FEDERAL COMMUNICATIONS COMMISSION ET AL. v. FOX TELEVISION STATIONS, INC., ET AL.
No. 07-582
Supreme Court of the United States
Argued November 4, 2008—Decided April 28, 2009
556 U.S. 502
Carter G. Phillips argued the cause for respondents. With him on the brief for respondent Fox Television Stations, Inc., were R. Clark Wadlow, Jennifer Tatel, David S. Petron, and Quin M. Sorenson. Miguel A. Estrada, Andrew S. Tulumello, Matthew D. McGill, Richard Cotton, Susan Weiner, Robert Corn-Revere, Jonathan H. Anschell, Susanna M. Lowy, and Seth P. Waxman filed a brief for respondent NBC Universal, Inc., et al. Andrew Jay Schwartzman and Parul Desai filed a brief for respondent Center for Creative Voices in Media, Inc.*
*Briefs of amici curiae urging reversal were filed for the Alliance Defense Fund et al. by Benjamin W. Bull and Glen Lavy; for the American Center for Law and Justice et al. by Jay Alan Sekulow, Stuart J. Roth,
Briefs of amici curiae urging affirmance were filed for the ABC Television Affiliates Association by Wade H. Hargrove, Mark J. Prak, and David Kushner; for the American Civil Liberties Union et al. by Marjorie Heins, Steven R. Shapiro, and Christopher A. Hansen; for the California Broadcasters Association et al. by Kathleen M. Sullivan and Gregg P. Skall; for the Center for Democracy & Technology et al. by John B. Morris, Jr., and Sophia S. Cope; for Former FCC Commissioners and Officials by Timothy K. Lewis, Carl A. Solano, and Nancy Winkelman, and by Henry Geller, Newton N. Minow, and Glen O. Robinson, all pro se; for the National Association of Broadcasters et al. by Paul M. Smith, Marsha J. MacBride, Jane E. Mago, and Jerianne Timmerman; for Public Broadcasters by Robert A. Long, Jr., Jonathan D. Blake, and Jonathan L. Marcus; for Time Warner Inc. by Christopher Landau; and for the Thomas Jefferson Center for the Protection of Free Expression et al. by Robert M. O‘Neil and J. Joshua Wheeler.
Briefs of amici curiae were filed for the American Academy of Pediatrics et al. by Angela J. Campbell, James N. Horwood, and Tillman L. Lay; and for Free Press et al. by Marvin Ammori.
JUSTICE SCALIA delivered the opinion of the Court, except as to Part III-E.
Federal law prohibits the broadcasting оf “any ... indecent ... language,”
I. Statutory and Regulatory Background
The Communications Act of 1934, 48 Stat. 1064,
One of the burdens that licensees shoulder is the indecency ban—the statutory proscription against “utter[ing] any obscene, indecent, or profane language by means of radio communication,”
The Commission first invoked the statutory ban on indecent broadcasts in 1975, declaring a daytime broadcast of George Carlin‘s “Filthy Words” monologue actionably indecent. In re Citizen‘s Complaint Against Pacifica Foundation Station WBAI (FM), 56 F. C. C. 2d 94. At that time, the Commission announced the definition of indecent speech that it uses to this day, prohibiting “language that describes,
In FCC v. Pacifica Foundation, supra, we upheld the Commission‘s order against statutory and constitutional challenge. We rejected the broadcasters’ argument that the statutory proscription applied only to speech appealing to the prurient interest, noting that “the normal definition of ‘indecent’ merely refers to nonconformance with accepted standards of morality.” Id., at 740. And we held that the First Amendment allowed Carlin‘s monologue to be banned in light of the “uniquely pervasive presence” of the medium and the fact that broadcast programming is “uniquely accessible to children.” Id., at 748-749.
In the ensuing years, the Commission took a cautious, but gradually expanding, approach to enforcing the statutory prohibition against indecent broadcasts. Shortly after Pacifica, 438 U. S. 726, the Commission expressed its “inten-[tion] strictly to observe the narrowness of the Pacifica holding,” which “relied in part on the repetitive occurrence of the ‘indecent’ words” contained in Carlin‘s monologue. In re Application of WGBH Educ. Foundation, 69 F. C. C. 2d 1250, 1254, ¶ 10 (1978). When the full Commission next considered its indecency standard, however, it repudiated the view that its enforcement power was limited to “deliberate, repetitive use of the seven words actually contained in the George Carlin monologue.” In re Pacifica Foundation, Inc., 2 FCC Rcd. 2698, 2699, ¶ 12 (1987). The Commission determined that such a “highly restricted enforcement standard ... was unduly narrow as a matter of law and inconsistent with [the Commission‘s] enforcement responsibilities under Section 1464.” In re Infinity Broadcasting Corp. of Pa., 3 FCC Rcd. 930, ¶ 5 (1987). The Court of Appeals for the District of Columbia Circuit upheld this
Although the Commission had expanded its enforcement beyond the “repetitive use of specific words or phrases,” it preserved a distinction between literal and nonliteral (or “expletive“) uses of evocative language. In re Pacifica Foundation, Inc., 2 FCC Rcd., at 2699, ¶ 13. The Commission explained that each literal “description or depiction of sexual or excretory functions must be examined in context to determine whether it is patently offensive,” but that “deliberate and repetitive use ... is a requisite to a finding of indecency” when a complaint focuses solely on the use of nonliteral expletives. Ibid.
Over a decade later, the Commission emphasized that the “full context” in which particular materials appear is “critically important,” but that a few “principal” factors guide the inquiry, such as the “explicitness or graphic nature” of the material, the extent to which the material “dwells on or repeats” the offensive material, and the extent to which the material was presented to “pander,” to “titillate,” or to “shock.” In re Industry Guidance on Commission‘s Case Law Interpreting
In 2004, the Commission took one step further by declaring for the first time that a nonliteral (expletive) use of the F- and S-Words could be actionably indecent, even when the word is used only once. The first order to this effect dealt
The Commission first declared that Bono‘s use of the F-Word fell within its indecency definition, even though the word was used as an intensifier rather than a literal descriptor. “[G]iven the core meaning of the ‘F-Word,‘” it said, “any use of that word ... inherently has a sexual connotation.” Id., at 4978, ¶ 8. The Commission determined, moreover, that the broadcast was “patently offensive” because the F-Word “is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,” because “[i]ts use invariably invokes a coarse sexual image,” and because Bono‘s use of the word was entirely “shocking and gratuitous.” Id., at 4979, ¶ 9.
The Commission observed that categorically exempting such language from enforcement actions would “likely lead to more widespread use.” Ibid. Commission action was necessary to “safeguard the well-being of the nation‘s children from the most objectionable, most offensive language.” Ibid. The order noted that technological advances have made it far easier to delete (“bleep out“) a “single and gratuitous use of a vulgar expletive,” without adulterating the content of a broadcast. Id., at 4980, ¶ 11.
The order acknowledged that “prior Commission and staff action [has] indicated that isolated or fleeting broadcasts of the ‘F-Word’ ... are not indecent or would not be acted
II. The Present Case
This case concerns utterances in two live broadcasts aired by Fox Television Stations, Inc., and its affiliates prior to the Commission‘s Golden Globes Order. The first occurred during the 2002 Billboard Music Awards, when the singer Cher exclaimed, “I‘ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.” Brief for Petitioners 9. The second involved a segment of the 2003 Billboard Music Awards, during the presentation of an award by Nicole Richie and Paris Hilton, principals in a Fox television series called “The Simple Life.” Ms. Hilton began their interchange by reminding Ms. Richie to “watch the bad language,” but Ms. Richie proceeded to ask the audience, “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.” Id., at 9-10. Following each of these broadcasts, the Commission received numerous complaints from parents whose children were exposed to the language.
