Topic: The First Amendment and the FCC
MMC 5206 Assignment on Nov. 14th
Jing Jin
1
The First Amendment and the FCC
I Background
The FCC, known as the Federal Communications Commission is an independent U.S.
government agency formed in 1934 overseen by Congress. The commission is committed to act
as an effective agency to regulate interstate and international communications all across the U.S.1
Thus the main job for the FCC is to “regulate.” However, as the First Amendment has
guaranteed, “Congress shall make no law abridging the freedom of speech, or of the press.”2
Here we see the potential conflict lying between the First Amendment and the FCC: former is to
protect the press and latter is to regulate the press. And this conflict did occur.
Red Lion Broadcasting Co. v. FCC was an iconic case in which the Supreme Court held
that scarcity of broadcast frequencies justified regulations drawn to guarantee fairness of news
covering.3 However, in FCC v. Pacifica Foundation, another milestone in the history of the FCC,
the Supreme Court ruled that the FCC does not violate the First Amendment by punishing a radio
broadcast if there are patently offensive words depicting sexual or execratory activities and
organs. The words do not have to be obscene and the justification of such a sanction is intimately
related to the pervasiveness of broadcasting and its exposure to children.4
Indecency is the focus of the FCC since there are seldom obscenities aired by
broadcasters. However, the definition of indecency has been changing over the time. In 1970, the
FCC had a definition of indecency, which was borrowed from the Roth and Memoirs definitions
1
The FCC’s official website http://www.fcc.gov/what-we-do.
U.S. CONST. amend. 1.
3
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969).
4
FCC v. Pacifica Foundation, 438 U.S. 726, 748-49 (1978).
2
2
of obscenity. It referred indecency as “patently offensive by contemporary community standards;
and … utterly without redeeming social value.”5 After the Pacifica case in 1978, the FCC
defined “indecency” as frequent repetition of sexual or excretory expletives. “Frequent repetition”
is an element in defining “indecency” here. However, the FCC broadened the scope of the
definition in Pacifica case in 1987 by warning the broadcasters that “indecency” includes more
than the repetition of the “seven dirty words.” The context, in which the manner and the way of
presenting or portraying are included, matters in defining broadcast indecency.6 Although minor
changes occurred in the definition given by the FCC, in particular, it consistently held that a
single, non-literal use of an expletive was not actionably indecent.7 In 2001, the FCC gave an
even broader definition of indecency in more detail in its guidelines to Evergreen. In 2004, in
response to Bono incidence in Golden Globes, the FCC developed its new policy on regulating
indecency which led us to the FCC v. Fox Television Stations, Inc. case which will be discussed
in this paper. And today, on FCC’s official website, it defines indecency as “language or material
that, in context, depicts or describes, in terms patently offensive as measured by contemporary
community standards for the broadcast medium, sexual or excretory organs or activities.”8
History shows that the FCC has never came to a solid definition of indecency and the
decisions are mainly made on case-by-case basis. However, there is clearly a sign to notice in the
history that the FCC keeps broadening the definition of indecency which makes its regulation
more and more restrictive. The broadcasters might wonder where the line is. The First
Amendment is established to protect the freedom of speech and the press, but now the
broadcasters are increasingly restricted by the FCC’s restrictive policy.
5
WUHY-FM, Eastern Educational Radio, Notice of Apparent Liability, 24 F.C.C.2d408, para. 10 (1970).
Infinity Broadcasting Corp. 2 F.C.C.R. 2705 (1987).
7
Application of WGBH Educ. Found, 69 F.C.C.2d 1250, at P 10 n.6.
8
The FCC’s official website http://www.fcc.gov/guides/obscenity-indecency-and-profanity.
6
3
II FCC and Fox Television Stations, Inc.
In 2003’s Golden Globes Awards broadcasted on January 19th, Bono, the vocalist of the
band U2, stated in his acceptance speech “this is really, really, fucking brilliant. Really, really,
great.”9 The FCC found it violated its indecency prohibitions because Bono used an expletive in
his acceptance speech and the award presenter used two expletives. Fox Television Stations, Inc.
petitions for review of the order issued by the FCC.
