FCC v. Fox Television Stations, Inc. – Oral Argument – November 04, 2008

Media for FCC v. Fox Television Stations, Inc.

Audio Transcription for Opinion Announcement – April 28, 2009 in FCC v. Fox Television Stations, Inc.

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John G. Roberts, Jr.:

We will hear argument first this morning in Case 07-582, Federal Communications Commission versus Fox Television Stations.

Mr. Garre.

Solicitor General Garre.

Gregory G. Garre:

Thank you, Mr. Chief Justice, and may it please the Court: This case involves a challenge to the efforts of the Federal Communications Commission to carry out its statutory mandate under 18 U.S.C. 1464, and more even-handedly address indecent material that is broadcast directly into the home during the time of day when children are likely to be in the viewing audience.

After reconsidering its policy in this area, the Commission determined that an enforcement action may be appropriate in the case of indecent language that is isolated as well as repeated.

Because the Commission provided a reasoned explanation for that change in course, the court of appeals erred in invalidating its action under the Administrative Procedures Act.

Antonin Scalia:

Did it — did it reconsider its policy?

In the first order, I would — I would have gathered that it had, but its second order said basically, we’ve never had a policy that single use of these expletives is okay.

Which is it?

Are they changing their policy or not?

Gregory G. Garre:

They did change the policy, Justice Scalia, and the Commission directly acknowledged that in paragraph 12 of the Golden Globe Awards order, which is not reprinted in the petition appendix.

In that paragraph, the Commission said,

“We now depart from cases holding that isolated or fleeting use of the F-Word was not indecent. “

Antonin Scalia:

The latest order, the one that’s up here, says that all of the statements to that effect in the past were simply staff statements and that the Commission had never held to that effect before.

Gregory G. Garre:

Well, the court of appeals recognized, and we think correctly so, that the Commission did change its position on that.

The Commission had never brought an enforcement action against a broadcaster for the isolated use of an expletive, and the Commission made clear in the orders it issued in this case, beginning with the Golden Globe Awards order and the particular omnibus and remand orders before this Court, that it was taking a change in regulatory course in determining that it was appropriate to bring an enforcement action where there was an isolated incident of an expletive if the context suggested that it would be indecent in that situation.

Anthony M. Kennedy:

Well, is the agency’s position that its policy has changed or that it has not changed?

Gregory G. Garre:

That it has changed, Justice Kennedy, and the court of appeals recognized that at pages 20a to 21a of the decision.

And we think this Court has recognized–

Anthony M. Kennedy:

Well, the court recognized, but it seems to me the FCC — and this is what Justice Scalia’s questions go in part to — in the remand order at first it said its policy hadn’t changed.

Gregory G. Garre:

–Well, I think there were some statements, we would acknowledge that, in different places.

But if you go to the heart of where the FCC grappled with this, paragraph — paragraph 12 of the Golden Globe Awards order, it specifically disavowed its prior decisions in which it had said that isolated expletives would not warrant an enforcement action under 1464, and it specifically said,

“we are departing from our policy. “

We — after all, it didn’t impose–

Antonin Scalia:

But I think it rewrote that in its last order, and I think it even explained away the Golden Globe statement by saying it was not as categorical as it might appear.

Gregory G. Garre:

–I think if you look at maybe pages 82 to 83 of the petition appendix here, where we discuss that as well, I think it made clear with respect to the indecency finding involving the 2003 Billboard Music Awards and the 2002 Billboard Music Awards, that in applying its contextual analysis in the past it focused on whether or not expletives were repeated or dwelled upon.

In this case, the Commission determined that it was not going to be guided exclusively by that consideration and that it was going to take into account all contextual factors, including the explicit and graphic nature of the language used.

John G. Roberts, Jr.:

Do you think, in terms of our legal review, it makes a difference whether it’s a change or whether it’s a continuation of a prior policy?

Gregory G. Garre:

Certainly, I would be defending it if the Court thought that it wasn’t a change, and it would have been inappropriate for the Second Circuit to invalidate that as arbitrary and capricious.

We have — we think it was a change.

Gregory G. Garre:

The language that the Commission used indicated that it was departing from its prior understanding, and we are here defending — either way, we are here defending–

John G. Roberts, Jr.:

I guess my question is, do you think a different legal standard applies when an agency changes a prior position as opposed to articulating its position for the first time?

Gregory G. Garre:

–Well, this Court has said that it’s desirable for agencies to reconsider and to change its policy from time to time, but when–

Ruth Bader Ginsburg:

Wasn’t the Commission — the Commission asked the Second Circuit, said: We’ve changed our policy; we want you to remand the case to the Commission so the Commission can explain what its new policy.

I mean, isn’t that how this whole thing arose?

The case was in the Second Circuit and the Commission said it wanted to have an opportunity to explain its position more fully?

Gregory G. Garre:

–It is, and it did in the remand order reprinted in the petition appendix.

Mr. Chief Justice, I think either way the ultimate standard is arbitrary and capriciousness.

Now, the Respondents have focused on whether or not we have complied with the criteria that the Court has looked to in determining whether or not a change in agency position is arbitrary and capricious.

And we think that there are three factors here that must lead to the conclusion that it was not arbitrary and capricious.

One, we think that the Commission did directly acknowledge its change in position.

Two, the Commission provided a concrete explanation for that change.

And, three, that explanation is at a minimum plausible and consistent with the Commission’s statutory mandate.

This Court has never invalidated a change in agency position where those three factors have been present.

And if you look at the three principal justifications that the agency used in explaining its change in position, I think it’s absolutely clear that this was at a minimum a rational policy choice that the agency was committed — was permitted to take under the Administrative Procedures Act.

Ruth Bader Ginsburg:

One of the problems is that, seeing it in operation, there seems to be no rhyme or reason for some of the decisions that the Commission has made.

I mean, the “Saving Private Ryan” case was filled with expletives, and yet the film about jazz history, the words were considered a violation of the Commission’s policies.

So that there seems to be very little rhyme or reason to when the Commission says that one of these words is okay and when it says it isn’t.

Gregory G. Garre:

Well, we do think, of course, that there is rhyme or reason to its determination.

First, let me say that much of the vagueness type of arguments that the Respondents are making similar to your question could be made equally with respect to the Commission’s policy with respect to repeated utterances as well as isolated utterances.

If you take the “Saving Private Ryan” and the blues documentary example, those were repeatedutterances cases.

We are here because they challenged the Commission’s change in policy to go from repeated utterances to consider enforcement actions in the case of isolated expletives where they met its contextual analysis and where it was explicit, graphic, shocking or pandering in the context.

