F*ck it: FCC v. Fox Television (2009)

This week wraps up my last week in my first semester of my Master’s program. That means I have a final project due. My current class is Legal Issues in Public Administration (and no, I couldn’t just say, “Uh, I have a JD, can I go home?”).

The final project is to write a “Case Study News Blog” on a predetermined case, as if we were reporting on it right after the Supreme Court issued its ruling. So I figured, since I actually have a blog, why not take a twist on the project and share what I’m thinking about and studying with you all.* I think about policy, our systems, and government a lot. To the point where a lover recently laughed at me as I was talking about federalism and the states’ duty to experiment post coitus. (Apparently people have different opinions on what constitutes appropriate pillow talk.) So I figured, why not share my thoughts in a slightly more appropriate place.

Reminder of the Basics

We are all familiar with the three branches of government (I hope): Executive, Legislative, and Judicial. They each have their own powers and their own duties according to the US Constitution: our legislative branch, creates laws; executive branch enforces the laws, and the judiciary interprets the laws and resolves other controversies.

But what about all these “administrative agencies” we know and love, such as the Environmental Protection Agency, the Federal Communications Commission, the Center for Disease and Control and Prevention (which we now all know way more about than we ever wanted to), etc. These agencies—sometimes referred to as the allusive “fourth branch” of government—have aspects of each of the three other branches. The agencies create rules that interpret the laws Congress passes (legislative), they enforce the statutes and regulations through fines and licensing (executive), and they have hearings on a variety of topics depending on the agency (judicial). Technically the agencies are “housed” in the executive branch, but their power tends to extend beyond mere enforcement, and they implicate and touch every aspect of our daily lives.

FCC v. Fox Television

As my case study, I chose FCC v. Fox Television, 556 U.S. 502 (2009).** At issue in this 5-4 decision was the Federal Communications Commission’s explanation of the change in its 25-year-old policy banning “indecent” language on the airwaves.

So let’s back up to understand a little about how agencies work using this case as an example: In 1934, Congress passed the Communications Act of 1934 (we are super creative with naming some statutes), which established the Federal Communication Commission (the “FCC”) to, among other things, issue limited-term broadcast licenses. In exchange for the access to the airwaves, the licensee was subjected to certain conditions. One such condition was the “indecency ban.” Congress prohibited “utter[ing] any obscene, indecent, or profane language” between the hours of 6 a.m. and 10 p.m. 18 U.S.C. § 1464. (For those of you that know me, know that I would be fucked if I couldn’t use profane language between those hours.)

But what is “obscene, indecent, or profane language” you ask? Great question! Congress has fucking no clue, so they let the FCC wrestle with that question. This is one of the benefits of delegating to an agency. Congress gets to say to its constituents: Look! We did a thing! Isn’t it great?! And the agency is left to figure out exactly how to implement and enforce what Congress enacted. And if Congress doesn’t like what the agency eventually did with “their” law? They can blame it on the “overreaching” government bureaucrats. Brilliant!

George Carlin, Baby!

In 1975, thanks to the brilliance of George Carlin and a TV station’s decision to broad cast his “Filthy Words” monologue during the day, the FCC got its first chance to test out the statutory ban. In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court upheld the FCC’s decision to prohibit “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.” And because the FCC is a government entity regulating speech, there is a First Amendment overlay. The Court held that “the First Amendment allowed Carlin’s monologue to be banned in light of the ‘uniquely pervasive presence’ of the medium and the fact that broadcast programming is ‘uniquely accessible to children.”

Specifically, the Supreme Court felt comfortable banning Carlin’s monologue despite the Free Speech concerns because it wasn’t that Carlin just said one bad word. He said them all. A lot. Repeatedly. For about seven minutes. (You should watch it, it’s a work of art.)

Following the Supreme Court’s lead, for the following twenty years, the FCC banned “deliberate, repetitive” use of profane words, and did not fine or punish companies for “fleeting expletives.”

Bono Blew It

So what happened? Bono. Bono happened. At the 2004 Golden Globes, Bono said “[T]his is really, really, fucking brilliant.” The FCC received complaints and, for the first time, said that Bono’s f-bomb fell within the FCC’s indecency definition, explaining that the “F-Word ‘is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language.”

