The U.S. Supreme Court has handed down its ruling in FCC vs. Fox Television Stations, the case that challenged the FCC’s new policy of levying fines even on “fleeting expletives” on television.
By one of those 5-4 decisions that have become common ever since Sam Alito joined the court, the Supreme Court upheld the FCC’s rule, finding that it is “neither arbitrary nor capricious.” The split was the usual one: the majority consisted of the four most conservative justices (Scalia, who wrote the majority opinion, Thomas, Alito, Roberts) plus the moderately conservative Kennedy, while the dissent was filed by Justice Stevens, joined by Ginsburg, Breyer, and Souter.
SCOTUSBlog has more on this case. Basically the court punted on the free-speech issues, with Scalia specifically saying that the decision was not concerned with the First Amendment questions, but merely with whether the FCC is allowed to change its rules. The majority ruled that the FCC provided sufficient explanation of why the rule-change isn’t arbitrary, and everything else is being saved for a future case.
Scalia, as expected, filled his decision with little shots at “the foul-mouthed glitteratae of Hollywood” and the notion that the FCC rule is not arbitrary because it’s aimed to counteract “the pervasiveness of foul language, and the coarsening of public entertainment in other media.” He even wrote that a future First Amendment challenge might succeed if the FCC bans “certain language that is beyond the Commission’s reach under the Constitution,” a clear indication that he doesn’t think any of George Carlin’s Words should be beyond the FCC’s reach. Clarence Thomas, who has more of a libertarian streak than Scalia (and both are more libertarian than George W. Bush’s two appointees, who are straight-up statist in their conservatism), seemed to express more doubts about the idea that the FCC has a right to regulate language.
The case will go back to lower courts, and if the First Amendment challenge ever reaches the SCOTUS, it’s hard to say what might happen: Scalia, Roberts and Alito are probably guaranteed votes for the FCC, but Kennedy and Thomas are less certain.