Jenner & Block

"Indecent Proposal: The FCC and Four-Letter Words,"

Partner Debbie L. Berman and Associate Wade A. Thomson discuss FCC v. Fox Television Stations, Inc., et al., in which the "Supreme Court is reviewing the 2nd U.S. Circuit Court of Appeals' decision from 2007 that the FCC's changed policy - to punish broadcasters for the utterance of a single four-letter word under some circumstances - was arbitrary and capricious under the Administrative Procedure Act (APA)." According to the authors, “the fundamental problem with the FCC policy is that it chills protected First Amendment speech because broadcasters are left to gamble on the whims of the FCC’s notion of whether expletives are ‘integral’ to the material.”  It is difficult to say how the Supreme Court might rule. It may avoid addressing the constitutional issues raised by this case, and instead resolve the matter “on narrow administrative law grounds, such as whether the FCC gave proper notice and explanation of its rule change.”