I haven’t had time to post lately, but now let me return to my series of posts discussing the background of the Supreme Court’s “fleeting expletives” case from last month, FCC v. Fox Television Stations. Click here to see the whole string of posts, including this one, on a single page, in chronological order. (As usual, click here to watch George Carlin’s monologue if you haven’t done so already!)
In past posts, we’ve seen the evolution of the FCC’s policy on regulating expletives. Recall that the FCC’s statute, the Communications Act of 1934, has two sections that are somewhat in tension. First, we have the no-censorship provision, now codified at 47 U.S.C.
sk says:
“Now an agency can’t just enact requirements and rescind requirements just like that; they have to issue written statements, which they publish in the Federal Register. And courts then analyze those statements to see whether they make sense, are consistent with the statute, respond to the comments, etc.”
Are you sure about this? Agencies propose regulation, publish them in the federal register, and the courts review those proposed changes as a matter of course? I would have thought, rather, that agencies propose, publish in the federal register, then enact. Only if they are challenged in court (i.e. ‘sued’), do courts analyze the proposed legislation.
Sk
June 2, 2009, 2:36 pmEnriqueArmijo says:
Very helpful, Prof. Volokh. When returning to Fox in Part VI, might you consider briefly discussing, to the degree you think it’s relevant, the difference between an agency’s adoption of policy via adjudication vs. via rulemaking, and the implications of the Fox holding on the latter, as well as the former?
In his Fox dissent, Justice Breyer said that the FCC’s failure to address the issue of small broadcasters’ difficulty in complying with the new indecency policy would have been arbitrary and capricious had the agency adopted said policy via notice-and-comment rulemaking. Justice Scalia blew this off, stating in a note something to the effect of “we’ve never conflated notice-and-comment rulemaking requirements with arbitrary-and-capricious review of an agency’s adjudications.” But it seems to me that Fox‘s interpretation of State Farm (which, as you note, was a rulemaking case) could easily be read to apply to an agency policy change adopted via notice-and-comment rulemaking. (This interpretation of Fox, incidentally, is the one that has given many of us admin/FCC lawyers the most cause for concern.)
June 2, 2009, 2:58 pmAughtSix says:
Perhaps this is a bit of a tangent but here goes…
Does that mean if an individual is fined for swearing on the radio (or on TV?) he becomes a prohibited person for the purposes of gun ownership? (Since he could have been imprisoned for greater than a year)
June 2, 2009, 3:14 pmSasha Volokh says:
sk: Yes, of course I mean only if someone sues. But if the agency doesn’t provide that sort of reasoned explanation, you can bet someone will sue!
June 2, 2009, 3:53 pm