Now, I think certainly there are going to be situations and this Court has indicated that the vagueness inquiry doesn’t turn about coming up with hypotheticals at — at the outer margins of the standard.

I think in the Pacifica case our reading of the Court’s decision is similar to the D.C. Circuit’s reading of that decision in the Action for Children’s Television case, that implicit in the Court’s decision in Pacifica was that it rejected a vagueness challenge to the Commission’s definition of “indecency”, which is the same definition that the Commission is applying today.

John G. Roberts, Jr.:

I suppose the most difficult case for you is the “Early News” case where you have just a fleeting expletive, unlike “Saving Private Ryan” and the others.

I mean, how do you distinguish the “Early News” case from the ones before us?

Gregory G. Garre:

The Commission has determined that news programming would be treated differently, with greater restraint, because of the different values present in that situation.

John G. Roberts, Jr.:

So the same — if you had a news report about Nicole Richey and the Cher exhibits, they — they could use the actual language, even though they can’t during the — the awards shows?

Gregory G. Garre:

Yes.

And, similarly, if there were a news report about the argument today in this Court and there were reports about the actual language used, that’s right.

Gregory G. Garre:

The Commission has exercised restraint in that area, recognizing that there are different values at stake than in the — in the utterance of indecent language during a prime-time broadcast where are a substantial number of children in the viewing audience.

For the broadcast in this case, up to 24 to 28 percent of the viewing audience comprised children under the age of 18.

This language was concededly gratuitous in the context it was used.

In the Nicole Richey example in 2003, there was an element of pandering as part of the dialogue consisted of Paris Hilton saying, FCC reasonably determined, was shocking and gratuitous and explicit and graphic; and, therefore, in the context in which it was presented, indecent under the agency’s longstanding definition of “indecency”.

Ruth Bader Ginsburg:

Are there only those two words in the FCC’s new policy or are there other words on the list?

Gregory G. Garre:

Well, certainly, the FCC’s action in this case focuses on the use of the F-Word and the S-Word, and I think everyone acknowledges that a word like the F-Word is one of the most graphic, explicit, and vulgar words in the English language for sexual activity.

And I think even the networks here concede that it was — its use was gratuitous and inappropriate here.

And that would control–

John Paul Stevens:

Isn’t it true that — isn’t it true that that is a word that often is used with — with no reference whatsoever to the — the sexual connotation?

Gregory G. Garre:

–It can be — it certainly can be used in a non-literal way.

It can be used in a metaphorical way, as Cher used it here, to say “F them” to her critics.

But the — the non-literal/literal distinction is not unique to the isolated expletives versus the repeated effort — expletives.

John Paul Stevens:

You think it’s equally — it’s equally subject to being treated as indecent within the meaning of the statute regardless of which meaning was actually apparent to everybody who listened to it?

Gregory G. Garre:

I wouldn’t say equally, Justice Stevens, but what we would say is that it can qualify as indecent under the — under the Commission’s definition, because even the non-literal use of a word like the F-Word, because of the core meaning of that word as one of the most vulgar, graphic, and explicit words for sexual activity in the English language, it inevitably conjures up a core sexual image.

Antonin Scalia:

Which is, indeed, why it’s used.

Gregory G. Garre:

Which is, indeed, why it’s used as an intensifier or as an insult, and it’s why the networks themselves — and this is reprinted, I believe, at 86 of the petition appendix — have a 24-hour rule that the F-Word generally should not be use on TV.

John G. Roberts, Jr.:

But that is an entirely voluntary — I mean, the Commission would have no objection if the F-Word were used on a regular basis after 10:00 o’clock?

Gregory G. Garre:

Outside of the safe harbor under this Court’s decision, the — the Commission recognizes that networks can use indecent language.

Antonin Scalia:

Although they don’t, I gather.

Gregory G. Garre:

Although they don’t.

Their policies are not to use indecent language.

Antonin Scalia:

Because they find it offensive, I gather.

Gregory G. Garre:

Because I think they recognize that it contravenes community standards for appropriateness in the broadcast medium, and that — those policies are reprinted at pages 86a to 88a of–

Ruth Bader Ginsburg:

How are the contemporary community standards determined in this context?

Does the FCC survey any particular audience to find out what their standards are?

Gregory G. Garre:

–Well, first of all, the community standards are community standards for the broadcast medium.

This is set out a little bit at page 33 of the joint appendix at footnote 13.

Second of all, they look to community standards for the average listener.

And, third of all, the — the Commission applies its expressly — collective experience here, looking to statements from lawmakers, from courts, from broadcasters, from public interest groups, and from citizens to determine what is consistent with community standards.

And certainly the–

John G. Roberts, Jr.:

Well, I suppose the broadcasters’ own voluntary determination not to use that — that language 24 hours is a reflection of what they think about community standards.

Gregory G. Garre:

–Absolutely.

I think it is an irrefutable reflection of what they think the appropriate community standards are.

Anthony M. Kennedy:

Are you talking about community standards for broadcasting?

Gregory G. Garre:

Community standards for broadcasting, that’s right.

And, in that respect, this case is much different than the Reno case, for example, where one of the criticisms this Court had was uncertainty about what community standards would apply.

Another difference is — is that here you have the Commission, an expert agency, making these determining — making these determinations, drawing in part on the policies and practices of the regulated industry itself; for example, the self-imposed rule not to use the F-Word at particular times of day.

And, of course, you have the fact that broadcast television has always been subject to a lesser standard of First Amendment scrutiny.

Now–

John G. Roberts, Jr.:

Still, I gather that’s at issue with the constitutional questions.

Does that still have the same force today when the broadcast medium is only one of several that are — that are available?

In other words, it seems to me that the Commission might not be accomplishing terribly much if it regulates a particular medium when all sorts of other media, media, are available that don’t have the Commission’s oversight.

Gregory G. Garre:

–We think it is, and we think it is reflected in the Court’s cases.

Let me — and let me explain why.

But let me first say that obviously we think that this Court does not need to, and should not, delve into the constitutional issues in resolving the case before it today.

The only issue that we have presented and the only issue decided below is whether or not the Commission has provided a reasoned explanation of the Administrative Procedures Act.

Stephen G. Breyer:

Can I — can I ask?

You can go ahead.

Are you finished?

Gregory G. Garre:

Well, if — if I can answer the question as to the force of the Court’s precedents, this Court has repeatedly affirmed in cases like Sable, in cases like Reno, in cases like Turner and Denver Area, that broadcasting is subject to a different and lesser First Amendment standard.