On March 15, 2006, the Commission released “Notices of Apparent Liability” for a number of broadcasts that the Commission deemed actionably indecent, including the two described above. In re Complaints Regarding Various Television Broadcasts Between Feb. 2, 2002 and Mar. 8, 2005, 21 FCC Rcd. 2664 (2006). Multiple parties petitioned the Court of Appeals for the Second Circuit for judicial review of
The order first explained that both broadcasts fell comfortably within the subject-matter scope of the Commission‘s indecency test because the 2003 broadcast involved a literal description of excrement and both broadcasts invoked the “F-Word,” which inherently has a sexual connotation. Id., at 13304, ¶ 16, 13323, ¶ 58. The order next determined that the broadcasts were patently offensive under community standards for the medium. Both broadcasts, it noted, involved entirely gratuitous uses of “one of the most vulgar, graphic, and explicit words for sexual activity in the English language.” Id., at 13305, ¶ 17, 13324, ¶ 59. It found Ms. Richie‘s use of the “F-Word” and her “explicit description of the handling of excrement” to be “vulgar and shocking,” as well as to constitute “pandering,” after Ms. Hilton had playfully warned her to “‘watch the bad language.‘” Id., at 13305, ¶ 17. And it found Cher‘s statement patently offensive in part because she metaphorically suggested a sexual act as a means of expressing hostility to her critics. Id., at 13324, ¶ 60. The order relied upon the “‘critically important‘” context of the utterances, id., at 13304, ¶ 15, noting that they were aired during prime-time awards shows “designed to draw a large nationwide audience that could be expected to include many children interested in seeing their favorite music stars,” id., at 13305, ¶ 18, 13324, ¶ 59. Indeed,
The order asserted that both broadcasts under review would have been actionably indecent under the staff rulings and Commission dicta in effect prior to the Golden Globes Order—the 2003 broadcast because it involved a literal description of excrement, rather than a mere expletive, because it used more than one offensive word, and because it was planned, 21 FCC Rcd., at 13307, ¶ 22; and the 2002 broadcast because Cher used the F-Word not as a mere intensifier, but as a description of the sexual act to express hostility to her critics, id., at 13324, ¶ 60. The order stated, however, that the pre-Golden Globes regime of immunity for isolated indecent expletives rested only upon staff rulings and Commission dicta, and that the Commission itself had never held “that the isolated use of an expletive ... was not indecent or could not be indecent,” 21 FCC Rcd., at 13307, ¶ 21. In any event, the order made clear, the Golden Globes Order eliminated any doubt that fleeting expletives could be actionably indecent, 21 FCC Rcd., at 13308, ¶ 23, 13325, ¶ 61, and the Commissiоn disavowed the bureau-level decisions and its own dicta that had said otherwise, id., at 13306-13307, ¶¶ 20, 21. Under the new policy, a lack of repetition “weigh[s] against a finding of indecency,” id., at 13325, ¶ 61, but is not a safe harbor.
The order explained that the Commission‘s prior “strict dichotomy between ‘expletives’ and ‘descriptions or depictions of sexual or excretory functions’ is artificial and does not make sense in light of the fact that an ‘expletive‘s’ power to offend derives from its sexual or excretory meaning.” Id., at 13308, ¶ 23. In the Commission‘s view, “granting an automatic exemption for ‘isolated or fleeting’ expletives unfairly forces viewers (including children)” to take “the first blow” and would allow broadcasters “to air expletives at all hours of a day so long as they did so one at a time.” Id., at 13309, ¶ 25. Although the Commission determined that Fox
Fox returned to the Second Circuit for review of the Remand Order, and various intervenors including CBS, NBC, and ABC joined the action. The Court of Appeals reversed the agency‘s orders, finding the Commission‘s reasoning inadequate under the Administrative Procedure Act. 489 F. 3d 444. The majority was “skeptical that the Commission [could] provide a reasoned explanation for its ‘fleeting expletive’ regime that would pass constitutional muster,” but it declined to reach the constitutional question. Id., at 462. Judge Leval dissented, id., at 467. We granted certiorari, 552 U. S. 1255 (2008).
III. Analysis
A. Governing Principles
The Administrative Procedure Act,
In overturning the Commission‘s judgment, the Court of Appeals here relied in part on Circuit precedent requiring a more substantial explanation for agency action that changes prior policy. The Second Circuit has interpreted the Administrative Procedure Act and our opinion in State Farm as requiring agencies to make clear “‘why the original reasons for adopting the [displaced] rule or policy are no longer dispositive’ as well as ‘why the new rule effectuates the statute as well as or better than the old rule.‘” 489 F. 3d, at 456-457 (quoting New York Council, Assn. of Civilian Technicians v. FLRA, 757 F. 2d 502, 508 (CA2 1985); emphasis deleted). The Court of Appeals for the District of Columbia Circuit has similarly indicated that a court‘s standard of review is “heightened somewhat” when an agency reverses course. NAACP v. FCC, 682 F. 2d 993, 998 (1982).
We find no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review. The Act mentions no such heightened standard. And our opinion in State Farm neither held nor implied that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance. That case, which involved the rescission of a prior regulation, said only that such action requires “a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.” 463 U. S., at 42 (emphasis added).2 Treating failures to act and
To be sure, the requirement that an agency provide reasoned explanation for its action would ordinarily demand that it display awareness that it is changing position. An agency may not, for example, depart from a prior policy sub silentio or simply disregard rules that are still on the books. See United States v. Nixon, 418 U. S. 683, 696 (1974). And of course the agency must show that there are good reasons for the new policy. But it need not demonstrate to a court‘s satisfaction that the reasons for the new policy are better thаn the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates. This means that the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate. Sometimes it must—when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 742 (1996). It would be arbitrary or capricious to ignore such matters. In such cases it is not
In this appeal from the Second Circuit‘s setting aside of Commission action for failure to comply with a procedural requirement of the Administrative Procedure Act, the broadcasters’ arguments have repeatedly referred to the First Amendment. If they mean to invite us to apply a more stringent arbitrary-and-capricious review to agency actions that implicate constitutional liberties, we reject the invitation. The so-called canon of constitutional avoidance is an interpretive tool, counseling that ambiguous statutory language be construed to avoid serious constitutional doubts. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988). We know of no precedent for applying it to limit the scope of authorized executive action. In the same section authorizing courts to set aside “arbitrary [or] capricious” agency action, the Administrative Procedure Act separately provides for setting aside agency action that is “unlawful,”
Judged under the above described standards, the Commission‘s new enforcement policy and its order finding the broadcasts actionably indecent were neither arbitrary nor capricious. First, the Commission forthrightly acknowledged that its recent actions have broken new ground, taking account of inconsistent “prior Commission and staff action” and explicitly disavowing them as “no longer good law.” Golden Globes Order, 19 FCC Rcd., at 4980, ¶ 12. To be sure, the (superfluous) explanation in its Remand Order of why the Cher broadcast would even have violated its earlier policy may not be entirely convincing. But that unnecessary detour is irrelevant. There is no doubt that the Commission knew it was making a change. That is why it declined to assess penalties; and it relied on the Golden Globes Order as removing any lingering doubt. Remand Order, 21 FCC Rcd., at 13308, ¶ 23, 13325, ¶ 61.