The case between FCC and Fox Television Stations, Inc. first came to the United States
Court of Appeals for the second Circuit. The court granted the petition for review, vacated the
order of the FCC, and remanded the case for further proceedings consistent with this opinion. 10
In the court’s opinion delivered by Judge Pooler, the court found that the FCC’s new
policy did not consistent with its former policy regarding the “fleeting expletives.” And the
Commission provides no reasonable explanation for why it has changed its perception that a
fleeting expletive was not a harmful “first blow” for the nearly thirty years between Pacifica and
Golden Globes.11 Thus the court held that the FCC’s new policy was arbitrary and capricious
under the Administrative Procedure Act.12
Although the constitutional question was not decided here, the Court of Appeals for the
Second Circuit did bring some thoughts on the constitutional challenges facing by the
Commission’s new policy.
9
Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program,
19 F.C.C.R. 4975, at P 3 n.4 (2004).
10
Fox Television Stations Inc. v. FCC 489 F.3d 444, 467 (2007).
11
Id, at 458.
12
Id, at 447-48.
4
First of all, all the speech regulated by the FCC’s new released indecency policy was
fully protected by the First Amendment.13 Indecency speech, unlike obscenity, falls into the
umbrella of the First Amendment. The court cited the Reno v. ACLU case, in which a similarlyworded indecency regulation of the Internet was struck down as unconstitutionally vague,14 to
support its opinion. Secondly, the FCC might have violated the First Amendment when it
sanctions speech based on its own merit of the speech.15 The change of policy in the past years
makes broadcasters think that the Commission was judging the content by its personal taste. And
at last, the court found that “there is some tension in the law regarding the appropriate level of
First Amendment scrutiny.”16 Nowadays, the media industry is a brand new picture compared
with the situation in 1970s and some basis for ruling does not stand anymore. The advent of the
V-chip and parental ratings system similarly can be an alternative for the FCC’s indecency
policy.17
Then the FCC appealed to the Supreme Court. The Supreme Court ruled on a 5-4
decision that the judgment of the United States Court of Appeals for the Second Circuit was
reversed and the case was remanded.18 The Supreme Court held that the FCC’s indecency policy
was neither arbitrary nor capricious because “[t]he Commission could reasonably conclude that
the pervasiveness of foul language, and the coarsening of public entertainment in other media
such as cable, justify more stringent regulation of broadcast programs so as to give conscientious
parents a relatively safe haven for their children.”19
13
Fox Television Stations Inc. v. FCC 489 F.3d 444, 462 (2007).
Reno v. ACLU, 521 U.S. 844 (1997).
15
Fox Television Stations Inc. v. FCC 489 F.3d 444, 464 (2007).
16
Id, 464.
17
Id, 466.
18
FCC v. Fox Television Stations Inc. 129 S. Ct. 1800 (2009).
19
Id, at 1819.
14
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The Supreme Court held that the FCC did not violate the Administrative Procedure Act,
but the Court did not discuss the constitutionality of this new policy in this case because “the
lawfulness of this policy under the Constitution was a separate question to be addressed in a
constitutional challenge.”20 Like in the Court of Appeals for the Second Circuit, the focus of the
Supreme Court this time was not the constitutional question of the FCC’s indecency policy. The
Court declined to make address the constitutional issue without a lower court opinion.21 However,
the Court still gave several valuable opinions on the First Amendment issue in this case.
Justice Breyer and Justice Stevens claimed that “the Commission failed adequately to
explain its consideration of the constitutional issues inherent in its regulation.”22 They believed
that when a less restrictive rule drawn by an agency was decided by the Court as constitutional
then the successors of the agency has the burden of proving that a more restrictive is still
constitutional.23 Justice Thomas believed that the FCC’s reliance on the decisions made by the
Court in the Red lion and the Pacifica were problematic because the Court was focusing on
“transitory facts” instead of first principle when deciding the constitutional issue in those two
cases.24 And even if the FCC’s citation of the two cases was reliable and the regulations were
justified under the First Amendment, this case was different for that it was in a new age when the
technology is developing in a rapid pace. The broadcast television and radio were no longer
“unique pervasive” as described in the Pacifica case.25 In these days, with the development of
the internet, people have much easier access to all kinds of information than decades ago and the
broadcast was not the only pervasive media that can achieve to a broad range of people.
20
FCC v. Fox Television Stations Inc. 129 S. Ct. 1800, 1812 (2009).
