On April 28, 2009, the Supreme Court of the United States issued its decision in FCC v. Fox Television Stations, Inc. (FCC v. Fox). In a 5-4 decision authored by Justice Scalia, the Supreme Court overturned the decision of the United States Court of Appeals for the Second Circuit, which had held that the Ferderal Communications Commission (FCC) violated the Administrative Procedure Act when it implemented a policy of enforcing indecency prohibitions against radio and television stations that broadcast "fleeting expletives." The Supreme Court found, instead, that the Commission had acknowledged and sufficiently explained its departure from the agency's prior policy of refraining from issuing sanctions for broadcasts that included the isolated use of expletives. As such, the court reversed the Second Circuit's decision and remanded the matter to the Second Circuit for an assessment of whether the policy violates the First Amendment.
Several days later, the Supreme Court in a brief order vacated and remanded the Third Circuit's decision in FCC v. CBS Corporation (FCC v. CBS), which centered on the fines levied following Janet Jackson's now-infamous wardrobe malfunction during the half-time show of the Super Bowl in 2004. The Supreme Court instructed the Third Circuit to reconsider its ruling in light of the decision in FCC v. Fox.
If the Second Circuit's remand decision in FCC v. Fox or the Third Circuit's remand decision in FCC v. CBS is later reviewed by the Supreme Court on constitutional grounds, it is unclear—especially in light of Justice Souter's imminent retirement—how the Supreme Court will rule on the First Amendment issues implicated in either case. While it is conceivable that the court might overturn the FCC's "fleeting expletive" policy on constitutional grounds, or even issue a ruling that could more broadly impact the First Amendment review of broadcast regulation, it is far too early to offer any predictions regarding the eventual outcome.
Following the Supreme Court's decision, it is also unclear whether the Commission will take any immediate steps against stations that air (or have aired) isolated "fleeting expletives" or otherwise begin to clear the backlog of indecency complaints that are pending before the agency. In a statement issued after the Supreme Court announced its ruling in FCC v. Fox, Acting Chairman Copps did not signal the FCC's next move; instead, he simply described the ruling as a "big win for America's families" and explained that the decision "should reassure parents that their children can still be protected from indecent material on the nation's airwaves."
Ultimately, the FCC v. Fox ruling may be seen as a pyrrhic victory for the Commission. For now, however, television and radio stations would be prudent to vigilantly guard against the fleeting broadcast of the "F-word" or the "S-word" until the courts have completed their review of the First Amendment implications of the agency's "fleeting expletive" policy.
The FCC v. Fox decision is available here.