Moreover, the agency‘s reasons for expanding the scope of its enforcement activity were entirely rational. It was certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words, requiring repetitive use to render only the latter indecent. As the Commission said with regard to expletive use of the F-Word, “the word‘s power to insult and offend derives from its sexual meaning.” Id., at 13323, ¶ 58. And the Commission‘s decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach we sanctioned in Pacifica, 438
When confronting other requests for per se rules governing its enforcement of the indecency prohibition, the Commission has declined to create safe harbors for particular types of broadcasts. See In re Pacifica Foundation, Inc., 2 FCC Rcd., at 2699, ¶ 12 (repudiating the view that the Commission‘s enforcement power was limited to “deliberate, repetitive use of the seven words actually contained in the George Carlin monologue“); In re Infinity Broadcasting Corp. of Pa., 3 FCC Rcd., at 932, ¶ 17 (“reject[ing] an approach that would hold that if a work has merit, it is per se not indecent“). The Commission could rationally decide it needed to step away from its old regime where nonrepetitive use of an expletive was per se nonactionable because that was “at odds with the Commission‘s overall enforcement policy.” Remand Order, supra, at 13308, ¶ 23.
The fact that technological advances have made it easier for broadcasters to bleep out offending words further supports the Commission‘s stepped-up enforcement policy. Golden Globes Order, supra, at 4980, ¶ 11. And the agency‘s decision not to impose any forfeiture or other sanction precludes any argument that it is arbitrarily punishing parties without notice of the potential consequences of their action.
C. The Court of Appeals’ Reasoning
The Court of Appeals found the Commission‘s action arbitrary and capricious on three grounds. First, the court criticized the Commission for failing to explain why it had not previously banned fleeting expletives as “harmful ‘first
There are some propositions for which scant empirical evidence can be marshaled, and the harmful effect of broadcast profanity on children is one of them. One cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent broadcasts (and insulated from all other indecency), and others are shielded from all indecency. It is one thing to set aside agency action under the Administrative Procedure Act because of failure to adduce empirical data that can readily be obtained. See, e. g., State Farm, 463 U. S., at 46-56 (addressing the costs and benefits of mandatory passive restraints for automobiles). It is something else to insist upon obtaining the unobtainable. Here it suffices to know that children mimic the behavior they observe—or at least the behavior that is presented to them as normal and appropriate. Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives. Congress has made the determination that indecent material is harmful to children, and has left enforcement of the ban to the Commission. If enforcement had to be supported by empirical data, the ban would effectively be a nullity.
The Commission had adduced no quantifiable measure of the harm caused by the language in Pacifica, and we nonetheless held that the “government‘s interest in the ‘well-being of its youth’ ... justified the regulation of otherwise protected expression.” 438 U. S., at 749 (quoting Ginsberg v. New York, 390 U. S. 629, 639, 640 (1968)). If the Constitu-
The court‘s second objection is that fidelity to the agency‘s “first blow” theory of harm would require a categorical ban on all broadcasts of expletives; the Commission‘s failure to go to this extreme thus undermined the coherence of its rationale. 489 F. 3d, at 458-459. This objection, however, is not responsive to the Commission‘s actual policy under review—the decision to include patently offensive fleeting expletives within the definition of indecency. The Commission‘s prior enforcement practice, unchallenged here, already drew distinctions between the offensiveness of particular words based upon the context in which they appeared. Any complaint about the Commission‘s failure to ban only some fleeting expletives is better directed at the agency‘s context-based system generally rather than its inclusion of isolated expletives.
More fundamentally, however, the agency‘s decision to consider the patent offensiveness of isolated expletives on a case-by-case basis is not arbitrary or capricious. “Even a prime-time recitation of Geoffrey Chaucer‘s Miller‘s Tale,” we have explained, “would not be likely to command the attention of many children who are both old enough to understand and young enough to be adversely affected.” Pacifica, supra, at 750, n. 29. The same rationale could support the Commission‘s finding that a broadcast of the film Saving Private Ryan was not indecent—a finding to which the broadcasters point as supposed evidence of the Commission‘s inconsistency. The frightening suspense and the graphic violence in the movie could well dissuade the most vulnerable from watching and would put parents on notice of potentially objectionable material. See In re Complaints Against Various Television Licensees Regarding Their Broadcast on Nov. 11, 2004 of ABC Television Network‘s
Finally, the Court of Appeals found unconvincing the agency‘s prediction (without any evidence) that a per se exemption for fleeting expletives would lead to increased use of expletives one at a time. 489 F. 3d, at 460. But even in the absence of evidence, the agency‘s predictive judgment (which merits deference) makes entire sense. To predict that complete immunity for fleeting expletives, ardently desired by broadcasters, will lead to a substantial increase in fleeting expletives seems to us an exercise in logic rather than clairvoyance. The Court of Appeals was perhaps correct that the Commission‘s prior policy had not yet caused broadcasters to “barrag[e] the airwaves with expletives,” ibid. That may have been because its prior permissive policy had been confirmed (save in dicta) only at the staff level. In any event, as the Golden Globes order demonstrated, it did produce more expletives than the Commission (which has the first call in this matter) deemed in conformity with the statute.
D. Respondents’ Arguments
Respondents press some arguments that the court did not adopt. They claim that the Commission failed to acknowledge its change in enforcement policy. That contention is not tenable in light of the Golden Globes Order‘s specific declaration that its prior rulings were no longer good law, 19 FCC Rcd., at 4980, ¶ 12, and the Remand Order‘s disavowal of those staff rulings and Commission dicta as “seriously flawed,” 21 FCC Rcd., at 13308, ¶ 23. The broadcasters also try to recharacterize the nature of the Commission‘s shift,
The broadcasters also make much of the fact that the Commission has gone beyond the scope of authority approved in Pacifica, which it once regarded as the farthest extent of its power. But we have never held that Pacifica represented the outer limits of permissible regulation, so that fleeting expletives may not be forbidden. To the contrary, we explicitly left for another day whether “an occasional expletive” in “a telecast of an Elizabethan comedy” could be prohibited. 438 U. S., at 748-750. By using the narrowness of Pacifica‘s holding to require empirical evidence of harm before the Commission regulates more broadly, the broadcasters attempt to turn the sword of Pacifica, which allowed some regulation of broadcast indecency, into an administrative-law shield preventing any regulation beyond what Pacifica sanctioned. Nothing prohibits federal agencies from moving in an incremental manner. Cf. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 1002 (2005).
Finally, the broadcasters claim that the Commission‘s repeated appeal to “context” is simply a smokescreen for a standardless regime of unbridled discretion. But we have previously approved Commission regulation based “on a nuisance rationale under which context is all-important,” Pacifica, supra, at 750, and we find no basis in the
E. The Dissents’ Arguments
JUSTICE BREYER purports to “begin with applicable law,” post, at 547, but in fact begins by stacking the deck. He claims that the FCC‘s status as an “independent” agency sheltered from political oversight requires courts to be “all the more” vigilant in ensuring “that major policy decisions be based upon articulable reasons.” Ibid. Not so. The independent agencies are sheltered not from politics but from the President, and it has often been observed that their freedom from Presidential oversight (and protection) has simply been replaced by increased subservience to congressional direction. See, e. g., In re Sealed Case, 838 F. 2d 476, 507-508 (CADC) (Silberman, J.), rev‘d sub nom. Morrison v. Olson, 487 U. S. 654 (1988); Kagan, Presidential Administration, 114 Harv. L. Rev. 2245, 2271, n. 93 (2001); Calabresi & Prakash, The President‘s Power to Execute the Laws, 104 Yale L. J. 541, 583 (1994); Easterbrook, The State of Madison‘s Vision of the State: A Public Choice Perspective, 107 Harv. L. Rev. 1328, 1341 (1994). Indeed, the precise policy change at issue here was spurred by significant political pressure from Congress.4
Regardless, it is assuredly not “applicable law” that rulemaking by independent regulatory agencies is subject to heightened scrutiny. The
JUSTICE BREYER and JUSTICE STEVENS rely upon two supposed omissions in the FCC‘s analysis that they believe preclude a finding that the agency did not act arbitrarily. Neither of these omissions could undermine the coherence of the rationale the agency gave, but the dissenters’ evaluation of each is flawed in its own right.