Id, at 1819 (2009).
22
Id, at 1817 (2009).
23
Id, at 1817-18 (2009).
24
Id, at 1821 (2009).
25
Id, at 1822 (2009).
21
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The case then went back to the Court of Appeals for the Second Circuit in 2010. Again,
Judge Pooler delivered the court’s opinion. The court held that the FCC's policy violated the
First Amendment because it was unconstitutionally vague. It created a chilling effect that goes
far beyond the fleeting expletives at issue here. The court granted the petition for review and
vacated the FCC's order and the indecency policy underlying it.26
This time the case was remanded for the consideration of petitioners’ constitutional
arguments. The court’s discussion on the issue was consistent with its former opinion on the
constitutionality of the FCC’s indecency policy stated in the 489 F.3d 444 (2007). To begin with,
the court stated that the indecency speech was fully under the protection provided by the First
Amendment and cited several cases to show that the Supreme Court considered those restriction
on indecency speech subject to strict scrutiny.27And also, as seen from the former case on
indecency, broadcast radio and television has always been treated differently from other media
when considering their First Amendment protection and the situation was significantly different
today.28 The court at last struck down the FCC’s indecency policy and held that the FCC’s
current policy fails constitutional scrutiny.29
Briefly reviewing the history of court’s decisions on the cases between the FCC and Fox
Television Inc. we see the controversial issues existing in these cases. Whether the FCC’s
regulations on indecency is unconstitutional vague? Whether the FCC’s indecency test violates
the First Amendment and whether the indecency policy is an impermissible content-based
26
Fox Television Stations Inc. v. FCC 613 F.3d 317, 319 (2010).
Id, at 325 (2010).
28
Id, at 325 (2010).
29
Id, at 334 (2010).
27
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regulation of speech? Now after years of struggle, the case finally will be heard by the Supreme
Court and those are the questions which will be answered by the Court.
III Discussion
Before starting the discussion, we should review the 45 words that protect the freedom of
speech and the press. “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition the government for a redress of
grievances.”30 The FCC’s policy on indecency is as follow:
“Consistent with a federal indecency statute and federal court decisions interpreting the
statute, the Commission adopted a rule that broadcasts -- both on television and radio -that fit within the indecency definition and that are aired between 6:00 a.m. and 10:00
p.m. are prohibited and subject to indecency enforcement action.”31
The conflict here is that the FCC’s policy regulates the indecency speech which is fully
protected by the First Amendment. The FCC’s indecency is largely based on the decision of the
Pacifica case in which the likelihood of exposure to children was a main concern in justifying
the FCC’s regulation.32
The Supreme Court has decided to hear this case in 2012. As far as I consider it, I think
the Court will hold that the FCC’s indecency policy is unconstitutional. I will state my reasoning
in the following discussion.
First of all, the FCC’s indecency policy is an impermissible content-based regulation. The
Supreme Court has said that unless the government has a compelling interest, the constitutional
30
U.S. CONST. amend. 1.
The FCC’s official website http://www.fcc.gov/guides/obscenity-indecency-and-profanity,
32
FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
31
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guarantee of freedom of expression means that “government has no power to restrict expression
because of its message, its ideas, its subject matter, or its content.”33 The indecent speech is in
the protected range of the First Amendment and according to the First Amendment doctrine, it is
unconstitutional to regulate the content of the speech no matter it contains the F-word, S-word or
any other filthy words unless there is a compelling interest.
After establishing the fact that the FCC’s indecency policy is a content-based regulation,
it has to go through the strict scrutiny to be justified as constitutional. There must exist a
compelling government interest and the regulations have to be narrowly tailored so that they will
not abridge too much of the speech. And also, the regulations must avoid vagueness and
overbreath. For instance, in Reno v. ACLU, the Supreme Court struck down the Communications
Decency Act of 1996 because it found that a provision criminalizing the knowing transmission of
indecent speech through the internet was unconstitutionally vague and not narrowly tailored.34 In
opinion delivered by Judge Pooler in the Court of Appeals for the Second Circuit, the court also
cited the United States et al. v. Playboy Entertainment Group, Inc. case and the Sable
Communications of California, Inc. v. FCC case to demonstrate that when the regulations do not
survive the strict scrutiny, they will be struck down by courts.35
There is no compelling government interest in this case. In the Pacifica case, the Court
noted that “of all forms of communication, it is broadcasting that has received the most limited
First Amendment protection” because of its “uniquely pervasive presence in the lives of all
Americans.”36 And the nature of broadcast television made it “uniquely accessible to children,
33
Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96 (1972).
