Today the Supreme Court overturned a decision in which the U.S. Court of Appeals for the 2nd Circuit concluded that the Federal Communications Commission violated the Administrative Procedure Act when it announced that, contrary to a longstanding FCC policy, fleeting expletives on live television can trigger fines for broadcast indecency. The 2nd Circuit ruled that the 2004 policy reversal, provoked by comments that Cher and Nicole Richie made during music award shows carried by Fox, was "arbitrary and capricious" because the commission failed to "articulate a reasoned basis" for it. Five members of the Supreme Court disagreed, finding that the standard applied by the appeals court was insufficiently deferential.
Notably, the Court did not address the constitutionality of the FCC's policy regarding broadcast indecency or the statute underlying it, sending the case back to the 2nd Circuit for further consideration. "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," Justice Antonin Scalia wrote in the majority opinion. "Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case." It seems likely, given the doubts it expressed about the constitutionality of the FCC's censorship, that the 2nd Circuit will rule that it violates the First Amendment, in which case the government certainly would appeal again to the Supreme Court.
Although he joined the majority's conclusion that the FCC complied with the Administrative Procedure Act, Justice Clarence Thomas wrote a concurrence in which he reiterated his skepticism about the government's disparate treatment of broadcasting, which is subject to content restrictions that would be clearly unconstitutional in any other medium. "The text of the First Amendment makes no distinctions among print, broadcast, and cable media," Thomas wrote (quoting an opinion in an earlier case), "but we have done so." He said "this deep intrusion into the First Amendment rights of broadcasters" is based on rationales that never made much sense and seem more outmoded every day: "the scarcity of radio frequencies," plus the idea that broadcast TV and radio are "uniquely pervasive" and "uniquely accessible" to children. "Even if this Court's disfavored treatment of broadcasters under the First Amendment could have been justified" at the time of the decisions upholding the "fairness doctrine" and the ban on broadcast indecency, Thomas wrote, "dramatic technological advances have eviscerated the factual assumptions underlying those decisions."