First, both claim that the Commission failed adequately to explain its consideration of the constitutional issues inherent in its regulation, post, at 553-556 (opinion of BREYER, J.); post, at 542-546 (opinion of STEVENS, J.). We are unaware that we have ever before reversed an executive agency, not for violating our cases, but for failure to discuss them adequately. But leave that aside. According to JUSTICE BREYER, the agency said “next to nothing about the relation between the change it made in its prior ‘fleeting expletive’ policy and the First-Amendment-related need to avoid ‘censorship,‘” post, at 553. The Remand Order does, however, devote four full pages of small-type, single-spaced text (over 1,300 words not counting the footnotes) to explaining why the Commission believes that its indecency-enforcement rеgime (which includes its change in policy) is consistent with the First Amendment—and therefore not censorship as the term is understood. More specifically, JUSTICE BREYER faults the FCC for “not explain[ing] why the agency changed its mind about the line that Pacifica draws or its policy‘s relation to that line,” post, at 556. But in fact (and as the Commission explained) this Court‘s holding in Pacifica, 438 U. S. 726, drew no constitutional line; to the contrary, it expressly declined to express any view on the constitutionality of prohibiting isolated indecency. JUSTICE BREYER and JUSTICE STEVENS evidently believe that when an agency has
Second, JUSTICE BREYER looks over the vast field of particular factual scenarios unaddressed by the FCC‘s 35-page Remand Order and finds one that is fatal: the plight of the small local broadcaster who cannot afford the new technology that enables the screening of live broadcasts for indecent utterances. Cf. post, at 556-561. The Commission has failed to address the fate of this unfortunate, who will, he believes, be subject to sanction.
We doubt, to begin with, that small-town broadcasters run a heightened risk of liability for indecent utterances. In programming that they originate, their down-home local guests probably employ vulgarity less than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood. Their main exposure with regard to self-originated programming is live coverage of news and public affairs. But the Remand Order went out of its way to note that the case at hand did not involve “breaking news coverage,” and that “it may be inequitable to hold a licensee responsible for airing offensive
But never mind the detail of whether small broadcasters are uniquely subject to a great risk of punishment for fleeting expletives. The fundamental fallacy of JUSTICE BREYER‘s small-broadcaster gloomy scenario is its demonstrably false assumption that the Remand Order makes no provision for the avoidance of unfairness—that the single-utterance prohibition will be invoked uniformly, in all situations. The Remand Order made very clear that this is not the case. It said that in determining “what, if any, remedy is appropriate” the Commission would consider the facts of each individual case, such as the “possibility of human error in using delay equipment,” id., at 13313, ¶ 35. Thus, the fact that the agency believed that Fox (a large broadcaster that used suggestive scripting and a deficient delay system to air a prime-time awards show aimed at millions of children) “fail[ed] to exercise ‘reasonable judgment, responsibility and sensitivity,‘” id., at 13311, ¶ 33, and n. 91 (quoting Pacifica Foundation, Inc., 2 FCC Rcd., at 2700, ¶ 18), says little about how the Commission would treat smaller broadcasters who cannot afford screening equipment. Indeed, that they would not be punished for failing to purchase equipment they cannot afford is positively suggested by the Remand Order‘s statement that “[h]olding Fox responsible for airing indecent material in this case does not . . . impose undue burdens on broadcasters.” 21 FCC Rcd., at 13313, ¶ 36.
There was, in sum, no need for the Commission to compose a special treatise on local broadcasters.8 And JUSTICE
The Second Circuit did not definitively rule on the constitutionality of the Commission‘s orders, but respondents nonetheless ask us to decide their validity under the First Amendment. This Court, however, is one of final review, “not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). It is conceivable that the Commission‘s orders may cause some broadcasters to avoid certain language that is beyond the Commission‘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,” Pacifica, supra, at 743 (plurality opinion of STEVENS, J.). 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.
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The Second Circuit believed that children today “likely hear this language far more often from other sources than they did in the 1970s when the Commission first began sanctioning indecent speech,” and that this cuts against more stringent regulation of broadcasts. 489 F. 3d, at 461. Assuming the premise is true (for this point the Second Circuit did not demand empirical evidence) the conclusion does not necessarily follow. The Commission could reasonably conclude that the pervasiveness of foul language, and the coars
The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE THOMAS, concurring.
I join the Court‘s opinion, which, as a matter of administrative law, correctly upholds the Federal Communications Commission‘s (FCC) policy with respect to indecent broadcast speech under the
In Red Lion, this Court upheld the so-called “fairness doctrine,” a Government requirement “that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage.” 395 U. S., at 369,
Red Lion specifically declined to answer whether the First Amendment authorized the Government‘s “refusal to permit the broadcaster to carry a particular program or to publish his own views[,] . . . [or] government censorship of a particular program,” id., at 396. But then in Pacifica, this Court rejected a challenge to the FCC‘s authority to impose sanctions on the broadcast of indecent material. See 438 U. S., at 729-730, 750-751; id., at 742 (plurality opinion). Relying on Red Lion, the Court noted that “broadcasting . . . has received the most limited First Amendment protection.” 438 U. S., at 748. The Court also emphasized the “uniquely pervasive presence” of the broadcast media in Americans’ lives and the fact that broadcast programming was “uniquely accessible to children.” Id., at 748-749.
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. First, instead of looking to first principles to evaluate the constitu
Highlighting the doctrinal incoherence of Red Lion and Pacifica, the Court has declined to apply the lesser standard of First Amendment scrutiny imposed on broadcast speech to federal regulation of telephone dial-in services, see Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 127-128 (1989), cable television programming, see Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622, 637 (1994), and the Internet, see Reno v. American Civil Liberties Union, 521 U. S. 844, 867-868 (1997). “There is no justification for this apparent dichotomy in First Amendment jurisprudence. Whatever the merits of Pacifica when it was issued[,] . . . it makes no sense now.” Action for Children‘s Television v. FCC, 58 F. 3d 654, 673 (CADC 1995) (Edwards, C. J., dissenting). The justifications relied on by the Court in Red Lion
Second, even if this Court‘s disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions. Broadcast spectrum is significantly less scarce than it was 40 years ago. See Brief for Respondent NBC Universal et al. 37-38 (hereinafter NBC Brief). As NBC notes, the number of over-the-air broadcast stations grew from 7,411 in 1969, when Red Lion was issued, to 15,273 by the end of 2004. See NBC Brief 37-38; see also FCC Media Bureau Staff Research Paper, J. Berresford, The Scarcity Rationale for Regulating Traditional Broadcasting: An Idea Whose Time Has Passed 12-13 (Mar. 2005) (No. 2005-2). And the trend should continue with broadcast television‘s imminent switch from analog to digital transmission, which will allow the FCC to “stack broadcast channels right beside one another along the spectrum, and ultimately utilize significantly less than the 400 MHz of spectrum the analog system absorbs today.” Consumer Electronics Assn. v. FCC, 347 F. 3d 291, 294 (CADC 2003).