Reno v. ACLU, 521 U.S. 844, 882 (1997).
35
Fox Television Stations Inc. v. FCC 613 F.3d 317, 325 (2010).
36
FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978).
34
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even those too young to read.”37 The compelling government interest presenting in the Pacifica
case was to protect children. However, with the technology advancing today, it can no longer be
a compelling government interest anymore.
The broadcast television and radio are not “uniquely pervasive” any more. Thirty three
years can change a lot. DVRs and the internet make it possible for people to watch a program on
any day at any time. These technological advancements make media like television and internet
more easily accessible to the public including children. The provision about the time period
which once considered as the “safe harbor” was then not a logical regulation.38
Seeing from another direction, the technology makes it easier to protect children. V-chip,
as it suggests by the name, was a combination of different technologies. “An electronic circuit in
a television or cable box can be designed to block programs by reading a numerical code
broadcast along the same band used for closed captioning.”39 Thus the indecent programs are not
easily exposed to children.
What is more, the FCC’s indecency policy is not narrowly tailored and it is
unconstitutional vague because there is no clear definition for indecency as we have discussed in
the Background section. An unconstitutionally vague law is one that is written so unclearly that
persons “of common intelligence must necessarily guess at its meaning and differ as to its
application.”40 The definition of indecency drawn by the FCC as we mentioned in section one:
indecency is “language or material that, in context, depicts or describes, in terms patently
offensive as measured by contemporary community standards for the broadcast medium, sexual
37
FCC v. Pacifica Foundation, 438 U.S. 726, 749 (1978).
Elizabeth H. Steele, Examining the FCC’s Indecency Regulations in Light of Today’s Technology, 2010, at 304.
39
Jack M. Balkin, Media Filters, the V-chip, and the Foundation of Broadcast Regulation, 45 DUKE L.J. 1131, 1131
(1996).
40
Connally v. General Constr. Co. 269 U.S. 385, 391 (1926).
38
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or excretory organs or activities.” First, there is no clear line for what can be defined as “patently
offensive” and Secondly, it is impossible to list all the expression related to “sexual or excretory
organs or activities.”41 Reviewing on the recent FCC rulings on indecency, it is hard to draw
conclusion from those rulings what is indecency according to the Commission. The FCC said it
was indecent that U2’s Bono uttered the F-word on an awards show while said it was not
indecent actors repeatedly uttered F-word in Saving Private Ryan. This kind of examples is
beyond listing.
The vagueness of the FCC’s indecency policy can cause a chilling effect on the free
speech.42 Broadcasters, being not sure where the boundaries are located, may start selfcensorship. Thus the freedom of speech is deprived and that the First Amendment rights are
infringed. The FCC's current indecency policy undoubtedly gives the FCC more flexibility. To
some extent, it seems that the FCC was judging the merit of a program by the Commission’s
personal taste. The First Amendment was created to protect the free environment of the speech.
Therefore, if a law brings a chilling effect which will affect the freedom and efficiency of the
expression, then it is unconstitutional.
For the reasons presented above, I think the Supreme Court will strike down the FCC’s
indecency policy. However, I do not believe the decision will be a unanimous one.
The dissenting opinion may be focusing on the compelling government of protecting
children. Although technology has developed during the past years, there are still areas that do
not have the technology to block indecent programs or there are parents who do not know how to
41
42
Fox Television Stations Inc. v. FCC 613 F.3d 317, 330 (2010).
Id, at 319 (2010).
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adopt the newly developed technology to guide their children. Children are somehow still likely
to watch or listen to indecent programs. Thus it is necessary to regulate indecent programs.
To sum up, the FCC’s indecency policy is unconstitutional in my opinion because it is an
impermissible content-based regulation of the speech. It does not have a compelling government
interest and it is unconstitutionally vague. If this indecency policy were to put into effect, then it
will bring a chilling effect to the media environment, which would be an obstacle in the road
leading to the freedom of expression.
