Court Ordered Remand May Force the Supreme Court to deal with the First Amendment Issue
In a 5-4 decision released today, the Supreme Court upheld the FCC’s so-called “fleeting expletives” policy which bans the radio and television broadcast of single so-called four-letter words that are considered indecent.
However, the narrow ruling of the Court stopped short of deciding whether the FCC’s change in policy violates the First Amendment. Justice Scalia’s majority opinion emphasized that it was dealing only with the question of whether the FCC’s new fleeting expletives policy was “arbitrary and capricious” as a matter of law. The majority determined that the FCC’s change in policy was “entirely rational” under the Administrative Procedure Act. In doing so, the Court reversed the decision of the Second Circuit Court of Appeals that had found the FCC’s new policy to be arbitrary and capricious and remanded the case to the Second Circuit for further review.