A. The New F.C.C. and the Prospect of a New Direction
1. President Obama and Julius Genachowski
While the Second and Third Circuits properly disposed of their fleeting expletives cases,[1] neither should ever have confronted them in the first instance. The untenable position that the courts were put in resulted from an administration unacceptably throwing around its weight in the realm of independent agencies. The Obama Administration, through its own agency appointments, has the opportunity to relieve the courts of this burden.
The Obama Administration unofficially announced that Julius Genachowski would be the successor to Republican Kevin Martin on January 14, 2009.[2] Genachowski has been a longtime friend of President Obama, a relationship beginning with their service on the Harvard Law Review.[3] President Obama first tapped Genachowski to assist in his “highly successful online strategy” during the 2008 campaign.[4] Later, Genachowski helped to shape “telecommunications and technology policies” during the course of the campaign.[5]
Genachowski has openly endorsed net neutrality on the Internet[6] and “media ownership rules that promote[] a diversity of voices on the airwaves.”[7] Genachowski clerked for former Supreme Court Justices William J. Brennan, Jr. and David H. Souter,[8] two Justices with notably liberal tendencies when it comes to the First Amendment and regulation of speech.[9] President Obama’s choice has already been praised: “The head of the country’s largest broadcasting trade group [David Rehr, president and CEO of the National Association of Broadcasters] is cautiously optimistic the Obama administration will ease some of the pressure and uncertainty that have hovered over TV and radio in recent years concerning appropriate content.”[10] Rehr speculated that Genachowski is more concerned with the digital transition and emerging technology than looking over broadcasters’ shoulders to police content.[11] However, “Rehr stresses he isn’t advocating an anything-goes policy. He just thinks the marketplace and broadcasters usually can sort out appropriate content themselves,” when referring to Genachowski.[12]
The new administration appears to be much more concerned with technology and access to newer communications than the former administration, along with taking a harder look at the dominance of certain stakeholders like Verizon and AT&T in the technology industry.[13] However, President Obama’s choice to head the F.C.C. shows that he is aware of the fear in which many broadcaster’s are operating because of the heightened fines available if the F.C.C. finds indecency under the more lax standard now in use. Genachowski clerked for two Supreme Court Justices who likely influenced his views about indecency and First Amendment freedoms. There is speculation that an F.C.C. headed by Genachowski will return to the standards enunciated by the F.C.C. prior to 2003:
Broadcasters are keenly interested in whether Mr. Genachowski will take a more moderate approach to enforcement of indecency standards. Thousands of complaints backed up at the F.C.C. over the past few years after the agency’s tougher enforcement policies––and multimillion dollar fines––were challenged in court by broadcasters.
Mr. Obama’s plan advocated using technology to help “protect our children while preserving the First Amendment.” Hollywood and broadcasters interpreted those statements as code that an Obama F.C.C. would revert to its pre-Bush-administration days of restrained enforcement and smaller fines.[14] President Obama, as a constitutional scholar, [15] likely recognized that the indecency fight raging in the courts was a creature of the Bush Administration’s molding of indecency policy with little regard for First Amendment freedoms.
By nominating an individual well versed in both constitutional law and emerging technology issues, President Obama can leave the F.C.C. to its own devices without having to pressure the agency in the fashion the Bush Administration did. Genachowski will primarily be concerned with issues like net neutrality and the digital transition, but he will still have ample opportunity to reverse the indecency regime promulgated by Martin’s F.C.C. Furthermore, Genachowski can end the constitutional issue by simply reverting back to pre-2003 indecency standards, a measure which can be accomplished in an industry guidance memorandum issued by the Commission.[16] Also, by focusing on more pressing issues involving technology and overall industry regulation, Genachowski can easily slide any indecency decisions through, likely only to be noticed by the Parent’s Television Council––the organization that primarily floods the F.C.C. with indecency complaints, skewing the pool of complaints received by the agency.[17]
Though this seems to be exactly the same tactic that the Bush Administration used to push its agenda, it is much different. In this case, President Obama has chosen Genachowski not only because of his close ideological ties, but also because of his expansive knowledge in the emerging technology and broadcast regulation fields.[18] Further, any action by Genachowski regarding fleeting expletives and indecency will simply be a return to the indecency standards already endorsed by the Supreme Court in Pacifica and followed for many years. The mentality is therefore focused on returning to constitutionally accepted standards, rather than changing an industry to reflect the ideological and political sentiments of one party.