The Commission in this case looked to the considerations that underlie that jurisprudential doctrine and concluded that they were still apposite, and that is at pages 108 to 110 of the petition appendix.

Most Americans still get their information and entertainment from broadcast TV.

Most children — broadcast TV is extremely accessible to children because all they have to do is turn it on, and then they have network shows that they can have access to.

And broadcast television is still broadcast in a way that invades the home, the place — the one place where people typically don’t expect to have uninvited, offensive–

John Paul Stevens:

Yes, but wasn’t the rationale for the lesser standard largely the scarcity of the frequencies?

Gregory G. Garre:

–I think that was the rationale in Red — Red Lion.

This is Court in Pacifica didn’t rely on that rationale.

John Paul Stevens:

But it relied on it in Red Lion?

Gregory G. Garre:

Yes.

I — as we read the decision, Justice Stevens — and I understand that you wrote the plurality decision there.

Gregory G. Garre:

But, as we read the decision, the Court did not rest so much on the scarcity rationale, but, yet, on the unique pervasiveness of broadcasting, the unique accessibility to children, and the fact that broadcasting invades the home in a way that other technologies do not.

Ruth Bader Ginsburg:

That was before the Internet.

Pacifica was in 1978.

Gregory G. Garre:

It was, Your Honor.

Now, in the Turner case this Court said at page 190 that broadcast medium is still the principal source of information in entertainment in affirming the lesser standard that this Court applies.

We actually think that the fact that there are now additional mediums like the internet and cable TV, if anything, underscores the appropriateness of a lower First Amendment standard or safety zone for broadcast TV, because Americans who want to get indecent programming can go to cable TV, they can go to the Internet.

But broadcast TV is, as Congress designed that to be, the one place where Americans can turn on the TV at 8:00 o’clock and watch their dinner and not be expected to be bombarded with indecent language, either in an isolated basis or repeated basis.

That’s a societal expectation that has grown up over the last 30 years since Pacifica.

And it would be a remarkable thing to adopt the world that the networks are asking you to adopt here today, where the networks are free to use expletives, whether in an isolated or repeated basis, 24 hours a day, going from the extreme example of Big Bird dropping the F-bomb on Sesame Street, to the example of using that word during Jeopardy or opening the episode of American Idol–

Stephen G. Breyer:

I just have a practical question.

I’m just curious about this.

What are the networks supposed to do, or the television stations?

They cover a lot of live events.

They’re not just sports events.

They’re also like but the Golden — you know, the Emmys, the Oscars, and you deal with a cross-section of humanity.

And my experience is some parts of that cross-section swear.

[Laughter]

So, what is it — what are they supposed to do when the event is live, and lo and behold, they have a few people in front of them who swear, using these words?

What is their — what can they do?

Gregory G. Garre:

–With respect to live entertainment programming, Justice Breyer, you can do what the networks now do, which is to have a tape delay which permits you to bleep out isolated or offensive–

Stephen G. Breyer:

So, what they — what they now — they now do this?

In other words, whenever they cover a baseball game, whenever they cover anything live, they have to have some kind of tape system or for the Emmys, everything is on tape and it’s all delayed five seconds?

Gregory G. Garre:

–No.

It varies based on the type of programming.

For example, the Commission has acknowledged — and this is at pages 94 to 95a of the petition appendix — that their — that breaking news coverage is different and that it will not approach it–

Stephen G. Breyer:

I’m not talking about breaking news coverage.

I guess I’m talking about, you know, any one of — they cover the wrestling matches, they cover — you see what I’m driving at.

And I would like to know what is the state of the art?

You are saying the state of the art is right now when I turn on my television set, they all use a delay.

Gregory G. Garre:

–Well, I don’t think — that’s not–

Stephen G. Breyer:

Or are you saying they all have to use a delay?

Gregory G. Garre:

–In a show like the Billboard Music Awards, they will use a delay.

And since the incidents in this case, the 2003 and 2002 instances, the networks have gotten more people who are on hand to bleep isolated expletives.

Antonin Scalia:

They had a 5-second delay at the time these things occurred, didn’t they?

Gregory G. Garre:

They did, and I think–

Antonin Scalia:

And it wasn’t — it wasn’t that they weren’t fast enough or something?

Gregory G. Garre:

–Well, if you look at the Nicole Richie example, they actually bleeped one word that was used, I believe–

Antonin Scalia:

Right, right.

Gregory G. Garre:

–before she got to the other two words.

But at that time they only had one person working the bleeping machine or whatever it is they call it.

[Laughter]

Antonin Scalia:

It depends on whom you are dealing with, right?

Gregory G. Garre:

I think that’s right.

But certainly there is an understanding that this is — that these isolated–

Stephen G. Breyer:

Did the FCC explain all this in its opinion when it said, we understand that now we’re going to have to — every incident is going to have to be — have a 5-second delay and they will have to have tapes, and we think it’s worth the cost?

Did they explain all that?

Gregory G. Garre:

–It explained that–

Stephen G. Breyer:

I didn’t see it.

Gregory G. Garre:

–in its decision in the petition appendix here as to the basis why enforcement action would be appropriate.

Because here you are dealing with individuals who have used inappropriate in the past — Nicole Richie had used inappropriate language in the past.

You had an inappropriate tape delay, you had inappropriate measures in place to ensure that expletives were not used, which in the Commission’s judgment meant that this would be an appropriate situation.

If you had a different context, say a sporting event where there is an isolated expletive as part of a post-game news interview, the Commission as it would under its context-based approach, would look to all the contextual factors and determine whether or not it was indecent in that situation.

Antonin Scalia:

This Paris Hilton incident was scripted.

The use of the indecent word was almost invited, wasn’t it?

Gregory G. Garre:

Certainly our view is that it was pandering and invited.

It could have been expected.

Ruth Bader Ginsburg:

Wasn’t there a different word?

Wasn’t there a euphemism in the script?

I thought there was a euphemism in the script.

Gregory G. Garre:

The euphemism in the script I think was “freaking”, and another euphemism for the S-Word, but they obviously departed from that.

Gregory G. Garre:

And I think the Commission–

Antonin Scalia:

But it was sort of an invitation.

I mean, before she was introduced, said,

“Now we’re on live television, you have to watch your mouth. “

or something like that.

Gregory G. Garre:

–That’s what Paris Hilton said.

I mean, I think the whole thing was set up to be pandering–

Antonin Scalia:

It was a setup.

