On June 4, 2007, a three-judge panel of the U.S. Court of Appeals for the Second Circuit vacated the Federal Communications Commission's recent "fleeting expletive" policy in a 2-1 decision. The grounds for the panel's decision were narrow and its scope limited to the Commission's decision to subject even fleeting broadcasts of expletives to potential liability. Thus, although the Fox ruling may provide some immediate relief to broadcasters, the decision does not appear to have significantly changed the indecency landscape. Accordingly, broadcasters should continue to proceed with caution, screen for the errant expletive, and await further judicial review of the FCC's indecency regime.

At this point, the Commission has several procedural options. The agency could press the court case further by moving for reconsideration of the panel's decision, seeking a rehearing by the full Second Circuit, en banc, or appealing the decision directly to the Supreme Court. Alternatively, the FCC could initiate remand proceedings to augment the record supporting its new "fleeting expletive" policy. The Commission could also seek additional congressional authority for its indecency regime. Finally, it could accept the decision and revert to its more lenient former policy.

Background

Title 18 of the United States Code prohibits the broadcast of obscene, indecent or profane material, and the FCC has established regulations that prohibit the broadcast of obscene material and limit broadcasters' ability to air indecent or profane content to the "safe harbor" hours between 10 p.m. and 6 a.m. Although it has traditionally taken a restrained approach to the regulation of indecent broadcasts and afforded broadcasters the benefit of the doubt when it came to slips of the tongue or other fleeting expletives, the FCC's practice changed in the wake of Janet Jackson's momentous wardrobe malfunction.

As a result, in its November 8, 2006, Order, the FCC found that even isolated utterances of the "F-" and "S-words" would be scrutinized under the agency's indecency regulations. On appeal, a panel of the Second Circuit disagreed.

The FCC's "Fleeting" Policy

The majority focused its decision on a single narrow issue: whether the FCC's implementation of the new "fleeting expletive" policy comported with the Administrative Procedure Act (the "APA"). Although the court acknowledged and commented on the other procedural, statutory and constitutional arguments made by Fox, NBC and CBS (the "Networks"), the decision relies on a single legal finding: that the Commission failed to provide a "reasoned basis" for the sharp departure from its well-established policy of permitting the inadvertent broadcast of "isolated, non-literal, fleeting expletives."

The Commission advanced several arguments in support of its new "fleeting expletive" policy, but the majority of the Second Circuit panel found each argument lacking. For example, in attempting to resonate with the Supreme Court's Pacifica decision, the FCC focused on the "uniquely pervasive" nature of the broadcast media and argued that an automatic exemption for passing expletives would unfairly subject broadcast audiences to the harsh "first blows" of indecent programming. The Second Circuit quickly dispatched the Commission's application of the "first blow" theory, noting that the argument failed to explain why, after 30 years, the agency changed its position. The majority also observed that the "first blow" argument could not be reconciled with the FCC's treatment of indecent words in all broadcast contexts. Thus, the majority held that the Commission's policy was arbitrary and capricious in that it was based on something other than a concern with the public's "mere exposure" to dirty words.

The Commission also attempted to justify its policy on the grounds that non-literal use of certain words as expletives is frequently grammatically indistinguishable from a literal description of a sexual or excretory function. On this point, the Second Circuit noted that the Commission's argument "defie[d] any common sense" understanding of the words at issue. To counter the Commission's recent pronouncement that the "F-" and "S-words" are always sexual or excretory in nature, the Second Circuit cited three examples where the use of these words could not reasonably conjure sexual or excretory organs or functions. The court cited as specific examples President Bush's use of the "S-word" in an aside to British Prime Minister Tony Blair, and Vice President Cheney's use of the "F-word" on the Senate floor.

The majority also rejected out of hand the FCC's prediction that an exemption for fleeting expletives would allow broadcasters to "air expletives at all hours of the day," and it found that it could not square the new approach with the Commission's regulatory framework for broadcast indecency. On this latter point, the majority expressed its skepticism over the agency's failure to explain why, in the absence of any change to the general indecency framework, that which was permitted in 2000 became actionable in 2003.

The majority was even less forgiving of the Commission's decision to enlarge the definition of profanity. After noting that the Commission had not attempted to regulate profanity (as opposed to indecency) before 2004, the court highlighted several occasions on which the Commission took the position that regulation of profane speech was protected by the First Amendment because such speech did not fit squarely within the categories of indecency or obscenity. Moreover, the court went on to note that the term "profane" has traditionally been used by courts and the Commission to describe the irreligiousness or sacrilege. In addition to rendering "profanity" inapplicable to the cases under review, the term's religious connotations would seem to bolster the First Amendment protections afforded to profane speech.

A Preview of Coming Attractions?

Although its ruling was limited to the question of the Commission's compliance with the APA, the court nevertheless addressed the Networks' constitutional arguments in lengthy dicta (non-binding commentary). Although the second half of the Fox decision is not integral to the panel's ruling that the Commission failed to comply with the APA, the court's comments could play a role in subsequent judicial review of the Commission's regulation of broadcast indecency.

In commenting on the Networks' constitutional challenges, the majority expressed its doubts that even a properly implemented "fleeting expletive" policy could survive First Amendment scrutiny. This, in turn, provided the panel with a reason to survey the Commission's entire framework for regulating broadcast indecency, which the majority suggested was constitutionally infirm.

The Dissent

In his dissent, Judge Leval took the position that the Commission complied with the APA in establishing its new "fleeting expletive" policy but specifically declined to comment on the constitutional issues that the majority addressed in dicta. After reciting the standards for reviewing an agency's actions under the APA, Judge Leval stated his disagreement with the majority views on the inconsistencies resulting from the FCC's new "fleeting expletive" policy, the Commission's predictions of the effects of continuing to permit the broadcast of "fleeting expletives," and the Commission's belief that the "F-word" cannot be severed from its sexual connotations.

It would be a mistake, however, to view the dissent as wholly supportive of the FCC's policy. In a concluding footnote, Judge Leval explained that he did not find it necessary to consider the application of the Commission's policy to the "S-word." In the text that follows, he revealed two reasons why he may not agree with the Commission's policy within this context. First, Judge Leval questioned whether the Commission's child-protective indecency policies should be applied to excrement, which Judge Leval sees as "a main preoccupation of [a child's] early years." Next, he observed that the agency's policies may reflect a greater concern for good manners than one for the well-being of children. To illustrate this point, Judge Leval referred to the current regulatory treatment of excrement: use of the "S-word" triggers an indecency analysis, but stations are free to broadcast "crap."

The Reactions

Within 24 hours of the Fox ruling, two Commissioners published written reactions to the Second Circuit's decision. Commissioner Copps, in a brief statement, expressed his disappointment at the decision and cautioned broadcasters not to view it as a "green light to send more gratuitous sex and violence into our homes."

Chairman Martin offered a lengthier reaction in which he "[c]ompletely disagree[d]" with the court's decision and suggested that the panel's judges, not the Commissioners, were the ones "divorced from reality." The Chairman then proffered an expansion of consumer choice in cable access as a potential solution that would allow viewers to avoid broadcast indecency, while simultaneously enabling the Commission to avoid a First Amendment challenge.