An arbitrary and capricious analysis of the Supreme Court's indecency ruling

By Eriq Gardner

It's hard to imagine what went on inside the Supreme Court's chambers when the nine justices were reviewing a challenge made by television broadcasters against the FCC for imposing allegedly arbitrary indecency standards. But we imagine this case may have provided lots of opportunities for the justices to swear at each other.

Yes, many Supreme Court decisions these days elicit narrow 5-4 rulings like today's, which favored the FCC and handed broadcasters a setback by finding that the FCC hasn't overstepped its bounds in policing the live broadcast of unexpected curse words. At least not yet.

But judging by the Supreme Court's full edict — which includes Justice Antonin Scalia's main opinion, two concurrences, and three dissents — the backstage drama to reach a conclusion on this case must have been fascinating.

Scalia's opinion will grab the headlines and ultimately will have the most legal weight. 

But it appears as though Justice Anthony Kennedy once again played the tie-breaker on the court as his super-boring and technical legal analysis (as seen in his concurrence) ultimately rules the roost. 

Justice Kennedy asked whether the FCC is required to provide a full and reasoned explanation when a policy is changed, and in the absence of an explanation that's cogent to broadcasters, is the agency being "arbitrary and capricious"?

Justice Kennedy asks the question but doesn't do a great job at answering it. Like a philosopher who obsesses over the inability to prove a negative, Kennedy will only say that the lower court erred when ruling that the FCC's explanation was insufficient. 

Does that make the FCC's actual policy consistent with the U.S. Constitution?

Don't ask Scalia. The conservative justice may have wished to write an opinion that banished immorality from television altogether, but instead limits himself, perhaps in the interest of winning that 5th vote, to a narrow, technical reading of the case that punts the larger questions back to the 2nd Circuit, and hints that the same case may arrive at the Supreme Court's doorstep once again. See the following passage: 

It is conceivable that the [FCC's] orders may cause some broadcasters to avoid certain language that is beyond the [FCC's] reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case. Meanwhile, any chilled references to excretory and sexual material “surely lie at the periphery of First Amendment concern,”...We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time.

 

Only Justice Ruth Bader Ginsburg in her solo dissent really engages in a full discussion of the First Amendment and the ramifications of a FCC policy that potentially chills free speech. Meanwhile, Justice Stephen Breyer worries in the main dissent whether the FCC has truly analyzed "the potential impact of its new policy upon local broadcasting coverage," an argument that probably won't do lawyers for Fox and other broadcasters much good when they go back to the 2nd Circuit. 

Finally, there's Justice Clarence Thomas, who offers a truly curious opinion. On one hand, he agrees with the majority "as a matter of administrative law," thus giving the FCC the continued authority to require broadcasters to go bleep-crazy in the interest of shielding children from naughty words. But might Thomas really have wanted to write an opinion that not only gave a victory to broadcasters, but abolished the FCC entirely? 

Consider:

"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," he writes, before going on a bit of a rant, and concluding, "I am open to reconsideration of Red Lion and Pacifica in the proper case."

So there you have it. A pretty remarkable decision from the Supreme Court today. Each judge was on his or her own planet in making a determination on the merits. It's amazing the justices found any room to agree.