Gregory G. Garre:

–to invite this kind of abuse, which is one of the contextual factors that the Commission looked at, along with the extremely shocking and graphic nature of using this language at 9:00 p.m. on an eastern night.

Antonin Scalia:

But you didn’t fine them, anyway, did you?

Gregory G. Garre:

We did not fine them because we exercised restraint in making — in attempting to make clear that the FCC going forward was going to consider isolated–

Ruth Bader Ginsburg:

Because you had gone from Pacifica until 2004 with a different policy, where this kind of thing would have been okay?

Gregory G. Garre:

–We had gone from Pacifica until 1987, approximately, in the Action for Children’s Television case, where the Commission determined that that approach limited only to the seven dirty words in Pacifica was unduly narrow and inconsistent with its enforcement responsibilities.

Ruth Bader Ginsburg:

Remind me about that, because there was — the statement that the networks don’t do this at all at the time of Action for Children’s Television, the fight was, was it going to be from midnight ’til whatever it was.

The networks wanted more hours for adult viewing.

They said the only hours that the Commission gave them were hours when most everybody is asleep.

Gregory G. Garre:

But I don’t — my understanding was that was not pertaining to use of the F-Word.

The networks’ policies are at 86 to 88a, the petition appendix, and described there.

The D.C. Circuit found with respect to that change in position that the Commission had supplied an adequate explanation under the APA simply by saying that its prior practice, enforcement practice, was unduly narrow and not consistent with its enforcement responsibility.

We think that the even more detailed explanation here clearly satisfies the APA standard that applied to the Commission’s change in position.

John Paul Stevens:

Maybe I shouldn’t ask this, but is there ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious, very, very funny?

Some of these things —-

[Laughter]

–you can’t help but laugh at.

Is that — is that a proper consideration, do you think?

Gregory G. Garre:

Yes, insofar as the Commission takes into account whether it’s shocking, titillating, pandering–

Antonin Scalia:

Oh, it’s funny.

I mean, bawdy jokes are okay if they are really good.

[Laughter]

Gregory G. Garre:

–Well, my point is that we will take it into account, but I think you can recognize the potentially greater harmful impact on children where you have celebrities using particularly graphic, vulgar, explicit, indecent language as part of the comedic routine during a show that children are comprising a substantial part of the viewing audience.

Gregory G. Garre:

And that is one of the factors that is appropriate under this Court’s decision in Pacifica and the Commission’s policy to take into account the time of day and the viewing audience.

Stephen G. Breyer:

Could you review me to one thing in the record if it’s there, or just tell me.

I did find an explanation for the agency deciding that “fleeting” is not going to be an automatic exemption.

They’ve talked about that.

What I didn’t find is an explanation for a second thing, which had to do with their first prong of their former test, and that was the distinction that used to be made between using these words as swear words and using them as descriptive words.

Now that, I think, showed up in their former policy because they said if they were used as a swear word we are not going to go after them, at least not immediately.

So that had to do with prong 1, not prong 2.

Gregory G. Garre:

Right.

Stephen G. Breyer:

So is there an explanation why they made that change?

Gregory G. Garre:

Well, prong 1 hasn’t changed, Justice Breyer, since the time–

Stephen G. Breyer:

It hasn’t?

Gregory G. Garre:

–of Pacifica.

It has not.

It’s the same explanation, whether descriptions or depictions of sexual or excretorial organs or activities, the same definition before the Court in Pacifica.

And as the Pacifica monologue makes clear, there were many both literal and non-literal uses of the F-Word and S-Word and other words in that monologue.

So, I think the Commission’s position is this kind of language has always been indecent, which is — what has changed is it’s now going to consider enforcement action when is it’s used in an isolated basis on a contextbased approach.

If I can reserve–

Ruth Bader Ginsburg:

May I just ask one question?

It’s about the bottom line of your brief.

This whole argument has an air of really futility, because the Second Circuit more than tipped its hand when it said: And even as they gave a reasoned explanation, we have grave doubts whether this would be constitutional.

You suggested in your brief a remand for briefing and a hearing in the Second Circuit on the constitutional issue.

So, is there a way that we can say, well, really, this issue that’s before us now is ignoring the big elephant in the rule, room; we have to get to that anyway?

Gregory G. Garre:

–Well, that approach would be consistent with this Court not deciding issues that haven’t been decided below and the general practice of constitutional avoidance.

Now, the Second Circuit at three different places in its decision, on page 2a and page 35a, and at the end of its decision, made clear that it was not deciding the constitutional issues.

Judge Laval who dissented didn’t say anything about the constitutional issues.

So we certainly want another crack at those issues before the Second Circuit, and Respondents after all are not simply asking this Court to hold the regulation of isolated expletives is unconstitutional, but that any broadcast indecency regulation is unconstitutional; and at a minimum before this Court entertains that kind of radical constitutional shift, it ought to have the benefit of a court of appeals decision which actually decides those issues.

Ruth Bader Ginsburg:

Could that be — could that be done without deciding this APA or are we forced to decide that?

Gregory G. Garre:

Well, we think the Court is forced to decide that because that’s the basis that the court of appeals has invalidated the Commission’s action.

The Court should reject that decision which is incorrect under the APA and send it back for consideration of the networks’ other arguments.

John G. Roberts, Jr.:

Thank you, General Garre.

John G. Roberts, Jr.:

Mr. Phillips.

Carter G. Phillips:

Thank you, Mr. Chief Justice, and may it please the Court: I think I would like to start with Justice Scalia’s narrowest question in terms of the easiest way to resolve this case, which is did the FCC in its remand order in fact recognize that it had made a change in policy and therefore dealt forthrightly with the fact that it had made a change in policy.

While it is true that the Second Circuit was prepared to accept the idea that the Commission had changed, the reality is you will read that opinion without any ability to discern that.

And the need–

David H. Souter:

Yes, but doesn’t — doesn’t the ability to discern it come from the reasons given for not assessing fines?

They said: We are not assessing fines.

This is something new, and this is in effect a warning to everybody that things have changed.

Isn’t that a pretty clear indication that they are adopting a new policy?

Carter G. Phillips:

–It — well, that they are in fact adopting a new policy, I think that is probably right, Justice Souter.

I think the problem here is that ordinarily when you are in fact forthrightly changing your policy it is incumbent upon the agency to say: We are changing our policy, we recognize we are changing our policy, and here is the explanation for why we are changing our policy.

Antonin Scalia:

Are they — are they supposed to be more virtuous than courts?

Carter G. Phillips:

Yes.