2. Chairman Genachowski and the New Commission
Genachowski, a Democrat, was officially and unanimously confirmed by the Senate as the new Chairman of the F.C.C. on June 25, 2009, more than five months after the announcement of his nomination by the Obama Administration.[19] The Senate also unanimously confirmed the re-appointment of Republican Robert M. McDowell to the F.C.C. on the same day.[20] During the five months between Chairman Genachowski’s nomination and confirmation, Michael J. Copps, a Democrat, served as acting Chairman of the F.C.C. and he will continue to serve until the expiration of his term on June 30, 2010.[21] The final two seats of the Commission were filled on July 24, 2009 when the Senate unanimously confirmed Migon L. Clyburn, a Democrat, and Meredith Attwell Baker, a Republican.[22]
According to statutory mandate, President Obama can only nominate and the Senate can only confirm three Democrats to sit on the Commission at one time.[23] President Obama has filled the Commission with competent individuals, all of whom have extensive resumes dealing with the F.C.C. and the telecommunications industry.[24] However competent the new Commission may be, it is obvious that many challenges await Chairman Genachowski and his associates.
John D. Rockefeller, IV, Chairman of the Senate Committee on Commerce, Science and Transportation, aptly demonstrated that the road ahead of the new Commission would not be easy during the opening remarks at Chairman Genachowski’s nominations hearing: “[L]et me be very clear about the challenge before you. Fix this agency, or we will fix it for you. Prove to us that the FCC is not battered beyond repair.”[25] Senator Rockefeller specifically referenced “affordable and robust broadband,” “entrepreneurship,” and “educational resources” in his opening remarks.[26] Moreover, Senator Rockefeller specifically asked Chairman Genachowski to “[s]how us that parents can have confidence to view programming in their homes without their children being exposed to violent and indecent programming.”[27]
There is no question that the indecency standard is still sitting on the tongues of many congressmen. It is also obvious that Genachowski’s Commission has as many challenges facing it on the technology side of its docket as on the enforcement and regulatory side––namely the switch from analog to digital and expanding broadband.[28] However, the question of indecency has not necessarily taken a back seat, though it may now be a sideshow on another matter—the possible reformation of the Children’s Television Act.
Senator Rockefeller may be planning on introducing legislation to bring the Children’s Television Act into the Digital Age, indicated by his opening of hearings on the subject on July 22, 2009.[29] While stating that the intent of the hearings was not to specifically discuss indecency, Senator Rockefeller stated, “[I]t will come as no surprise to anyone in this room that I continue to have grave concerns about violence and indecency in the media. I continue to believe that programming with gratuitous sex and excessive violence harms our children and demeans our culture.”[30] It is quite clear that the topic of indecency is one of Senator Rockefeller’s concerns and there is a high likelihood that this could lead to the first opportunity Chairman Genachowski and the full Commission will have to take a new look at the current indecency regime left to it by the former Commission and in the wake of the Supreme Court’s most recent decision.
Chairman Genachowski spoke at the hearing on July 22, appearing to avoid the indecency question as much as possible, focusing instead on the Act’s original purpose of “promoting educational and informational programming for children and placing limits on commercial advertising to which children are exposed while watching TV.”[31] However, Chairman Genachowski intimated at his views on indecency without saying as much:
Government has a vital role to play in helping parents and protecting children, while honoring an abiding by the First Amendment. The private sector has real responsibilities in this area – and, potentially, opportunities. I’m hopeful that the evolving media landscape will produce innovation and new business models to increase the amount of educational programming and content available to all children, and enhance the ability of parents to pick and choose.[32]
It is very insightful that Chairman Genachowski specifically mentioned the First Amendment in his first public appearance on Capital Hill as the official head of the F.C.C.[33] Again, President Obama was highly cognizant of the fact that Chairman Genachowski is versed in constitutional law and First Amendment issues. This demonstration of Chairman Genachowski’s awareness of the issues currently surrounding indecency and the protection of free speech is at least some evidence that he understands that the current policies adopted by the previous Commission are likely violated the First Amendment protections of the Constitution.