Moreover, traditional broadcast television and radio are no longer the “uniquely pervasive” media forms they once were. For most consumers, traditional broadcast media program
These dramatic changes in factual circumstances might well support a departure from precedent under the prevailing approach to stare decisis. See Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 855 (1992) (asking “whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification“); see also American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 302 (1987) (O‘Connor, J., dissenting) (“Significantly changed circumstances can make an older rule, defensible when formulated, inappropriate . . .“). “In
JUSTICE KENNEDY, concurring in part and concurring in the judgment.
I join Parts I, II, III-A through III-D, and IV of the opinion of the Court and agree that the judgment must be reversed. This separate writing is to underscore certain background principles for the conclusion that an agency‘s decision to change course may be arbitrary and capricious if the agency sets a new course that reverses an earlier determination but does not provide a reasoned explanation for doing so. In those circumstances I agree with the dissenting opinion of JUSTICE BREYER that the agency must explain why “it now reject[s] the considerations that led it to adopt that initial policy.” Post, at 550.
The question whether a change in policy requires an agency to provide a more reasoned explanation than when the original policy was first announced is not susceptible, in my view, to an answer that applies in all cases. There may be instances when it becomes apparent to an agency that the reasons for a longstanding policy have been altered by discoveries in science, advances in technology, or by any of the other forces at work in a dynamic society. If an agency seeks to respond to nеw circumstances by modifying its earlier policy, the agency may have a substantial body of data and experience that can shape and inform the new rule. In other cases the altered circumstances may be so new that the agency must make predictive judgments that are as difficult now as when the agency‘s earlier policy was first an
The question in each case is whether the agency‘s reasons for the change, when viewed in light of the data available to it, and when informed by the experience and expertise of the agency, suffice to demonstrate that the new policy rests upon principles that are rational, neutral, and in accord with the agency‘s proper understanding of its authority. That showing may be required if the agency is to demonstrate that its action is not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
These requirements stem from the administrative agency‘s unique constitutional position. The dynamics of the three branches of Government are well understood as a general matter. But the role and position of the agency, and the exact locus of its powers, present questions that are delicate, subtle, and complex. The Federal Government could not perform its duties in a responsible and effective way without administrative agencies. Yet the amorphous character of the administrative agency in the constitutional system escapes simple explanation.
If agencies were permitted unbridled discretion, their actions might violate important constitutional principles of separation of powers and checks and balances. To that end the Constitution requires that Congress’ delegation of lawmaking power to an agency must be “specific and detailed.” Mistretta v. United States, 488 U. S. 361, 374 (1989). Congress must “‘clearly delineat[e] the general policy‘” an agency is to achieve and must specify the “‘boundaries of [the] delegated authority.‘” Id., at 372-373. Congress must “‘lay down by legislative act an intelligible principle,‘” and the agency must follow it. Id., at 372 (quoting J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 409 (1928)).
Congress passed the
Where there is a policy change the record may be much more developed because the agency based its prior policy on factual findings. In that instance, an agency‘s decision to change course may be arbitrary and capricious if the agency ignores or countermands its earlier factual findings without reasoned explanation for doing so. An agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.
This is the principle followed in the Court‘s opinion in Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29 (1983). There, Congress directed the agency to issue regulations that would “‘meet the need for motor vehicle safety.‘” Id., at 33. The agency promulgated a regulation requiring cars to have passive-restraint systems—either airbags or automatic seat
Following a change in Presidential administration, however, the agency reversed course and rescinded the regulation. In doing so, the agency did not address its prior finding that airbags save lives. Id., at 47-48. Indeed, “[n]ot one sentence” of the agency‘s “rulemaking statement” in support of rescinding the regulation discussed the benefits of airbags. Id., at 48. This Court found the agency‘s rescission arbitrary and capricious because the agency did not address its prior factual findings. See id., at 49-51.
The present case does not raise the concerns addressed in State Farm. Rather than base its prior policy on its knowledgе of the broadcast industry and its audience, the FCC instead based its policy on what it considered to be our holding in FCC v. Pacifica Foundation, 438 U. S. 726 (1978). See In re Application of WGBH Educ. Foundation, 69 F. C. C. 2d 1250, 1254, ¶ 10 (1978) (“We intend strictly to observe the narrowness of the Pacifica holding“). The FCC did not base its prior policy on factual findings.
The FCC‘s Remand Order explains that the agency has changed its reading of Pacifica. The reasons the agency announces for this change are not so precise, detailed, or elaborate as to be a model for agency explanation. But, as the opinion for the Court well explains, the FCC‘s reasons for its action were the sort of reasons an agency may consider and act upon. The Court‘s careful and complete analysis—both with respect to the procedural history of the FCC‘s indecency policies, and the reasons the agency has given to support them—is quite sufficient to sustain the FCC‘s change of course against respondents’ claim that the agency acted in an arbitrary or capricious fashion.
The holding of the Court of Appeals turned on its conclusion that the agency‘s explanation for its change of policy was insufficient, and that is the only question presented here. I agree with the Court that as this case comes to us from the
JUSTICE STEVENS, dissenting.
While I join JUSTICE BREYER‘s cogent dissent, I think it important to emphasize two flaws in the Court‘s reasoning. Apparently assuming that the Federal Communications Commission‘s (FCC or Commission) rulemaking authority is a species of executive power, the Court espouses the novel proposition that the Commission need not explain its decision to discard a longstanding rule in favor of a dramatically different approach to regulation. See ante, at 514-515. Moreover, the Court incorrectly assumes that our decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), decided that the word “indecent,” as used in
I
“The structure of our Government as conceived by the Framers of our Constitution disperses the federal power among the three branches—the Legislative, the Executive, and the Judicial—placing both substantive and procedural limitations on each.” Metropolitan Washington Airports Authority v. Citizens for Abatement of Aircraft Noise, Inc., 501 U. S. 252, 272 (1991). The distinction among the branches is not always sharp, see Bowsher v. Synar, 478 U. S. 714, 749 (1986) (STEVENS, J., concurring in judgment) (citing cases), а consequence of the fact that the “great ordinances of the Constitution do not establish and divide fields of black
With the view that broadcast regulation “should be as free from political influence or arbitrary control as possible,” S. Rep. No. 772, 69th Cong., 1st Sess., 2 (1926), Congress established the FCC with the same measure of independence from the Executive that it had provided the FTC. Just as the FCC‘s Commissioners do not serve at the will of the President, see
II
The Court commits a second critical error by assuming that Pacifica endorsed a construction of the term “indecent,” as used in
The narrow treatment of the term “indecent” in Pacifica defined the outer boundaries of the enforcement policies adopted by the FCC in the ensuing years. The Commission originally explained that “under the legal standards set forth in Pacifica, deliberate and repetitive use [of expletives] in a
Even if the words that concern the Court in this case sometimes retain their sexual or excretory meaning, there are surely countless instances in which they are used in a manner unrelated to their origin. These words may not be polite, but that does not mean they are necessarily “indecent” under
III
For these reasons and those stated in JUSTICE BREYER‘S dissenting opinion, I would affirm the judgment of the Court of Appeals.