The Court of Appeals for the Second Circuit held that the FCC can create a constitutional
policy regulating indecent speech but its current policy fails constitutional scrutiny.
From my point of view, I disagree with the Court of Appeals opinion that the FCC can
create a constitutional policy to regulate indecency. And I do not think it is necessary now to
establish a law regulating the indecent speech in broadcast television or radio.
The FCC started to regulate the broadcast radio in the Red Lion case and it regulated the
indecent speech from the Pacifica case. Neither of the ground on which the case decisions were
drawn applies to the situation today. The broadcast was not a scares resource now with all kinds
of new media being invented. Technology provides different ways to protect the children from
the indecent programs. There is no need to regulate the indecency because we have found a way
to protect those who might be hurt by it. However, my opinion that there is no need to create an
indecency policy only stands under some conditions: the technology that can block certain
indecent programs is pervasive and parents can easily learn how to guide their children in
watching or listening programs.
12
If the FCC wants to create a constitutional policy regulating the indecency, it must avoid
the vagueness in the policy. Firstly, the time period was no longer a rational “safe harbor”
because with the DVR’s today, time does not matter. Secondly, it needs to give a more narrow
definition of indecency to prevent violating the First Amendment by regulating on a too broad
range.43
Thus, the FCC can create an indecency policy but when the technology is more pervasive
and mature there will be no need to regulate the indecency. The FCC can focus on regulating the
indecency in the programs that might be seen by children. And for the live show, audience may
prefer it not be regulated.
IV Conclusion
U2’s Bono said the F-word on Golden Globes was the start of this case. The FCC and
Fox Television Stations Inc. have engaged in the law suit for several years and the controversial
First Amendment issues raised in this case has always been the heated topics in the law field.
Before the year of 2010, the focus of the Court was whether the FCC’s indecency policy violated
the Administrative Procedure Act. In 2010, this case finally landed under the scope of the First
Amendment issue.
The Supreme Court decided to hear this case in 2012. As far as I am concerned, the
FCC’s indecency policy was unconstitutional for the following reasons. First of all, it was an
impermissible content-based regulation of the speech. Secondly, it did not have a compelling
government interest and was not narrowly tailored. And also, it was unconstitutionally vague.
Therefore I think the Supreme Court will strike down this indecency policy. However, I hold the
43
Elizabeth H. Steele, Examining the FCC’s Indecency Regulations in Light of Today’s Technology, 2010, at 304.
13
opinion that this decision will not be a unanimous one because the compelling government
interest which is to protect children may still be justified. As to the question whether the FCC
can create a constitutional policy regulating the indecency, I believe the answer is yes. But I do
not think it is a necessity in this fast developing information age when we have plenty of ways to
protect children from the indecent programs broadcasted by television or radio.
In conclusion, I firmly believe that the FCC’s indecency policy is unconstitutional. It
brings a chilling effect to the media environment and violates the First Amendment.
References
The FCC’s official website http://www.fcc.gov/what-we-do
U.S. CONST. amend. 1
Red Lion Broadcasting Co. v. FCC, 395 US 367
FCC v. Pacifica Foundation, 438 U.S. 726 (1978)
WUHY-FM, Eastern Educational Radio, Notice of Apparent Liability, 24 F.C.C.2d408, para. 10
(1970)
Infinity Broadcasting Corp. 2 F.C.C.R. 2705 (1987)
Application of WGBH Educ. Found, 69 F.C.C.2d 1250, at P 10 n.6.
The FCC’s official website http://www.fcc.gov/guides/obscenity-indecency-and-profanity
Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe
Awards" Program, 19 F.C.C.R. 4975, at P 3 n.4 (2004)
14
Fox Television Stations Inc. v. FCC 489 F.3d 444 (2007)
Reno v. ACLU, 521 U.S. 844 (1997)
Fox Television Stations Inc. v. FCC 613 F.3d 317 (2010)
Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96 (1972)
Reno v. ACLU, 521 U.S. 844, 882 (1997)
Elizabeth H. Steele, Examining the FCC’s Indecency Regulations in Light of Today’s
Technology, 2010, at 304
Jack M. Balkin, Media Filters, the V-chip, and the Foundation of Broadcast Regulation, 45
DUKE L.J. 1131, 1131 (1996)
Connally v. General Constr. Co. 269 U.S. 385, 391 (1926)