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Holy F-Word, Batman:

Derek Muller notes that Justice Scalia's majority opinion in FCC v. Fox Television uses the term F-Word, with the F and the W capitalized. (It also uses S-Word, but that is a story for another day.) Any thoughts on why this was so, he asks?

Well, it looks like the FCC used this capitalization in its original decision, and the Second Circuit quoted it; Justice Scalia may have therefore followed the FCC's lead. (Note that generally the FCC commissioners' f-word capitalization patterns are mixed.) But that still leaves us with the question why the author of the particular FCC decision capitalized F-Word.

I can't answer the "why," but I too was intrigued, and found the following pattern in Lexis's US database (which covers many U.S. newspapers):

  • (caps("F-Word") and not allcaps ("F-Word")) and date(> 1/1/2005) finds 252 uses of F-Word, so capitalized -- but nearly of these are in titles of books, TV shows, and the like, where most words would be capitalized in any event. Thus, there are nearly zero non-title uses of F-Word.

  • nocaps("f-word") and date(> 1/1/2005) finds 1805 uses of f-word, so uncapitalized.

  • ("f-word" and not caps("F-Word") and not nocaps("f-word")) and date(> 1/1/2005) finds 2682 uses of "F-word."

Searching through court decisions yields roughly comparable ratios among the three options.

So "F-word" and "f-word" are roughly equally common in recent newspapers and in recent court decisions (with "F-word" slightly predominating), but "F-Word," outside titles, is extremely uncommon -- except apparently in some FCC decisions, and from there into the Supreme Court Reports.

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Glitteratae:

I take it that's the all-feminine plural Latinate analog of glitterati, brought to us by Justice Scalia in FCC v. Fox Television. The reason for the all-feminine plural, I take it, is that the offenders at issue in these particular broadcasts were Cher and Nicole Richie. A quick Google search reveals only 8 English-language pages that used the term before the opinion came down. The search also reveals that glitterata Ann Althouse beat me to much of this observation.

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Is Scalia's "F-Word" Opinion Good News for Obama?

While the headlines focus on the subject matter of today's 5-4 Supreme Court ruling rejecting the broadcaster's challenge to the FCC's decision to sanction the broadcast of "fleeting expletives," the real significance of FCC v. Fox Television Stations could be the decision's impact on administrative law. As Eugene notes below, the Court avoided the underlying First Amendment question. As a consequence, the decision turned on whether the FCC's adoption of a more restrictive policy with regard to expletives during prime time telecasts was "arbitrary and capricious."

In upholding the FCC's decision, the Court appeared to reject the principle that the burden on a federal agency to justify its policy choice is greater when the agency is altering a prior policy. One effect of this decision could be that it will be easier for the Obama Administration to reverse Bush Administration policies and revise regulations adopted in the past eight years. As Dan Farber explains:

One issue in today’s case was whether the FCC needed to give a fuller explanation of its action because it was modifying existing policy. Some courts have read a prior Supreme Court case to require more evidence and explanation when an agency is shifting policy. The Court rejected this view. Justice Scalia did say that the agency must acknowledge the change of policy and must take into account any evidence that was relied on to support the previous rule. But, according to the Scalia opinion, the fact that an agency is changing course does not require a harder look at its decision by a reviewing court. A concurring opinion by Justice Kennedy blurs the holding somewhat but Kennedy did join the majority opinion as well.

Particularly given the Kennedy concurrence, today’s ruling may not be a stark change from the approach taken by lower courts in reviewing agency policy shifts. But Justice Scalia’s opinion does make such shifts by agencies easier and at least at the margins should improve the agency’s chances of surviving judicial review. Today’s decision may or may not be good administrative law doctrine. But there’s no doubt that it will make life easier for the Obama administration.

While I need to digest the opinion a bit more, I think Professor Farber is correct on both points: This decision should make things easier for the Obama Administration even if the underlying doctrine is problematic. For a variety reasons, including my belief that delegations to agencies should be cosntrued narrowly, I have thought it proper to require agencies to provide fuller explanations when changing course. In particular, I think it is reasonable to require an agency to provide a reasoned explanation for the policy change, in addition to an explanation for the new policy itself. Of course this is not necessarily all that much of an added burden, but I am inclined to believe it is the proper approach. Perhaps I'll have more to say once I've had more time to think about it.

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FCC v. Fox Television Stations, Part I: The Late, Great George Carlin.

"I've also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** 'em." That's Cher, during the 2002 Billboard Music Awards, aired live on Fox. And here's Nicole Richie in the 2003 Billboard Music Awards, also aired on Fox: "Why do they even call it 'The Simple Life'? Have you ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple."