Antonin Scalia:

I mean, courts all the time, you know, distinguish prior cases by saying,

“well, you know, it was dictum, or we didn’t really hold that and whatnot. “

And I read their opinion as somewhat the same — somewhat the same thing.

They acknowledge at the end, and that’s why they didn’t impose a fine, that although this, you know, nothing that they had done up till now — although their staff had — would have misled anybody; still and all, it wasn’t all that clear, and therefore we won’t impose a fine.

It seems to me–

Carter G. Phillips:

The only thing that’s strikingly different about that, Justice Scalia, is they are very express in dealing with issue in the Golden Globes order, which–

Antonin Scalia:

–It–

Carter G. Phillips:

–General Garre specifically identifies.

It’s interesting, when you say where is it in the order under review when they say they are going to do that, he says look in paragraph 12 of the Golden Globes order.

And Justice Ginsburg is absolutely right: this case came to the Second Circuit; the Commission said No, send it back; give us a full opportunity to explain exactly what we are doing.

Thy take it back and they come in and they don’t deal with this issue.

Antonin Scalia:

–Well — it was also, they said, you know, we sort of made this change without getting comments from the affected parties.

Carter G. Phillips:

That was part of it.

Antonin Scalia:

Give us a chance to receive comments and then — and then explain.

Carter G. Phillips:

And then provide a final reviewable order from the Commission, presumably that defends in all respects that decision.

But as I say–

John G. Roberts, Jr.:

What the Commission said is that the prior decisions or guidance was seriously flawed and we reaffirmed that it was appropriate to disavow it.

It seems to me that is recognizing a change and rejecting it.

John G. Roberts, Jr.:

It’s at page 82a.

Carter G. Phillips:

–Right.

All — all I am suggesting, Mr. Chief Justice, is that there is equally an opposite language in which the Commission — and the Second Circuit acknowledged this, too — in which the Commission seems to back off whether or not it thinks it has made a change in this particular order.

And it seems unreliable–

John G. Roberts, Jr.:

That seems to me to be the same question that I asked your friend: does it matter?

Don’t we look at the Commission’s order and determine whether it’s a reasonable explanation, whether they view it as a change or not?

It seems to me that they kind of said you can view it as a change because the staff had these decisions, and there was dicta; or it’s not a change.

But the point — important point is whether or not they provided a reasonable explanation for their current position.

Carter G. Phillips:

–This Court said in State Farm that when an agency changes its position it is incumbent upon the agency to provide more of an explanation in that context than — than if it were adopting the position in the first instance.

So I think yes, if there is–

John G. Roberts, Jr.:

What it says in State Farm — what it says in State Farm is that an agency’s view of what is in the public interest may change either with or without a change in circumstances.

Carter G. Phillips:

–Right.

John G. Roberts, Jr.:

The reason there is a change is they looked at it and they decided it was wrong.

Carter G. Phillips:

Yes.

Well, I — I think it — we wouldn’t be having this debate if the Commission had simply dealt with this issue in the same forthright fashion that it did with respect to the Golden Globes order.

But even if the Court accepts the idea that there is a change, it seems to me quite clear that the Commission has not even remotely satisfied its — its obligation to demonstrate that that change is not arbitrary and capricious.

And I think–

John G. Roberts, Jr.:

You agree it’s enough of a justification for the change that they think the other policy was wrong?

They don’t have to say circumstances have changed, the facts are different; it’s enough to say,

“well, whatever the Commission used to thing, we think differently? “

Carter G. Phillips:

–And then explain why.

John G. Roberts, Jr.:

And then explain why.

Carter G. Phillips:

And that goes into what I think is the next point that I would like to make which is the answer to the Justice Breyer’s question, which is where in the opinion does the Commission explain the change in position with respect to the — to the first prong of the indecency standard, which is whether or not these words inherently mean either sexual or excretory activities; and there, it seems to me, there is a — whether there is a change or not, the reality is that from 1978 until 2004 this kind of language was used routinely, without the Commission remotely suggesting that every time it was used, it necessarily had a particular meaning.

And then suddenly in 2004, this language has changed its tone completely, and there is no explanation for what is different or what is the reason for adopting that particular view.

The fact is that the reading of that is so fundamentally at odds with the way the Court–

Antonin Scalia:

They said that.

They gave the reason for their current belief.

They said even when it is used just as a swear word or as an expletive, the reason it has its impact is precisely because it refers to these excretory or sexual activities; that’s what — that’s what gives — gives it its zing.

Carter G. Phillips:

–This Court expressly said in Cohen v California, in talking about exactly the same word, that it cannot plausibly be maintained that this vulgar allusion would conjure up such — up such psychic stimulation.

And if the Court would say that in 1970, it applies with even more force in 2008.

John G. Roberts, Jr.:

But that’s not the Commission’s position.

The Commission’s position here is not when these words were used, people necessarily thought of a literal meaning; instead, its position is that the reason these words shocked is because of its association with the literal meaning.

That’s a different question than what was being addressed in Cohen.

Carter G. Phillips:

Well, all that Cohen says is that you cannot immediately jump — you — it wouldn’t even remotely strike you that the reason the language is being used is for its particular sexual meaning.

John G. Roberts, Jr.:

Then why — why do you think the F-Word has shocking value or emphasis or force?

Carter G. Phillips:

The same reason the S-Word does; it’s because in some circles it is inappropriate.

John G. Roberts, Jr.:

Because it is associated with sexual or excretory activity.

That’s what gives it its — its force.

Carter G. Phillips:

I mean, I — to say that, I suppose you can say it, but I don’t understand on what basis.

There is no empirical support for that.

There’s no–

Antonin Scalia:

Of course there is.

Carter G. Phillips:

–anything in the record that remotely suggests that.

Antonin Scalia:

Don’t use golly waddles in — instead of the F-Word.

[Laughter]

Carter G. Phillips:

People use all kinds of euphemisms for it, and nobody blinks about it.

The point is — is that for 20-some years the Commission didn’t draw that inference, didn’t reach that conclusion and nothing has changed over those 20-some years.

David H. Souter:

Well, one thing has changed.

One thing has changed, I think, from the record.

And let me ask you whether if the Commission had given this explanation it would in your judgment satisfy the arbitrary and capricious standard?

What if the Commission said, you know, our touchstone under prong 1 is community broadcast standards.

And we have assumed over the years that people really didn’t get too exercised by the usage we have permitted.

But we are now getting all this mail from people who are very angry about it, and they find it extremely offensive.

And therefore, I guess our prior community broadcast standards were wrong.