JUSTICE GINSBURG, dissenting.
The mainspring of this case is a Government restriction on spoken words. This appeal, I recognize, arises under the
More than 30 years ago, a sharply divided Court allowed the FCC to sanction a midafternoon radio broadcast of comedian George Carlin‘s 12-minute “Filthy Words” monologue. Id. Carlin satirized the “original” seven dirty words and repeated them relentlessly in a variety of colloquialisms. The monologue was aired as part of a program on contemporary attitudes toward the use of language. In re Citizen‘s Complaint Against Pacifica Foundation Station WBAI (FM), 56 F. C. C. 2d 94, 95 (1975). In rejecting the First Amendment challenge, the Court “emphasize[d] the narrowness of [its] holding.” Pacifica, 438 U. S., at 750. See also ante, at 539 (STEVENS, J., dissenting). In this regard, the majority stressed that the Carlin monologue deliberately repeated the dirty words “over and over again.” 438 U. S., at 729, 751-755 (appendix). Justice Powell, concurring, described Carlin‘s speech as “verbal shock treatment.” Id., at 757 (concurring in part and concurring in judgment).
The Pacifica decision, however it might fare on reassessment, see ante, at 535 (THOMAS, J., concurring), was tightly cabined, and for good reason. In dissent, Justice Brennan observed that the Government should take care before enjoining the broadcast of words or expressions spoken by many “in our land of cultural pluralism.” 438 U. S., at 775. That comment, fitting in the 1970‘s, is even more potent today. If the reserved constitutional question reaches this Court, see ante, at 529 (majority opinion), we should be mindful that words unpalatable to some may be “commonplace” for others, “the stuff of everyday conversations,” 438 U. S., at 776 (Brennan, J., dissenting).
JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE SOUTER, and JUSTICE GINSBURG join, dissenting.
In my view, the Federal Communications Commission failed adequately to explain why it changed its indecency pol-
I
I begin with applicable law. That law grants those in charge of independent administrative agencies broad authority to determine relevant policy. But it does not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences. Federal Communications Commissioners have fixed terms of office; they are not directly responsible to the voters; and they enjoy an independence expressly designed to insulate them, to a degree, from “the exercise of political oversight.‘” Freytag v. Commissioner, 501 U. S. 868, 916 (1991) (SCALIA, J., concurring in part and concurring in judgment); see also Morrison v. Olson, 487 U. S. 654, 691, n. 30 (1988). That insulation helps to secure important governmental objectives, such as the constitutionally related objective of maintaining broadcast regulation that does not bend too readily before the political winds. But that agency‘s comparative freedom from ballot-box control makes it all the more important that courts review its decisionmaking to assure compliance with applicable provisions of the law—including law requiring that major policy decisions be based upon articulable reasons.
The law has also recognized that it is not so much a particular set of substantive commands but rather it is a process, a process of learning through reasoned argument, that is the antithesis of the “arbitrary.” This means agencies must follow a “logical and rational” decisionmaking “process.” Allentown Mack Sales & Service, Inc. v. NLRB, 522 U. S. 359, 374 (1998). An agency‘s policy decisions must reflect the reasoned exercise of expert judgment. See Burlington Truck Lines, supra, at 167 (decision must reflect basis on which agency “exercised its expert discretion“); see also Humphrey‘s Executor v. United States, 295 U. S. 602, 624 (1935) (independent agencies “exercise . . . trained judgment . . . ‘informed by experience‘“). And, as this Court has specified, in determining whether an agency‘s policy choice was “arbitrary,” a reviewing court “must consider whether the decision was based on a consideration of the
Moreover, an agency must act consistently. The agency must follow its own rules. Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U. S. 370, 389-390 (1932). And when an agency seeks to change those rules, it must focus on the fact of change and explain the basis for that change. See, e. g., National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 981 (2005) (“Unexplained inconsistency is” a “reason for holding an interpretation to be an arbitrary and capricious change from agency practice” (emphasis added)).
To explain a change requires more than setting forth reasons why the new policy is a good one. It also requires the agency to answer the question, “Why did you change?” And a rational answer to this question typically requires a more complete explanation than would prove satisfactory were change itself not at issue. An (imaginary) administrator explaining why he chose a policy that requires driving on the right side, rather than the left side, of the road might say, “Well, one side seemed as good as the other, so I flipрed a coin.” But even assuming the rationality of that explanation for an initial choice, that explanation is not at all rational if offered to explain why the administrator changed driving practice, from right side to left side, 25 years later.
In State Farm, a unanimous Court applied these common-sense requirements to an agency decision that rescinded an earlier agency policy. The Court wrote that an agency must provide an explanation for the agency‘s “revocation” of a prior action that is more thorough than the explanation necessary when it does not act in the first instance. The Court defined “revocation,” not simply as rescinding an earlier policy, cf. ante, at 514-515, but as “a reversal of the agency‘s former views as to the proper course,” State Farm, 463 U. S., at 41 (emphasis added). See also Verizon Communications Inc. v. FCC, 535 U. S. 467, 502, n. 20 (2002) (portion of Court‘s
At the same time, the Court described the need for explanation in terms that apply, not simply to pure rescissions of earlier rules, but rather to changes of policy as it more broadly defined them. But see ante, at 514-515. It said that the law required an explanation for such a change because the earlier policy, representing a “‘settled course of behavior[,] embodies the agency‘s informed judgment that, by pursuing that course, it will carry out the policies . . . best if the settled rule is adhered to.‘” State Farm, supra, at 41-42. Thus, the agency must explain why it has come to the conclusion that it should now change direction. Why does it now reject the considerations that led it to adopt that initial policy? What has changed in the world that offers justification for the change? What other good reasons are there for departing from the earlier policy?
Contrary to the majority‘s characterization of this dissent, it would not (and State Farm does not) require a ”heightened standard” of review. Ante, at 514 (emphasis added). Rather, the law requires application of the same standard of review to different circumstances, namely, circumstances characterized by the fact that change is at issue. It requires the agency to focus upon the fact of change where change is relevant, just as it must focus upon any other relevant circumstance. It requires the agency here to focus upon the reasons that led the agency to adopt the initial policy, and to explain why it now comes to a new judgment.
I recognize that sometimes the ultimate explanation for a change may have to be, “We now weigh the relevant considerations differently.” But at other times, an agency can and should say more. Where, for example, the agency rested its
That is certainly how courts of appeals, the courts that review agency decisions, have always treated the matter in practice. See, e. g., Pennsylvania Federation of Sportsmen‘s Clubs, Inc. v. Kempthorne, 497 F. 3d 337, 351 (CA3 2007); Yale-New Haven Hosp. v. Leavitt, 470 F. 3d 71, 79 (CA2 2006); Citizens Awareness Network, Inc. v. United States, 391 F. 3d 338, 352 (CA1 2004). But see NAACP v. FCC, 682 F. 2d 993, 998 (CADC 1982) (using word “heightened“). The majority‘s holding could in this respect significantly change judicial review in practice, and not in a healthy direction. But see ante, at 535-539 (KENNEDY, J., concurring in part and concurring in judgment). After all, if it is always legally sufficient for the agency to reply to the question “why change?” with the answer “we prefer the new policy” (even when the agency has not considered the major factors that led it to adopt its old policy), then why bother asking the agency to focus on the fact of change? More to the point, why would the law exempt this and no other aspect of an agency decision from “arbitrary, capricious” re-
Avoiding the application of any heightened standard of review, the Court in State Farm recognized that the APA‘s “nonarbitrary” requirement affords agencies generous leeway when they set policy. 463 U. S., at 42. But it also recognized that this leeway is not absolute. The Court described its boundaries by then listing cоnsiderations that help determine whether an explanation is adequate. Mirroring and elaborating upon its statement in Overton Park, 401 U. S. 402, the Court said that a reviewing court should take into account whether the agency had “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” State Farm, supra, at 43; see also Overton Park, supra, at 416.
