WASHINGTON, D.C. -- In an opinion that ignored the constitutionality of restrictions on "indecent speech," the U.S. Supreme Court today found that the Federal Communications Commission (FCC) was acting within its proper powers under the Administrative Procedures Act (APA) in deciding that the various utterances of "fuck" and "shit" on broadcast television were "actionably indecent," and that the FCC's actions thereafter were neither "arbitrary" nor "capricious."
The case was Federal Communications Commission v. Fox Broadcasting, an appeal from a ruling by the Second Circuit U.S. Court of Appeals which found that the FCC had violated its own procedures in having fined some broadcasters for airing indecent speech or images and not others. In so doing, the Second Circuit avoided the constitutional question of whether indecent speech is protected by the First Amendment, and it was on that void that the Supreme Court based its decision.
"The agency's reasons for expanding its enforcement activity, moreover, were entirely rational," Justice Antonin Scalia wrote for the majority. "Even when used as an expletive, the F-Word's power to insult and offend derives from its sexual meaning. And the decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with [FCC v.] Pacifica's context-based approach. Because the FCC's prior safe-harbor-for-single-words approach would likely lead to more widespread use, and in light of technological advances reducing the costs of bleeping offending words, it was rational for the agency to step away from its old regime."
As might be expected, Scalia was joined in most of his opinions four parts by Chief Justice John Roberts and Associate Justices Samuel Alito, Anthony Kennedy and Clarence Thomas, though Kennedy did not join in Part III-E of the main opinion. Associate Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen Breyer each wrote dissenting opinions, and Stevens, Ginsburg and David Souter joined in Breyer's dissent.
Check back later for a more complete evaluation of this landmark decision.