Possibly more telling is Chairman Genachowski’s statement on the importance of protecting children: “[Children] are our most cherished, valuable resource. Video content for our nation’s children should treat them as such and not as ‘Little Consumers.’ Guarding against inappropriate marketing to children is vas vital today as it was twenty years ago when Congress limited commercial advertising to kids through the Act.”[34] Noticeably absent from this statement is any mention of the effects of general programming that may be held “indecent” under the current F.C.C. stance and policy on expletives. It is likely that Chairman Genachowski is carefully watching his words with regard to indecency in anticipation of the seemingly inevitable battle over the constitutionality of the current F.C.C. policy on indecency. However, as discussed in the next section, the Supreme Court has left open the door for the current F.C.C. to bring the broadcast indecency policy back within the bounds of the First Amendment.
B. The Supreme Court’s Ruling and How the New F.C.C. Can Use It
1. The Supreme Court’s Version of “Arbitrary and Capricious”
On April 28, 2009, the Supreme Court overturned the Second Circuit’s ruling that the F.C.C. had acted in an arbitrary and capricious manner when it reversed its decades-old policy regarding isolated and fleeting content that was deemed to be indecent.[35] Justice Scalia delivered the plurality opinion of the Court,[36] holding that the F.C.C. had, in fact, given enough of a reasoned decision when changing the fleeting expletives policy as to avoid being demarcated as “arbitrary and capricious” under the APA.[37]
Justice Scalia began by walking through 18 U.S.C. § 1864 and the Pacifica decision, followed by the Commission’s treatment of fleeting expletives up through the change in policy after Bono’s utterance of “fuck” at the Golden Globes in 2001.[38] He then discussed the Golden Globes Order and the Remand Order, highlighting language offered by the previous F.C.C. Commission:
Both broadcasts, it noted, involved entirely gratuitous uses of “one of the most vulgar, graphic, and explicit words for sexual activity in the English language.” It found Ms. Richie's use of the “F-Word” and her “explicit description of the handling of excrement” to be “vulgar and shocking,” as well as to constitute “pandering,” after Ms. Hilton had playfully warned her to “‘watch the bad language.’” And it found Cher's statement patently offensive in part because she metaphorically suggested a sexual act as a means of expressing hostility to her critics.[39]
Justice Scalia’s focus on this language would set the tone of the opinion and also set the stage for finding that the Commission could reasonably conclude that this type of language should be regulated on broadcast television.
Justice Scalia found that the Second Circuit had improperly used circuit precedent that “requir[ed] a more substantial explanation for agency action that changes prior policy.”[40] The holding of the court followed:
We find no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review. The Act mentions no such heightened standard. And our opinion in State Farm neither held nor implied that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance.[41]
He further stated the APA makes no distinction between agency action in the first instance and later action by the agency reversing a policy.[42] The Court also acknowledged that an agency must recognize that it is changing policy, and stated that the F.C.C. had done so.[43] However, an agency “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and the agency believes it to be better . . . .”[44] Justice Scalia also stated that the agency’s change of course adequately shows that it believes that the change of policy is better.[45]
By this point in the opinion, it was clear that Justice Scalia, along with the other four members who joined the opinion, believed that the arbitrary and capricious standard of the APA was indeed a low threshold for an independent agency to overcome. In doing so, the Court distinctly emphasized that this low threshold was only for the APA standard and had no relation to any constitutional standards required by the First Amendment. Justice Scalia first rejected the assertion by the broadcasters that the arbitrary and capricious standard was somehow linked to the constitutional question of whether the policy violated the First Amendment.[46]
Further, Justice Scalia writes:
In the same section authorizing courts to set aside “arbitrary [or] capricious” agency action, the Administrative Procedure Act separately provides for setting aside agency action that is “unlawful,” 5 U.S.C. § 706(2)(A), which of course includes unconstitutional action. We think that is the only context in which constitutionality bears upon judicial review of authorized agency action. If the Commission's action here was not arbitrary or capricious in the ordinary sense, it satisfies the Administrative Procedure Act's “arbitrary [or] capricious” standard; its lawfulness under the Constitution is a separate question to be addressed in a constitutional challenge.[47]
This again shows the Court’s awareness that they are deciding purely on administrative law grounds and not on any related constitutional question. The Court, beginning with these comments, explicitly leaves open the door to a constitutional challenge of the F.C.C.’s current indecency policy with regard to fleeting expletives.
