Federal Judiciary

Court partly upholds “dirty words” ban

By Akin Gump Supreme Court Practice Group

UPDATED 11:09 a.m.

Splitting 5-4, the Supreme Court on Tuesday upheld the government’s power under existing law to ban the use on radio and TV of even a single four-letter word that is considered indecent — but left open the question of whether the ban might violate the First Amendment, at least in some situations.  The Court, in an opinion by Justice Antonin Scalia, said the Federal Communications Commission’s switch in policy to ban even a fleeting use of such a word was “entirely rational” under the law that governs federal administrative powers.  The ruling came in FCC v. Fox Television Stations, et al. (07-582).

The opinion referred to the banned words as the “F-word” and the “S-word” but not go on to fill out their actual spelling.  Justice Scalia also did not spell them out in his oral announcement of the decision.

His written opinion, in a case dealing with uses of those four-letter words during performance awards broadcasts involving celebrities, took a swipe at “foul-mouthed glitteratae from Hollywood.”

Basically, the ruling simply means that the FCC provided a sufficient explanation of why it switched from a more relaxed policy on “dirty words” to a near-total ban on “fleeting expletives.” The ban applies on radio and TV from 6 a.m. to 10 p.m. only.

The main opinion stressed that it was dealing only with the question of whether the flat ban was “arbitrary and capricious” as a matter of law.  The Court said it did not violate that standard, but that is as far as the ruling went.

The Second Circuit Court, when the case returns there, will have a chance to pass upon broadcasters’ constitutional challenges to the ban. The lower court did not do so on the first review, but strongly hinted then that the ban would not survive a direct First Amendment challenge.

Broadcasters asked the Supreme Court to go ahead and decide that issue.  Bypassing it for now, Justice Scalia wrote that the Court is “one of final review, not of first view….It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution.  Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case….We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion.”

Justice Ruth Bader Ginsburg, in a dissenting opinion, said “there is no way to hide the long shadow the First Amendment casts over what the Commission has done.  Today’s decision does nothing to diminish that shadow.”

And Justice Clarence Thomas, in a concurring opinion, said he would be open to reconsidering the Court’s two main precedents that allow the government to treat radio and TV differently for purposes of the First Amendment’s protection.  He referred to the 1969 ruling in Red Lion Broadcasting v. FCC and the 1978 decision in FCC v. Pacifica Foundation.

“Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity,” Thomas wrote.  The rulings, he said, had made a “deep intrusion into the First Amendment rights of broadcasters.”  In this case, Thomas agreed with the Scalia opinion that the FCC had adequately explained its switch in policy — an issue not involving a constitutional dimension.

The Scalia opinion was joined in full by Chief Justice John G. Roberts, Jr., and Justices Thomas and Samuel A. Alito, Jr.   Justice Anthony M. Kennedy joined most of the Scalia opinion, and endorsed the result — overturning the Second Circuit ruling nullifying the FCC’s changed policy on “fleeting expletives.”

Justice Stephen G. Breyer wrote the main dissenting opinion, joined by Justices Ginsburg, David H. Souter and John Paul Stevens.  Ginsburg and Stevens wrote separating dissenting opinions speaking for themselves.

Full post as published by SCOTUSBLOG on April 28, 2009 (boomark / email).