U.S. Supreme Court, April 28, 2009

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  • Supreme Court holds FCC’s indecency rulings regarding isolated utterances of profanity were not “arbitrary or capricious” and reverses Second Circuit’s decision setting aside FCC’s indecency order arising from 2002 and 2003 Billboard Music Awards broadcasts

In a 5 to 4 ruling, the U.S. Supreme Court reversed and remanded the Second Circuit’s decision relating to fleeting utterances of profanity broadcast during the 2002 and 2003 Billboard Music Awards on Fox television channels. The FCC had found that the broadcasts were “actionably indecent,” even though prior FCC policy suggested that fleeting utterances of expletives were not actionably indecent.

The Second Circuit set aside the FCC’s order as arbitrary and capricious under the Administrative Procedure Act because the FCC failed to adequately explain its change in policy towards fleeting utterances or profanity.

The Supreme Court reversed, holding that the FCC’s order was not arbitrary and capricious and that the FCC was not obligated to make clear why the original reasons for adopting the displaced rule or policy are no longer dispositive. The court explained that neither the Administrative Procedure Act nor Supreme Court precedent holds that “every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance.” According to the court, an agency may not, for example, depart from a prior policy without announcing the change, or simply disregard rules that are still on the books. An agency must show that there are good reasons for the new policy, “[b]ut it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates.”

The court also declined to rule on the First Amendment issues raised by the broadcasters because the Second Circuit did not definitively rule on the constitutionality of the FCC’s orders, and the Supreme Court is one of final review, not of first review. Justice Scalia wrote the opinion in which Justices Roberts, Kennedy, Thomas and Alito joined. Justices Breyer, Stevens, Souter and Ginsburg dissented.