Justice Scalia specifically acknowledges that the current F.C.C. policy “may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution.”[48] He continues, “Whether that is so, and if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case.”[49] He then, however, tempers his remarks by stating, “Meanwhile, any chilled references to excretory and sexual material ‘surely lie at the periphery of First Amendment concern.’”[50]
Justice Scalia, writing this time for the plurality of four (Scalia, Roberts, Alito, and Thomas), dedicates nearly five pages of the opinion to dispelling the dissent’s opinions.[51] In particular, Justice Scalia takes issue with Justice Breyer and Justice Stevens contention that the Commission correctly addressed the constitutional issues surrounding fleeting expletives.[52] The plurality reasons that the F.C.C. did give credence as to why its policy was did not violate the First Amendment, at least facially, by reading Pacifica to “[draw] no constitutional line; to the contrary, it expressly declined to express any view on the constitutionality of prohibiting isolated indecency.[53]
Interestingly, Justice Scalia also addresses Justice Breyer’s argument “[t]hat law grants those in charge of independent administrative agencies broad authority to determine relevant policy. But it does not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences.”[54] Justice Scalia retorts that “[t]he independent agencies are sheltered not from politics but from the President, and it has often been observed that their freedom from presidential oversight (and protection) has simply been replaced by increased subservience to congressional direction.”[55] However, it is very apparent that the F.C.C. is not at all insulated from the political objectives of the executive as the Bush Administration and a Republican Congress pushed the F.C.C. to this position (more on this in later posts).
Justice Thomas’ concurrence focuses directly on the constitutional question, “not[ing] the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.”[56] He writes:
This deep intrusion into the First Amendment rights of broadcasters, which the Court has justified based only on the nature of the medium, is problematic on two levels. First, instead of looking to first principles to evaluate the constitutional question, the Court re-lied on a set of transitory facts, e.g., the “scarcity of radio frequencies,” to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity: “Constitutional rights are enshrined with the scope they were under-stood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”
. . . Second, even if this Court's disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions.[57]
Justice Thomas invites re-evaluation of both Pacifica and Red Lion decisions and intimates that he does not believe the current policy is within the constraints laid forth by the First Amendment.[58]
2. Where the Opinion Leaves Off and What the F.C.C. Can Do
All three of the fleeting expletives cases (the Second Circuit, Third Circuit, and the Supreme Court) avoided the constitutional question in their holdings. This is unsurprising considering the intricacies––and pitfalls––surrounding indecency, profanity, and expletives in the First Amendment arena. And of course there is the axiom of judicial interpretation that ambiguous language in a statute should be construed to avoid a constitutional abnormality.[59]
However, it can readily be gleaned from the Second Circuit and the Supreme Court opinions that the current F.C.C. policy with regard to fleeting expletives on broadcast television is likely at odds with the First Amendment. Judge Pooler readily acknowledged that the F.C.C.’s current policy would likely not “pass constitutional muster.”[60] Justice Thomas criticized the continuing validity of both Pacifica and Red Lion.[61] The dissenting Justices, even while arguing that the case should be remanded in accordance with the canon of constitutional avoidance, repeatedly referred to the F.C.C. policy as “constitutionally suspect.”[62] Even the infallible Justice Scalia invited the constitutional question.[63]
There are two foreseeable courses of action that could be taken. One can be taken by the broadcasters. In this case, the broadcasters must now directly challenge the constitutionality of the F.C.C.’s policy, likely arguing that the policy unconstitutionally chills protected speech. After all, speech that is indecent retains constitutional protection.[64] The broadcasters have a strong argument that the current policy unduly restricts and chills constitutionally protected language because many broadcasters will not air certain shows unless with the safe harbor period from 10 p.m. to 6 a.m., even those which obviously contain artistic value, such as Saving Private Ryan.[65]
Moreover, as Justice Thomas points out, many of the concerns that were evident at the time of the Pacifica decision are no longer relevant.[66] Spectrum scarcity is no longer an issue because the switch from analog to digital alleviates this concern.[67] Besides that, the technological advances that are available today support less interference from the F.C.C. rather than more, as Justice Scalia contends.[68]
Parents today have both more and less control over the content that enters their home. No longer is broadcast media “uniquely pervasive” as it was in the time of Pacifica. Children today are bombarded by images via broadcast television, cable television, satellite television and radio, iPods, the Internet, and even their cell phones. Technology has introduced a plethora of modes to receive and send information. The F.C.C. currently regulates these different mediums in different ways,[69] which has led to considerable confusion about what standard applies to the various mediums available. Currently, broadcast media is the only medium that receives a lesser standard of First Amendment scrutiny.[70] At least one commentator has argued that “[b]ecause technological developments have blurred the distinction between broadcast and non-broadcast electronic media, differing treatment of these forms of communication is no longer legally defensible.”[71] Justice Thomas agrees.[72]