We weren’t taking into consideration the way people actually felt.

Now we know how they felt, because of the mail we are getting and we are changing our policy for that reason.

Leaving aside the Constitutional sufficiency of that, in the matter of arbitrary and capricious standards, would it satisfy it?

Carter G. Phillips:

I think it probably would, if all you are doing is looking at just the sort of raw Administrative Procedure Act standard, as it would normally apply to non-content.

David H. Souter:

Well, the raw APA standard issue is what we’ve got here.

Carter G. Phillips:

Well, I — I don’t think that’s a fair way to — to look at this case.

Carter G. Phillips:

Because I don’t see how you can — it seems to me a completely artificial inquiry to look at this as you’re regulating the price of oil going through a pipeline.

At the end of the day you are regulating the content of speech, and therefore the First Amendment ought to inform everybody’s assessment of what can the Commission do as it moves–

David H. Souter:

If that’s–

Carter G. Phillips:

–In a more content-restrictive way.

David H. Souter:

–If that’s the case, then the concept of constitutional avoidance is — is somehow out of this case and similar First Amendment cases, because we are always going to — and I — when you say you really cannot separate that precisely, we were always going to be getting into the constitutional issue, either expressly because we accept your view or covertly because we said, boy, we know what’s around the corner.

And so, if–

Carter G. Phillips:

But that would only be–

David H. Souter:

–if we accept your argument, we have to change the constitutional avoidance doctrine.

Carter G. Phillips:

–No, I don’t think that’s exactly right, Justice Souter, because the constitutional avoidance doctrine is not going to be much of a problem obviously unless there is a grave constitutional threat.

So, it’s not every assertion of the existence of a constitutional issue that suddenly triggers withdrawal.

When you are dealing in this area, which is content regulation and restriction on the basis of content, it seems to me that’s inherently a First Amendment problem.

And when you are in that world, then it seems to me the agency, even in the APA context, has more of a responsibility, or at least the Court should say it has more of a responsibility to explain.

Antonin Scalia:

And I thought we’ve held that the Court can’t engage in such expansion of and additions to the Administrative Procedure Act.

I thought that was–

Carter G. Phillips:

Well, the Administrative Procedure Act expressly says–

Antonin Scalia:

–one of our landmark decisions that what it says, it says, and we cannot add additional procedures.

You are suggesting we add an additional procedure that when it deals with speech, the explanation has to be really good.

Carter G. Phillips:

–Well, the–

Antonin Scalia:

Not just–

Carter G. Phillips:

–The Administrative Procedure Act also says “not in accordance with law”, which also refers to other statutes and obviously the Constitution.

So, it’s not as though I am asking you to add more to what the — to the statute.

Antonin Scalia:

–You are asking for a higher standard than the APA–

Carter G. Phillips:

Yes, I am asking for a higher standard under the APA because we are talking about content-based restrictions on free speech.

John G. Roberts, Jr.:

How is that consistent with Vermont Yankee?

Carter G. Phillips:

Because it was not talking about restrictions on speech, Mr. Chief Justice.

John G. Roberts, Jr.:

So, you are saying that we add to the APA when we are dealing with a particular area.

Which of our cases–

Carter G. Phillips:

Well, it–

John G. Roberts, Jr.:

–Which of our cases supports that?

Carter G. Phillips:

–This Court hasn’t had to hold that in any particular context, but the reality is, as a logical matter, if you are thinking about — you know, there is an — a restriction on “in accordance with law”.

Carter G. Phillips:

The First Amendment is obviously with law, so you have that limitation.

And then you have–

John G. Roberts, Jr.:

Well, maybe sometime–

Carter G. Phillips:

–And in order to avoid those issues–

John G. Roberts, Jr.:

–to be in a position to argue your constitutional issue, but we can’t assume that you are right on the Constitution in applying the APA.

Carter G. Phillips:

–All I’m saying is that it seems to me a remarkably artificial inquiry, to look at this as if you are regulating the price of oil going through, to a pipeline as opposed to what you are talking about–

Antonin Scalia:

–You should have complained to the lower court about that.

You should have said, please don’t decide this on the APA issue.

This is a First Amendment case.

You should reach the constitutional issue.

Carter G. Phillips:

–But–

Antonin Scalia:

But you went on the APA issue, and then you come up here and say: I don’t want to — I don’t want to discuss the APA; I want to discuss, you know, the First Amendment.

Carter G. Phillips:

–Well, Justice Scalia, I am perfectly content to talk about the APA, because at the end of the day, the APA–

Antonin Scalia:

The APA simpliciter; not the APA, you know–

Carter G. Phillips:

–I like the more complicated version, but I am happy to deal with the simpliciter one as well.

[Laughter]

But the reality that goes back to Justice Breyer’s question, at the end of the day the important part of this is what explains this fundamental shift.

Now, I think Justice Souter, you know, has probably made a respectable argument on APA grounds.

David H. Souter:

Thank you.

[Laughter]

Carter G. Phillips:

But unfortunately that’s not the position that the FCC took.

Antonin Scalia:

–He does good stuff now and then.

[Laughter]

Carter G. Phillips:

I have nothing but the highest regard for him.

But the other — the other part of this case that seems to have gotten lost track of is that this is not a statute that — that the Commission has the responsibility to enforce.

This is a criminal statute.

This is section 1464.

And through section 503, the Commission doesn’t have broad-based discretion to define for itself these terms.

The Commission has to decide what is indecent within the meaning of a Federal criminal statute, which means we are entitled to the rule of lenity, which means we are entitled to an interpretation of that first prong which, in dealing with indecency, says that it has to describe or depict sexual activity.

John G. Roberts, Jr.:

Well, when you talk about the rule of lenity, I mean, the point is that this change — if there is a change in policy or whether it’s adequately explained — simply gets you in the door.

John G. Roberts, Jr.:

They say then, once you are there, we just look at all of the circumstances and the context.

So, we don’t — it seems to me in their enforcement decisions, their decision not to impose sanctions, their decision not to have this count against you in future proceedings, they are being very lenient.

Carter G. Phillips:

Well, they are being lenient in one sense.

I think you have to step back, Mr. Chief Justice, and recognize what the — what we’ve got here.

We are talking about an extraordinary in terrorem regime that the FCC has created.

And I would commend to you all the amicus briefs from the NAB, from the former FCC officials, and from others who describe in exquisite detail the chilling effect that this particular scheme may have.

To be sure, you know, Fox isn’t being immediately penalized by this, but to go back to Justice Breyer’s question of General Garre, what he said — you know, does everybody have everything on tape and delaying?