II
We here must apply the general standards set forth in State Farm and Overton Park to an agency decision that changes a 25-year-old “fleeting expletive” policy from (1) the old policy that would normally permit broadcasters to transmit a single, fleeting use of an expletive to (2) a new policy that would threaten broadcasters with large fines for transmitting even a single use (including its use by a member of the public) of such an expletive, alone with nothing more. The question is whether that decision satisfies the minimal standards necessary to assure a reviewing court that such a change of policy is not “arbitrary, capricious, [or] an abuse of discretion,”
Thirty years ago, the Court considered the location of that constitutional line. In FCC v. Pacifica Foundation, 438 U. S. 726 (1978), the Court reviewed an FCC decision forbidding the broadcast of a monologue that deliberately and repeatedly uttered the expletives here at issue more than 100 times in one hour at a time of dаy when children were likely to hear the broadcast. Id., at 739. The Court held that the FCC‘s prohibition did not violate the First Amendment. But the Court divided 5 to 4. And two Members of the majority, Justices Powell and Blackmun, explicitly noted that the Court “does not speak to cases involving the isolated use of a potentially offensive word . . . as distinguished from the verbal shock treatment administered by respondent here.” Id., at 760-761 (Powell, J., concurring in part and concurring in judgment) (emphasis added). This statement by two Members of the majority suggested that they could reach a different result, finding an FCC prohibition unconstitutional, were that prohibition aimed at the fleeting or single use of an expletive.
The FCC subsequently made clear that it thought that Justice Powell‘s concurrence set forth a constitutional line
In 1983, the Commission again wrote that it understood the Court‘s decision in Pacifica to rest on the “‘repetitive occurrence of the “indecent” words in question.‘” And, again, the Commission explained that its regulation of fleeting or isolated offensive words would reflect Justice Powell‘s understanding of the First Amendment‘s scope. In re Application of Pacifica Foundation, 95 F. C. C. 2d 750, 760, ¶¶ 17-18. In 1987, the Commission once more explained that its “fleeting expletives” policy reflected the Court‘s decision in Pacifica. It said that, under its policy, “speech that is indecent must involve more than an isolated use of an offensive word,” adding that “we believe that under the legal standards set forth in Pacifica, deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.” In re Pacifica Foundation, 2 FCC Rcd. 2698, 2699, ¶ 13 (emphasis added). In another order that same year, the Commission stated that “the First Amendment dictate[s] a careful and restrained approach with regard to review of matters involving broadcast programming“; it then explained, citing Pacifica, that “[s]peech that is indecent must involve more than the isolated use of an offensive word.” In re Infinity Broadcasting, 2 FCC Rcd. 2705, 2705, ¶¶ 6-7 (emphasis added). And in 2001, in giving the industry guidance, the FCC once again said in respect to its regulation of indecent speech that it “must both identify a compelling interest for any regulation . . . and choose the least restrictive means to further that interest.” In re Industry Guidance on Commission‘s Cаse Law Interpreting
The FCC thus repeatedly made clear that it based its “fleeting expletive” policy upon the need to avoid treading too close to the constitutional line as set forth in Justice Powell‘s Pacifica concurrence. What then did it say, when it changed its policy, about why it abandoned this Constitution-based reasoning? The FCC devoted “four full pages of small-type, single-spaced text,” ante, at 526 (majority opinion), responding to industry arguments that, e. g., changes in the nature of the broadcast industry made all indecency regulation, i. e.,
These two sentences are not a summary of the FCC‘s discussion about why it abandoned its prior understanding of Pacifica. They are the discussion. These 28 words (repeated in two opinions) do not acknowledge that an entirely different understanding of Pacifica underlay the FCC‘s ear-
I have found one other related reference to Pacifica, but that reference occurs in an opinion written by a dissenting Commissioner. That dissenter said that the FCC had “‘fail[ed] to address the many serious [constitutional] concerns raised‘” by the new policy, while adding that the new policy was “‘not the restrained enforcement pоlicy encouraged by the Supreme Court in Pacifica.‘” Remand Order, supra, at 13331, 13334. Neither that Commissioner in his dissent, nor I in this dissent, claim that agencies must always take account of possible constitutional issues when they formulate policy. Cf. ante, at 516 (majority opinion). But the FCC works in the shadow of the First Amendment, and its view of the application of that Amendment to “fleeting expletives” directly informed its initial policy choice. Under these circumstances, the FCC‘s failure to address this “aspect” of the problem calls for a remand to the agency. Overton Park, 401 U. S., at 420-421.
Second, the FCC failed to consider the potential impact of its new policy upon local broadcasting coverage. This “aspect of the problem” is particularly important because the FCC explicitly took account of potential broadcasting impact. Golden Globe Order, supra, at 4980, ¶ 11 (“The ease with which broadcasters today can block even fleeting words in a live broadcast is an element in our decision“). Indeed, in setting forth “bleeping” technology changes (presumably lowering bleeping costs) as justifying the policy change, it
What then did the FCC say about the likelihood that smaller independent broadcasters, including many public service broadcasters, still would not be able to afford “bleeping” technology and, as a consequence, would reduce local coverage, indeed cancel coverage, of many public events? It said nothing at all.
The FCC cannot claim that local coverage lacks special importance. To the contrary, “the concept of localism has been a cornerstone of broadcast regulation for decades.” In re Broadcast Localism, 23 FCC Rcd. 1324, 1326, 1327, ¶¶ 3, 5 (2008). That policy seeks to provide “viewers and listeners . . . access to locally responsive programming including, but not limited to, local news and public affairs matter” id., at 1326, ¶ 3, and to ensure “diversity in what is seеn and heard over the airwaves,” ibid. That policy has long favored local broadcasting, both as a means to increase coverage of local events and, insofar as it increases the number of broadcast voices, as an end in itself. See, e. g., In re Reexamination of Comparative Standards for Noncommercial Educ. Applicants, 15 FCC Rcd. 7386, 7399, ¶ 29 (2000) (adopting a system for selecting applicants for broadcast channels that “would foster our goal of broadcast diversity by enabling the local public to be served by differing . . . licensees“); In re 2002 Biennial Regulatory Review, 18 FCC Rcd. 13620, 13644, ¶¶ 77, 79 (2003) (“We remain firmly committed to the policy of promoting localism among broadcast outlets. . . . A . . . measure of localism is the quantity and quality of local news and public affairs programming“).
Relevant literature supports the broadcasters’ financial claims. See, e. g., Ho, Taking No Chances, Austin American-Statesman, June 18, 2006, p. J1; Dotinga, Dirty-Word Filters Prove Costly, Wired.com, July 9, 2004, http://www.wired.com/entertainment/music/news/2004/07/64127; Stations, Cable Networks Finding Indecency Rules Expensive, Public Broadcasting Report, Aug. 4, 2006. It also indicates that the networks with which some small stations are affiliated are not liable for the stations’ local transmissions (unless the networks own them). Ho, supra, at J1; Public Stations Fear Indecency Fine Jump Means Premium Hikes, Public Broadcasting Report, July 7, 2006. The result
As one local station manager told the FCC:
“To lessen the risk posed by the new legal framework . . . I have directed [the station‘s] news staff that [our station] may no longer provide live, direct-to-air coverage” of “live events where crowds are present . . . unless they affect matters of public safety or convenience. Thus, news coverage by [my station] of live events where crowds are present essentially will be limited to civil emergencies.” App. 236-237 (declaration of Dennis Fisher).