Viewers complained to the Federal Communications Commission, and in 2006, the FCC issued Notices of Apparent Liability for these two broadcasts and others, in which it explained that the expletives at issue were indecent. This was a change of course for the FCC, which previously hadn't gone after isolated expletives.

On Tuesday, the Supreme Court released its opinion in FCC v. Fox Television Stations, upholding this change of policy against an administrative-law challenge. Scalia wrote the opinion, and the quotes above, including the asterisks, are courtesy of him. (There's a First Amendment challenge in there somewhere, but the Court didn't reach it this time around.)

This is a potentially important administrative law case; Jonathan Adler has already blogged about the effects of the ruling on the Obama Administration's regulatory initiatives, and Eugene has blogged about Scalia's use of "glitteratae" and F-Word capitalization. I've decided to put up a series of posts giving the Deep Background of the case, from the original FCC policy and its litigation to the new FCC policy and its litigation, taking a detour through administrative law along the way to check out the standards for judging administrative agencies' changes of course. This will help to evaluate the various opinions in the Fox Television case.

So we'll begin in 1972, when the late, great George Carlin delivered his "Seven Words You Can Never Say on Television" routine. The live monologue appeared on his 1972 album Class Clown and, in revised form, on his 1973 album Occupation: Foole. (The 1973 version was recorded live at the now-defunct Circle Star Theater in San Carlos, California.) You can read a transcript of the routine here, and learn not only the seven words, but also the three auxiliary words! You can also watch similar versions of the monologue, say, here or here. I find it a bit over the top, but it definitely has funny bits, especially when you're not just reading the transcript.

UPDATE: I've corrected WBAI's frequency.

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FCC v. Fox Television Stations, Part II: The FCC v. Pacifica case.

This is part of a series of posts discussing the background of the Supreme Court's "fleeting expletives" case from last week, FCC v. Fox Television Stations.

Last time, I discussed George Carlin's Seven Dirty Words routine and the FCC's 1975 opinion that the routine was "indecent," though not obscene, and thus prohibited under the Communications Act of 1934, which bars "obscene, indecent, or profane language" on the radio. For those of you who haven't done so yet, you may want to take this opportunity to watch versions of the monologue here or here on YouTube.

The FCC later clarified that such language was not absolutely prohibited. Instead, the FCC was only trying, under a nuisance-type theory, to "channel it to times of day when children most likely would not be exposed to it," and its declaratory order about the Carlin monologue was "issued in a specific factual context." The D.C. Circuit reversed in 1977. According to Judge Tamm, who wrote the main opinion for the court, the FCC's prohibition was censorship, which is itself prohibited by the Act; and, "even assuming, arguendo, that the Commission may regulate non-obscene speech, nevertheless its Order is overbroad and vague."

Chief Judge Bazelon concurred, but decided that the statutory ban on FCC censorship was limited by the prohibition, also in the statute, on "obscene, indecent, or profane language." Thus, he found it necessary to actually reach the First Amendment argument; and, he decided, the Commission's definition of "indecent" speech was unconstitutional.

Judge Leventhal dissented: First, it was important to protect children from exposure to indecent language, but "even assuming that children's exposure to pornography is as inevitable as pornography itself, there is protection in disapproval, in the child's knowledge that the pornography that is seen and heard is not approved by parents or society."

And from the D.C. Circuit, the case went to the Supreme Court, which decided FCC v. Pacifica Foundation in 1978. (See here for the full text of the decision.)

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FCC v. Fox and the Demise of Local Broadcasting:

I have written at short and great length about the desirability of opening up more wireless frequencies to flexible uses, and in particular freeing up spectrum currently devoted to television broadcasting.

Now those opposed to indecency are helping the cause. As I noted in an op-ed yesterday, the Supreme Court's decision in FCC v. Fox affirms indecency regulations that make life worse for local stations.

Much ink has been spilled about the possible demise of print newspapers. Local broadcasters have been a bit better off. Their viewership has long been declining, but they had an ace in the hole – coverage of local events. If people wanted to witness live local events, they needed to watch a local television broadcaster. But that has started to change. Viewers, and thus advertisers, are being siphoned off by websites covering local issues and new local offerings from cable providers.

And now some local stations are halting coverage of live local events out of fear of FCC indecency fines that the Supreme Court upheld in FCC v. Fox. The FCC has long emphasized the importance of helping local broadcasters, but more recently it has focused on indecency – ruling that even a fleeting expletive can subject a broadcaster to fines in the tens of thousands of dollars for each fleeting expletive.