No, of course not.

And why not?

Because it may be one thing for Fox to be able to put a show like this on a delayed basis, but if you are dealing with a local television station that is just getting by hand-to-mouth, and they want to televise a football game, and in the middle of that football game some student decides to express himself in ways that nobody anticipated–

John G. Roberts, Jr.:

And this is where the context comes in.

At least with impressionable children, that’s dramatically different from saying here is an awards show, here is a celebrity, I want to listen to what they are going to say because I listen to their music, and he comes out with that, as opposed to a football game.

They know that, you know, somebody says a bad word in the middle of the interview.

The context makes all the difference in the world.

Carter G. Phillips:

–Well, I’m not sure that — I mean, I don’t remember the FCC being in a position to describe how children are able to perceive one set of uses of the word as opposed to another set of uses of the word.

But what I think this Court–

John G. Roberts, Jr.:

They perceive that.

They know.

I mean, it’s one thing to use the word in, say, Saving Private Ryan, when your arm gets blown off.

It’s another thing to do it when you are standing up at an awards ceremony.

Carter G. Phillips:

–You can’t seriously believe that the average nine-year-old, first of all, who is probably more horrified by the arm being blown off to begin with, but putting that aside, you — it cannot possibly be that the child has more of a reaction to that word in that context than if a young high school football player is running down the field screaming a particular expletive.

John G. Roberts, Jr.:

Why — the young football player is not a celebrity that they follow.

Carter G. Phillips:

The young high school player actually might be more of a celebrity in some communities than — at least than where I live, and–

John G. Roberts, Jr.:

The point is whether they are or not is the contextual determination that the FCC can undertake.

All they are saying is that just because it’s used once doesn’t mean you are out of the — out of the woods altogether.

Let’s look at it, and if it turns out there’s no — I mean, this is the point they make, that in one context, it’s completely gratuitous; in the other context, it’s not.

Carter G. Phillips:

–But the problem is, Mr. Chief Justice, once you open the door, then you end up with all of the vagueness and overbreadth problems that are inherent in this regime.

Antonin Scalia:

These arguments apply not just to the isolated, once-upon-a-time use, but even to continued use.

You could say the same thing about just filling a program with these expletives, right?

Carter G. Phillips:

Justice Scalia, you could say the same thing–

Antonin Scalia:

That’s not–

Carter G. Phillips:

–but we’re not saying the same thing.

Antonin Scalia:

–That’s not, I suppose, what you are arguing against here, is it?

Carter G. Phillips:

No, because the point we are making here is that we haven’t asked this Court to revisit Pacifica.

And the point is that when you move away from Pacifica, which is the verbal shock treatment formulation, and say, you know, that’s perfectly consistent with the First Amendment and with everything that agency decisionmaking requires, and say that’s all right — when you shift from that, which is an enormous switchover, and go into fleeting expletives, then it’s a fundamental — all we’re saying is that’s a fundamentally different issue and that implicates more serious First Amendment issues, because everybody knows what is something that is verbal shock treatment or at least we know how to stay pretty far away from it; whereas, if I say every fleeting expletive potentially exposes every broadcaster to $325,000 fines made solely at the discretion of five individuals, unelected, that impresses me, Your Honors, as simply an inappropriate problem, and one that just follows naturally, Mr. Chief Justice, from saying, well, all we are going to do is open the door.

Because once you open the door, it is clearly a Pandora’s box we are talking about.

John G. Roberts, Jr.:

Then why do your clients not use these words between 10:00 p.m. and 6:00 a.m.?

Carter G. Phillips:

Because it affects audience share.

There are some people–

John G. Roberts, Jr.:

Why do you think it affects audience share?

Carter G. Phillips:

–Because some people are offended it; not the whole community.

There are probably a lot of people who would actually prefer to have more of it.

But some–

John G. Roberts, Jr.:

If you can take that into consideration, why can’t the FCC make the same determination, that there may be some people offended by this, and if there are some people, as part of our statutory responsibility, we are going to look at it.

Not that they automatically impose–

Carter G. Phillips:

–But that’s a heckler’s veto.

John G. Roberts, Jr.:

–Not that they automatically impose a sanction, but that they’re going to look at it.

Carter G. Phillips:

Well, first of all, that’s a heckler’s veto, and there have been long holdings in this Court that suggest simply pandering to one small segment of the population is no way to enforce First Amendment rights.

So that’s — I mean, that’s my primary answer to that.

Antonin Scalia:

There goes Pacifica.

Carter G. Phillips:

No, I don’t think there goes Pacifica, because Pacifica was only one person–

Antonin Scalia:

Isn’t that a–

Carter G. Phillips:

–I’m sorry.

Antonin Scalia:

–Isn’t that a heckler’s veto?

Carter G. Phillips:

No.

What–

Antonin Scalia:

What if people like, you know, going on and on with expletives and offensive words?

Are those of us who are offended by that hecklers and you can’t take our positions into account because you’re giving effect to a heckler?

I mean — I don’t think so.

Carter G. Phillips:

–But the problem is that the Chief Justice’s question was: Why do we have a 24-hour rule.

Carter G. Phillips:

And the answer is: It’s one thing for us to voluntarily assume that.

I think it is a mistake, and I don’t know that — and I don’t think — I didn’t read anything in the Commission’s opinion that reflects it.

But they say that fact suddenly defines the community standards for purposes of what is indecent and what is not indecent.

That simply reflects our own best judgment about how to serve our audience.

John Paul Stevens:

If there is — if there is a change in the community standards, does that justify a change in the FCC’s policies?

And the second question and the reason I ask that is: Do you think today the community generally is more offended by these words or more tolerant of these words–

Carter G. Phillips:

Well–

John Paul Stevens:

–as compared to what Pacifica was concerned with?

Carter G. Phillips:

–I mean I — I believe that society is significantly more tolerant of these words today than it was in — 30 years ago.

Antonin Scalia:

Do you think your clients have had anything to do with that?

[Laughter]

Carter G. Phillips:

In — in the scheme of things, probably very, very little to do with that compared to the way the language is used.

Go to a baseball game, Justice Scalia.

You hear these words every — every time you go to a ballgame.

Antonin Scalia:

You do, indeed, but you don’t have them presented as something that is — is normal in polite company, which is what happens when it comes out in — in television shows.

This is a coarsening of manners that is — that is produced by — by the shows.

So I am — you know, I — I am not persuaded by the argument that people are more accustomed to hearing these words than they were in the past.