What did the FCC say in response to this claim? What did it say about the likely impact of the new policy on the coverage that its new policy is most likely to affect, coverage of local live events—city council meetings, local sports events, community arts productions, and the like? It said nothing at all.
As to the first point, about the prevalence of vulgarity in small towns, I confess ignorance. But I do know that there are independent stations in many large and medium sized cities. See Television & Cable Factbook, Directory of Television Stations in Operation 2008. As to the second point, I too believe that coverage of local public events, if not news, lies at the heart of the problem.
I cannot agree with the plurality, however, about the critical third point, namely, that the new policy obviously provides smaller independent broadcasters with adequate assurance that they will not be fined. The new policy removes the “fleeting expletive” exception, an exception that assured smaller independent stations that they would not be fined should someone swear at a public event. In its place, it puts a policy that places all broadcasters at risk when they broadcast fleeting expletives, including expletives uttered at public events. The Remand Order says that there “is no outright news exemption from our indecency rules.” 21 FCC Rcd., at 13327, ¶ 71 (emphasis added). The best it can pro-
Had the FCC used traditional administrative notice-and-comment procedures,
III
The three reasons the FCC did set forth in support of its change of policy cannot make up for the failures I have discussed. Consider each of them. First, as I have pointed out, the FCC based its decision in part upon the fact that “bleeping/delay systems” technology has advanced. I have already set forth my reasons for believing that that fact, without more, cannot provide a sufficient justification for its policy change. Supra, at 556-561 and this page.
Second, the FCC says that the expletives here in question always invoke a coarse excretory or sexual image; hence it makes no sense to distinguish between whether one uses the relevant terms as an expletive or as a literal description. The problem with this answer is that it does not help to justify the change in policy. The FCC was aware of the coarseness of the “image” the first time around. See, e. g., Remand Order, supra, at 13308, ¶ 23 (asserting that FCC has always understood the words as coarse and indecent). And it explained the first time around why it nonetheless distinguished between their literal use and their use as fleeting expletives. See, e. g., In re Application of WGBH Educ. Foundation, 69 F. C. C. 2d, at 1254-1255, ¶¶ 10-11 (discussing First Amendment considerations and related need to avoid reduced broadcast coverage). Simply to announce that the words, whether used descriptively or as expletives, call forth similar “images” is not to address those reasons.
The Solicitor General sets forth one way in which the new policy might be more consistent with statutory policy. The indecency statute prohibits the broadcast of “any . . . indecent . . . language.”
In fact, the FCC found that the new policy was better in part because, in its view, the new policy better protects children against what it described as “the first blow” of broadcast indecency that results from the “‘pervasive‘” nature of broadcast media. It wrote that its former policy of “granting an automatic exemption for ‘isolated or fleeting’ expletives unfairly forces viewers (including children) to take ‘the first blow.‘” Remand Order, supra, at 13309, ¶ 25.
The FCC points to no empirical (or other) evidence to demonstrate that it previously understated the importance of avoiding the “first blow.” Like the majority, I do not believe that an agency must always conduct full empirical studies of such matters. Ante, at 519-520. But the FCC could have referred to, and explained, relevant empirical studies that suggest the contrary. One review of the empirical evidence, for example, reports that “[i]t is doubtful that children under the age of 12 understand sexual language and innuendo; therefore it is unlikely that vulgarities have any negative effects.” Kaye & Sapolsky, Watch Your Mouth! An Analysis of Profanity Uttered by Children on Prime-Time Television, 2004 Mass Communication & Soc‘y 429, 433 (Vol. 7) (citing two studies). The Commission need not have accepted this conclusion. But its failure to discuss this or any other such evidence, while providing no empirical evidence at all that favors its position, must weaken the logical force of its conclusion. See State Farm, supra, at 43 (explaining that an agency‘s failure to “examine the relevant data” is a factor in determining whether the decision is “arbitrary“).
The FCC also found the new policy better because it believed that its prior policy “would as a matter of logic permit broadcasters to air expletives at all hours of a day so long as
Finally, the FCC made certain statements that suggest it did not believe it was chаnging prior policy in any major way. It referred to that prior policy as based on “staff letters and dicta” and it said that at least one of the instances before it (namely, the Cher broadcast) would have been actionably indecent under that prior policy. Id., at 13306-13307, 13324, ¶¶ 20-21, 60. As we all agree, however, in fact the FCC did change its policy in a major way. See ante, at 517 (majority opinion). To the extent that the FCC minimized that fact when considering the change, it did not fully focus on the fact of change. And any such failure would make its decision still less supportable. See National Cable, 545 U. S., at 981.
IV
Were the question a closer one, the doctrine of constitutional avoidance would nonetheless lead me to remand the case. See United States v. Jin Fuey Moy, 241 U. S. 394, 401 (1916) (“A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score” (emphasis added)). That doctrine seeks to avoid unnecessary judicial consideration of constitutional questions, assumes that Congress, no less than the Judicial Branch, seeks to act within constitutional bounds, and thereby diminishes the friction between
Unlike the majority, I can find no convincing reason for refusing to apply a similar doctrine here. The Court has often applied that doctrine where an agency‘s regulation relies on a plausible but constitutionally suspect interpretation of a statute. See, e. g., Solid Waste Agency, supra, at 172-174; NLRB v. Catholic Bishop of Chicago, 440 U. S. 490, 506-507 (1979). The values the doctrine serves apply whether the agency‘s decision does, or does not, rest upon a constitutionally suspect interpretation of a statute. And a remand here would do no more than ask the agency to reconsider its policy decision in light of the concerns raised in a judicial opinion. Cf. Fullilove v. Klutznick, 448 U. S. 448, 551 (1980) (STEVENS, J., dissenting) (a holding that a congressional action implicating the Equal Protection Clause “was not adequately preceded by a consideration of less drastic alternatives or adequately explained by a statement of legislative purpose would be far less intrusive than a final determination that the substance of” that action was unconstitutional). I would not now foreclose, as the majority forecloses, our further consideration of this matter. (Of course, nothing in
V
In sum, the FCC‘s explanation of its change leaves out two critically important matters underlying its earlier policy, namely, Pacifica and local broadcasting coverage. Its explanation rests upon three considerations previously known to the agency (“coarseness,” the “first blow,” and running single expletives all day, one at a time). With one exception, it provides no empirical or other information explaining why those considerations, which did not justify its new policy before, justify it now. Its discussion of the one exception (technological advances in bleeping/delay systems), failing to take account of local broadcast coverage, is seriously incomplete.
I need not decide whether one or two of these features, standing alone, would require us to remand the case. Here all come together. And taken together they suggest that the FCC‘s answer to the question, “Why change?” is, “We like the new policy better.” This kind of answer, might be perfectly satisfactory were it given by an elected official. But when given by an agency, in respect to a major change of an important policy where much more might be said, it is not sufficient. State Farm, 463 U. S., at 41-42.
For these reasons I would find the FCC‘s decision “arbitrary, capricious, an abuse of discretion,”
With respect, I dissent.