Even though the Bono F-Bomb Bonanza occurred in 2004, FCC v. Fox Television was about indecency instances that happened in 2002 and 2003. At the 2002 Billboard Music Awards, Cher said, “I’ve also had critics for the last 40 years saying that I was on my out every year. Right. So fuck ‘em.” (YES! You go, girl!) Then at the 2003 awards, Nicole Richie and Paris Hilton (remember them?) were promoting their show “The Simple Life,” to which Nicole asked the audience, “Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”**

Okay. So we have a couple “fleeting expletives”—that is, nonliteral uses of the profane words (my favorite variety)—during award shows that seem very different than Carlin’s “Filthy Words” seven-minute-swearing fest. Nonetheless, the FCC was offended, and issued “Notices of Apparent Liability” to Fox and the lawyers got in the ring.

Procedure??

This is the sort of case that at first glance seems FUN! and SEXY! because it has all the swear words and it must be about the First Amendment, right? Nope. At issue in this case was whether the FCC followed the correct procedure and explained itself sufficiently to allow it to change its mind on how to define “indecency.”

So while this may not seem as “sexy” as a First Amendment case (and yes, those are sexy), this is a big deal. Congress passed the initial law banning “indecent” language in 1934. The FCC first flexed its muscle to interpret that word in 1974, and then in 2002 decided to change its mind. According to the Constitution, Congress has the authority to pass laws. Not only that, it has to be both houses of Congress, that are made up of representatives and senators that are elected by the people. That’s who gets to pass laws.

But here, we have an agency—part of the executive branch!—changing the reach of a law. HOW IS THAT POSSIBLE??

This is possible through the magic of the Administrative Procedure Act (the “APA”). In the APA, Congress granted agencies the authority to interpret statutes, take action, and make findings. They can do all the things! And, as relevant to this case, the court is granted limited power to review such agency decisions, and can only set aside the agency action if such a decision was “arbitrary” or “capricious.”

So the only question the Court was addressing here was whether the FCC’s decision to change its interpretation was “arbitrary” or “capricious.”****

Justice Scalia, writing for the majority, explained that the APA did not require the agency to do anything differently when it changes its mind than it does when it initially makes the decision. The agency only had to explain why it was doing what it was doing, with enough information that the court could determine whether the decision was arbitrary or capricious. The fact that the agency must explain its decision in the first place inevitably means the agency needs to acknowledge that it’s changing its mind. The Court found that the reasons given by the FCC for making the change—finding that even if the word is only said once it has the power “to insult and offend” and that technology now existed to “bleep” out the offending word—were sufficient.

Whether the Court ultimately agreed with the FCC’s determination didn’t matter. All that mattered was that the FCC gave enough reasoning that the decision was not “arbitrary” or “capricious,” and the FCC met that standard here.

What’s the Big Fucking Deal?

So here is what we are left with: Congress passes a law in 1934. The FCC interprets that law one way in 1974. The FCC interprets that same law a different way in 2003. Congress hasn’t done a damn in those intervening years, but the agency—in the executive branch—decided to change the meaning of the statute.

I’m not saying this is right or wrong. I’m just saying we should be aware of it, think about it, be curious about whether there is another way to do it. How do we feel about unelected agency heads changing the meanings of laws that effect us all? Do we care that George Carlin was once the gold-standard of indecency, and now it’s Cher? Do we know who is making these decisions? How these people are chosen? How long they hold their jobs for?

So much attention has been focused on the United States Supreme Court and that process—and with good reason, it matters. But there are other decisions being made every day that effect our day to day life. And they are not broadcast on TV. (Okay, these were, but you get what I mean.) But there are opportunities to learn, to comment, to try and make an impact.

This is our government. Its power comes from the “the people,” which is us. Just because it’s always been done this way, doesn’t mean it has to continue to be this way. And maybe, after careful examination, we determine this is how we want our government to run. Great. But let’s be aware, thoughtful, and intentional about it, and not just say, fuck it, and assume there is nothing to be done.

_______________________

* You’re welcome. (And Professor—I hope this is okay…)

** The reason I chose this case was because it was going to be in the last week of the unit, when I knew I wasn’t going to be working. So no grand plan here. Just time and energy management (and somehow, I am still managing to turn this assignment in late… So… so much for that brilliant idea).

*** This is what we now refer to as “first-world-problems.”

**** Don’t worry, three years later the Supreme Court found the same decision unconstitutional. Spoiler alert: Unconstitutional under the Due Process Clause, not the First Amendment! But that’s a topic for another day.