"Fleeting Expletives" Are the Tip of the Iceberg: Fallout from Exposing the Arbitrary and Capricious Nature of Indecency Regulation

I. INTRODUCTION II. OVERVIEW III. FINDING INDECENT SPEECH IV. JUDICIAL REVIEW OF ARBITRARY AND CAPRICIOUS ADMINISTRATIVE AGENCY ACTIONS A. Development of the Judicial Gloss on Arbitrary and Capricious Review B. The State Farm Hard Look Standard C. The Scope of Arbitrary and Capricious Review Is Confused By Many Because It May Take Several Shapes V. FOX v. FCC: ARGUMENTS FOR AND AGAINST AN ARBITRARY AND CAPRICIOUS INDECENCY DETERMINATION 2 A. The FCC's Reasons for Moving To Regulate Fleeting Expletives B. Case Studies and the Second Circuit's Rejection of the FCC Rationales 1. Issues with Demonstrative Indecency: Literal and Non-literal Uses 2. From the Golden Globes to the Supreme Court C. The FCC's Appeal Hinges on Reasonableness, Not a Hard Look VI. CONCLUSION: THE FUTURE OF A POLICY AT RISK I. INTRODUCTION Challenging the regulation of indecent speech makes for a sexy First Amendment ease. Concerns with chilling or censoring speech draw immediate attention, overshadowing the issue of how the Federal Communications Commission (FCC) exercises its discretion when it finds certain language "indecent." In 1978, the Supreme Court in FCC v. Pacifica Foundation, Inc. held that the FCC's regulation of indecent speech did not violate the First Amendment. (1) Having the constitutional authority to regulate indecent speech, however, is distinct from identifying which actions are appropriate in the exercise of that authority. Until recently, too little attention has been given to the latter query: whether the FCC's indecency regulation is arbitrary and capricious. Regulating indecent speech requires sensitivity and discretion in evaluating the contemporary offensiveness of language; concepts of offensiveness change over time. The FCC's authority to regulate indecent speech primarily originates in 18 U.S.C. [section] 1464. (2) The FCC defines indecent speech under [section] 1464 as "material that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium." (3) This standard explicitly recognizes a focal point in the history of profanity and foul language (including indecent speech) by Geoffrey Hughes, a professor of the history of the English language. (4) Hughes identifies the weakening or loss of intensity of the force and impact of swear words over time as the dominant trend in the history of swearing. (5) A corollary to weakening is the shift in meaning from one that is sexually-charged and/or offensive to one that reflects general use. For example, about three decades after the emergence of the term "jerk" as a verb meaning "to masturbate" in the late nineteenth century, it developed into a common noun meaning "an offensive or worthless person." (6) The linguistic development of "jerk" demonstrates that over a relatively short period of time, the sexual activity described by a term can dissipate into a widely-used term with no inherent coarse, sexual meaning. The Supreme Court's review of the Second Circuit's decision in Fox v. FCC (7) presents an important issue addressing the administrative discretion exercised in the indecency regime. In 2004, the FCC announced the "fleeting expletives" policy--that the isolated use of an offensive expletive could be actionable. (8) After Fox Television Stations, Inc., CBS Broadcasting, Inc., and NBC Universal, Inc. (collectively, the Networks) challenged the fleeting expletives policy, the Second Circuit held the policy change invalid as an arbitrary and capricious abuse of agency discretion. (9) In the wake of the Supreme Court grant of certiorari in Fox v. FCC, the Third Circuit, in CBS v. FCC, found arbitrary and capricious the "fleeting images" policy the FCC articulated to sanction the February 1, 2004 exposure of Janet Jackson's breast during the Super Bowl. …