National networks can afford tape-delay systems, but many local broadcasters cannot. The problem, as Justice Breyer noted in his dissent in Tuesday’s opinion, is that the FCC’s indecency policy “places all broadcasters at risk when they broadcast fleeting expletives, including expletives uttered at public events.” And, indeed, some stations have responded to the FCC’s policy by ending their coverage of local live events.

Viewers who want to see live coverage of a contentious city council meeting, or (more likely) a celebration of a local sports team’s victory, thus may have better luck with a locally oriented website than with their local broadcaster, since the First Amendment forbids indecency penalties for the website but not for the broadcaster.

The Supreme Court in FCC v. Fox did not rule that the FCC’s policy was consistent with the First Amendment, so the courts still have to address the argument (made by Justice Thomas in a separate opinion) that there is no basis for lessened First Amendment protection of broadcasters. But as matters stand right now, local television broadcasters have a new disincentive to airing live local events – and viewers have less reason to watch local broadcasters.

As I suggested above, this is probably for the best. Only 14% of households rely on over-the-air television broadcasting (86% subscribe to cable or satellite). The government could reclaim and auction the spectrum used by broadcasters –- as it has auctioned most other frequencies –- and use a small fraction of that money to subsidize cable or satellite for those who cannot afford it. The reclaimed airwaves could then be opened to other uses that would allow for new and enhanced cellular and wireless internet services on newly plentiful frequencies. Many telecommunications policy analysts have long favored this option as the best fiscal and technological policy, but so far little has happened. Maybe the FCC’s revulsion at the “f-word” can achieve what fiscal and technological arguments couldn’t.

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FCC v. Fox Television Stations, Part III: Bono and the FCC's change of course.

This is part of a series of posts discussing the background of the Supreme Court's "fleeting expletives" case from last week, FCC v. Fox Television Stations.

In the last two posts (click here to see the whole string of posts, including this one, on a single page, in chronological order), I talked about the FCC's original policy against indecency on the airwaves, which the FCC explained and defended in its 1975 opinion against the George Carlin monologue (watch a version of it here if you haven't seen it already), and which the Supreme Court upheld in its 1978 case, FCC v. Pacifica Foundation.

Now let's flip ahead 26 years, to the FCC's opinion, "In the Matter of Complaints Against Various Broadcast Licensees Regarding Their Airing of the 'Golden Globe Awards' Program" (click here for a plain-text version).

On January 19, 2003, during NBC's airing of the Golden Globe Awards, Bono said: "This is really, really, fucking brilliant. Really, really great." The Parents Television Council complained, asking the FCC to levy monetary fines against the offending stations. The Chief of the Enforcement Bureau said the material was neither obscene nor indecent — and as to indecency, he found that Bono's language "did not describe, in context, sexual or excretory organs or activities and that the utterance was fleeting and isolated." PTC appealed to the Commission.

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FCC v. Fox Television Stations, Part IV: The FCC's new standards in action.

This is part of a series of posts discussing the background of the Supreme Court's "fleeting expletives" case from last week, 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 the last post, I discussed the FCC's 2004 rule on indecency, which altered its previous policy, mainly on the word "fuck." For something to be indecent, it has to, first, refer to sexual or excretory activities. And, second, it has to be patently offensive, in context, according to contemporary community standards. This second prong (heh-heh) involves analyzing (1) the explicitness or graphic nature of the description of sexual or excretory activities, (2) whether the material dwells on or repeats the description of these activities at length, and (3) whether it appears to pander or titillate or was presented for its shock value.

On the first prong, the FCC found that "fuck," in any form, always referred to sexual activities. And on the second prong, the FCC applied its three criteria and determined that its use on a nationally televised awards show was indeed patently offensive. (As an alternative ground, the FCC held that "fuck" was profane, another prohibited category.) Therefore, the material was "indecent," and thus banned by the statute, even if it was only mentioned once and accidentally. (The previous policy had announced that isolated occurrences were of no regulatory concern.) Nonetheless, the FCC declined to assess a fine, because it was announcing a change of policy and thought the regulated community ought to have more notice before being fined — among other reasons, lest there be a chilling effect on speech.

That was the 2004 policy. About two years later, in March 2006, to give greater guidance to the regulated community, the FCC released a lengthy document analyzing dozens of particular cases, representing thousands of complaints. The document was divided into three parts: (1) cases where it found indecency or profanity and proposed monetary fines against the licensees, (2) cases where it found indecency or profanity but didn't propose fines, and (3) cases where it didn't find indecency or profanity. Here are some examples — I'll focus on the ones involving speech rather than visual depictions of sex.

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