Federal Communications Commission v. Fox Television Stations, Inc.
The Supreme Court upheld the FCC's decision to punish even single, unscripted uses of curse words on live television, ruling that the agency adequately explained why it abandoned its old approach that let broadcasters off the hook for one-time slips.
The ruling means broadcasters face stricter indecency enforcement for fleeting expletives, though the Court left for another day whether the policy itself violates the First Amendment.
How it got here: The FCC found Fox's broadcasts indecent; the Second Circuit set that decision aside on administrative-law grounds; the FCC sought Supreme Court review.
The Case in Depth
What happened
Fox Television Stations aired two live award shows where celebrities Cher and Nicole Richie used curse words in passing, not as sexual descriptions. The FCC had long allowed a single "fleeting" expletive without penalty, but it reversed course in 2004 and found these broadcasts indecent, though it imposed no fines. Fox and other networks challenged the FCC's explanation for the change.
The question before the Court
Could the FCC start punishing even a single, fleeting curse word on live TV without violating the rules for how agencies must explain policy changes?
The Court's answer
Yes — the Supreme Court ruled the FCC adequately explained its decision to start punishing even a single, fleeting curse word on live broadcasts, so its policy change was not "arbitrary or capricious" under administrative law. The Court rejected the idea that agencies must give a more searching justification simply because they are changing course; it is enough that the new policy is legally permissible, supported by good reasons, and that the agency's conscious shift shows it believes the new approach is better.
The Court found the FCC's reasoning sound: curse words carry sexual connotations even when used as exclamations, and letting broadcasters use them once without penalty would likely encourage more such language. The Court did not decide whether this policy is constitutional under the First Amendment, since the lower court hadn't ruled on that question — that issue remains open for future litigation.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Television and radio broadcasters now face liability for a single sworn word during live broadcasts like award shows or news coverage, raising costs for bleeping technology and creating pressure to limit live coverage, especially for smaller stations that cannot afford delay equipment.
What changes now
The case returns to the Second Circuit, which had not yet decided whether the FCC's indecency policy violates the First Amendment. That constitutional question remains open and could return to the Supreme Court in a future case. Meanwhile, the FCC's stricter fleeting-expletive policy stands as a matter of administrative law, and broadcasters remain subject to indecency enforcement for isolated curse words during the restricted hours.
What this does not decide
The Court expressly declined to decide whether the FCC's indecency policy is constitutional under the First Amendment, since the Second Circuit had not ruled on that question. The decision only addresses whether the FCC adequately explained its policy change under administrative law, not whether the policy itself may be enforced consistent with free speech protections.
Concurrences and dissents
Concurrence — Justice Thomas
Justice Thomas agreed the FCC's policy survives administrative-law review but wrote separately to question the continued validity of Red Lion and Pacifica, the precedents giving the FCC constitutional authority to regulate broadcast content at all. He argued those cases rested on outdated factual assumptions about spectrum scarcity and broadcast pervasiveness that no longer hold true, and said he is open to reconsidering them in a future case.
Concurrence — Justice Kennedy
Justice Kennedy joined most of the majority opinion but wrote separately to explain when an agency's policy change requires more justification, particularly when the prior policy rested on factual findings that must be squarely addressed. He concluded this case did not raise those concerns because the FCC's original policy rested on its reading of a Supreme Court case, not on independent factual findings, so the FCC's explanation here was sufficient.
Dissent — Justice Stevens
Justice Stevens argued the majority wrongly treated the FCC as an executive agency free from added explanation duties, when it is better understood as an agent of Congress that should justify departing from a longstanding rule. He also argued the majority misread the Pacifica precedent, which was narrow and never held that any word with sexual or excretory origins is automatically indecent regardless of context.
Dissent — Justice Ginsburg
Justice Ginsburg agreed with Justice Breyer's dissent on administrative-law grounds but wrote separately to stress that the First Amendment looms over the case even though it wasn't decided here. She emphasized that the fleeting expletives at issue were spontaneous and emotional, unlike the deliberately repeated language at issue in Pacifica, and cautioned that words offensive to some are commonplace to others.
Dissent — Justice Breyer
“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.”Breyer's core objection that the FCC barely addressed why it changed its constitutional reasoning.
Justice Breyer, joined by three other justices, argued the FCC failed to adequately explain its change because it never addressed two critical matters: how the new policy relates to the First Amendment concerns that drove its old policy, and the impact of the new rule on small local broadcasters who cannot afford bleeping technology and might cut back on live news coverage. He would have affirmed the Second Circuit and sent the matter back to the agency for a fuller explanation.
How the Court got there
The legal reasoning, step by step
- The Court applied the Administrative Procedure Act's 'arbitrary or capricious' standard, which asks whether an agency examined the relevant evidence and gave a satisfactory explanation for its action, without requiring a court to second-guess the agency's judgment.
- The Court rejected the idea that policy changes require a heightened, more searching explanation than a brand-new policy would need; an agency need only show it is aware it changed course and that the new policy is reasonable, not that it is better than the old one.
- Applying that standard, the Court found the FCC adequately acknowledged its change, disavowed its prior fleeting-expletive approach as no longer good law, and gave rational reasons for regulating isolated expletives, including that curse words derive their offensiveness from sexual meaning regardless of repetition.
- The Court found the FCC did not need empirical proof that fleeting expletives harm children, reasoning that common-sense inferences about children mimicking observed behavior were sufficient to support the policy.
- The Court concluded the FCC's prediction that exempting single expletives would encourage more of them was a reasonable judgment entitled to deference, and that the agency's discretion to evaluate offensiveness case-by-case did not undermine its reasoning.
- Because the agency's explanation cleared the administrative-law bar, the Court found no basis to require more, and left unresolved whether the policy itself is constitutional under the First Amendment.
Doctrinal impact
Cases affected by this decision
Distinguishes State Farm (463 U. S. 29)
The Court said State Farm requires reasoned explanation only for factual-finding reversals, not a general heightened standard for all policy changes.