on a statute, 18 U.S.C. [section] 1464, which provides that broadcasting "any obscene, indecent or profane language" is subject to fine or imprisonment. (5) Originally, this statute was enforced by the Department of Justice. (6) But enforcement of the statute has shifted to the FCC, perhaps because the Department of Justice was concerned about enforcing a statute which criminalized the use of language. In 1960, Congress gave the FCC authority to enforce 18 U.S.C. [section] 1464 pursuant to 47 U.S.C. [section] 503(b)(1), which provides that 18 U.S.C. [section] 1464 can be enforced by forfeiture or fines. (7) In recent years, some of the fines imposed by the FCC on broadcasters have been quite substantial. For example, the FCC fined CBS $550,000 for the Janet Jackson incident during the 2004 Super Bowl. (8) II. THE PACIFICA CASE AND THE FIRST AMENDMENT STATUS OF INDECENT SPEECH The FCC gave a separate definition to the word "indecent" in the statute cited in Pacifica, (9) which involved the broadcast of George Carlin's "Filthy Words" monologue. (10) Carlin was satirizing an FCC policy launched in 1970, which stated that gratuitous and repeated use of two dirty words-I leave it to you to surmise the words---constitutes a violation of the statute. (11) The FCC defined the word "indecency" in Pacifica as follows: "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." (12) The FCC ruled that Carlin's broadcast violated that standard. (13) On appeal, the U.S. Supreme Court set forth the actual facts of the case, which were quite simple. (14) The Court recounted how a father driving with his son at two o'clock on an October afternoon in 1973 turned on the radio. (15) He then heard George Carlin reciting the seven most commonly used swear words in English. (16) Carlin repeated the words over and over again. (17) In doing so, Carlin was expressing his contempt for the FCC's ban on the two dirty words by expanding it to seven dirty words. The boy's father complained to the FCC. (18) The FCC issued a declaratory order granting the complaint. (19) The FCC declared that its indecency policy had been violated and announced that the order would be associated with the broadcaster's license file. (20) The FCC warned that, if additional complaints were made concerning the broadcaster, the FCC would then decide whether to use the various sanctions set forth in the Communications Act. …