Parents, not the F.C.C., are in a better position to regulate what sorts of programming and on what medium such programming enters their home. Parents can monitor what shows children watch on television more than ever now by restricting certain programming from even entering the home using their remote control. Applying the heightened standard of scrutiny that the Court applies to other mediums, parent choice would be the least restrictive alternative that is available.[73] Further,
Allowing viewers to make their own decisions about what they do or do not watch achieves the same effect as the fines, for the content that is broadcast is determined ultimately by the viewers and the commercial advertisers that seek their attention. When the viewers become bored, horrified, or repulsed, they turn the channel. When enough do so, the broadcaster gets the hint and alters the content in an effort to keep both the viewers and the advertisers. Accordingly, it is the marketplace, not the government, that controls the content and the individual, not the government, who chooses what to watch.[74]
These are strong arguments and this path will almost inevitably be taken by some broadcaster in the near future, especially since the question remains ripe since the F.C.C. has not changed course with regard to the policy and has the backing of the Supreme Court in stating that it is, in fact, enforceable. However, a more interesting, and possibly more controversial step could quickly resolve the issue and immediately make the question moot.
The second course of action is much simpler, though it would likely create a flurry of activity from the Parent’s Television Council.[75] In this scenario, the new F.C.C. takes the initiative and, through another series of orders, moves the indecency policy back to its pre-2001 stance, which is more constitutionally sound. I say this with some hesitancy in light of Justice Thomas’ most recent concurrence because he questions the entire validity of the Pacifica decision. However, this policy at least retains the original standpoint of the Commission that isolated, fleeting expletives are not actionable unless they reach some higher threshold of indecency. This comports much more with the spirit of Pacifica in that indecent language retains whatever First Amendment protection it must receive and the Commission is still free to take action when the circumstances and context warrant action against a violator.
Moreover, Justice Scalia’s plurality opinion invites this type of policy change by the Commission. Now that the Commission is fully aware that it need not comport with any “heightened” standard when it reverses course, it can proceed with changing the rule as long as it “believes” the change to be better and “that there are good reasons for it . . . .”[76] If nothing else a “good” reason would be to not unduly chill protected speech because the Commission believes that old rule better reflected the constitutional bounds outlined in Pacifica. Further, there are other good arguments that the old policy was unduly influenced by one politically powerful group, the PTC, which “gamed” the system by flooding the F.C.C. with form letters, regardless of whether parents truly found the programming offensive, or even watched the show![77] Further, the F.C.C. could insulate itself further if it followed normal notice-and-comment rulemaking procedures under 5 U.S.C § 553 (2009).[78]
The Commission should also point out the fact there is currently no study that actually shows that indecency or profanity “harm” children in any appreciable manner.[79] Justice Scalia argues that “[o]ne cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent broadcasts (and insulated from all other indecency), and others are shielded from all indecency.”[80] He then states, “It is one thing to set aside agency action under the Administrative Procedure Act because of failure to adduce empirical data that can readily be obtained. It is something else to insist upon obtaining the unobtainable.”[81] His argument also cuts the other way. There is no empirical data that can be obtained that it does not harm children and even if, as Justice Scalia asserts, “Congress has made the determination that indecent material is harmful to children,”[82] there is no reason that the F.C.C. cannot revert to a prior standard that it is equally unsupported by empirical evidence. The door is open for the new F.C.C. commissioners to use Justice Scalia’s plurality opinion to its fullest extent and change back to the standard that, presumably, comports to the constitutional standards set forth in Pacifica. In doing so, the Commission can undo the previous Administration’s warrantless depth charge into unconstitutional policy making at the behest of Congress and the executive.
Just to top it off, the F.C.C. could revert to this policy and still “show its teeth” by taking action more consistently against violators and reforming the way in which complaints are filed by consumers. Simple changes could avoid much more complicated (and expensive) litigation in the courts, and could resolve the issue while piggy-backing on the theme of consumer empowerment that Chairman Genachowski seems to be pushing.[83]
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