Carter G. Phillips:

But the — I mean I think what Justice Stevens is getting at is: What has changed over the last 30 years?

And if anything has changed, it would be exactly the opposite, which is they are going to be more and more tolerant of this language; not that they are less tolerant of this language.

And, therefore, there is even less reason for the Commission to have taken the position that it did in this particular context.

Antonin Scalia:

More tolerant or more used to hearing it?

Carter G. Phillips:

I think both.

Antonin Scalia:

Candidly, I think there is a difference.

Carter G. Phillips:

Well, I am not saying there is not a difference, but I am suggesting that there are — that the — that the change over time has — has made this less of a compelling argument than it would have been, at least in my judgment, in — in 1978.

I would like to make a couple of different, additional points.

Another thing that has changed since 1978 is that there is much more opportunity for parents to control access for their children because of the Vclip.

That’s available.

Second, in terms of this effort to try to lessen the coarsening of America–

Anthony M. Kennedy:

I’m not sure that works.

I haven’t looked at the statistics on one-parent families, working parents, and so forth.

Anthony M. Kennedy:

Those factors both have to be considered.

Carter G. Phillips:

–Well, but if you put in a V-chip, it doesn’t matter whether your parents are working or not.

The truth is if you had had a V-chip for the 2003 version of this, which would have said PGL, which is for language, children couldn’t have gotten on there whether the parents were at home or not.

The V-chip is a usable and feasible technology and is a less restrictive alternative than the one that we have on the — on the table under these particular circumstances.

The — I wanted to go back to the — to the statute, the fact that this is a criminal statute.

Again, the Commission is not arguing here for broad — recognizing, or accepting, or arguing for, that they have a broad delegation of authority.

They don’t have the authority to decide what indecency is.

Stephen G. Breyer:

And you were — you were pursuing the practical thing about the tapes, and so forth, when you got on to a different subject, which was the — the nature of the program.

I just wanted to be certain you are finished with what you wanted to say there.

I — because I am interested in the practical question of: Do all the stations have tapes?

And leave sports events out of it, and leave news out of it.

Are there other events that these small stations might want to cover that don’t have the tape or that now don’t use the tape; anything else you want to say about that?

Carter G. Phillips:

Well, I–

Stephen G. Breyer:

I am interested in the practical problem as part of this.

Where do I look to find out some facts?

Carter G. Phillips:

–Well, the NAB amicus brief actually has a pretty good description of a variety of different instances in which this has — has occurred.

And, of course, the NAB represents obviously the large networks but also all of the individual stations.

And that, to me at least, makes a compelling argument that you — you cannot simply have one rule that says: Let’s just impose additional costs on everybody.

Because the answer to that is that those stations will simply refuse to broadcast.

And to me the best illustration of it, and the one that the public interest, I would hope, would command or demand the Court take account of, is the Vermont public station that refused to broadcast a debate or — or allow a number of Senatorial candidates to participate in a debate because that candidate had used expletives in a previous public forum, and, therefore, didn’t think it could allow that broadcast and take that risk because it can’t afford to have the tape-delayed technology that you are talking about.

And — and that to me is the quintessential example.

But there are loads of them, and it’s just going to get worse once you decide to get past the notion that a fleeting expletive, no matter how it arises, requires to you justify it.

Because we went from a system that said: We will, in general, never condemn fleeting expletives to the system that exists now, which is we routinely condemn them unless we think its okay.

And that’s a system, it seems to me, this Court ought not to countenance.

It is embedded in the Second Circuit’s decision.

The Court should affirm that decision and vacate back to the Commission so that it can go forward — or to remand back to the Commission so it can do the best it can to try to come up with a justification that satisfies both the APA and the First Amendment that it has not done so far.

Ruth Bader Ginsburg:

Mr. Phillips, this — this is similar to the question that I asked General Garre.

The Commission asked for a remand so it could provide a reasoned explanation.

But you had or your clients had — in their complaint they made an APA claim as well as a First Amendment claim, didn’t they?

Carter G. Phillips:

Yes, we did.

Ruth Bader Ginsburg:

Yes.

Carter G. Phillips:

I mean it wasn’t a complaint.

Actually, it was — it was a petition for review–

Ruth Bader Ginsburg:

Correct.

Carter G. Phillips:

–going right to the Second Circuit.

Ruth Bader Ginsburg:

Yes.

Carter G. Phillips:

So it doesn’t have the same bill of particulars that you might otherwise have.

Ruth Bader Ginsburg:

You could have just done the First Amendment, but you — you did put the APA into it.

Carter G. Phillips:

Yes, Justice Ginsburg.

We — we do believe that the Commission changed its position, and — and, again, we had to file a separate petition for review from the remand order over and above the petition for review we filed from the first order.

So, you know, we took into account this assessment in saying we don’t think the agency had adequately justified its change in position.

John Paul Stevens:

May I ask this question, Mr. Phillips?

I guess in the — in the last analysis we are trying to decide what the word “indecent” means.

Carter G. Phillips:

Yes, Justice Kennedy.

John Paul Stevens:

And do you think that the word “indecent” can have — that — that a fleeting expletive could be not indecent, but the same words could be indecent if they are repeated several times?

Carter G. Phillips:

I think it — at least to me it’s hard.

I don’t think so, but I — I can understand that Pacifica could be read that way, although in pacifica, itself, George Carlin does, in fact, use the fleeting expletive in an explicitly sexual way at — at times.

But I — I think the hardest case, candidly, is the situation where you have a string of expletives, all of which are clearly not designed to reflect anything about sexual activity and what you do in that situation.

That is the hardest case.

John Paul Stevens:

Yes, but I — I am not — not sure I make my question as clear as I should.

If we are trying to define the term “indecent”–

Carter G. Phillips:

Yes.

John Paul Stevens:

–does the — does the number of times the word is used in a particular context make a difference in the definition?

Carter G. Phillips:

I apologize.

I didn’t — I misunderstood your question.

No, I don’t think so.

I think the question — the first prong of the indecency inquiry is whether or not the particular language used does, in fact, describe or depict sexual or excretory activities or organs.

And that’s the No. 1 inquiry.

And I don’t think the number of times in which you use it affects the–

John Paul Stevens:

As a matter of statutory definition, if a particular word can describe those activities, it is equally indecent if used for a different purpose?

Carter G. Phillips:

–I — I would have thought that, since you were dealing with a statute that is — that imposes criminal sanctions, that if you have those two alternative interpretions available, you have to choose the one that is more favorable to the defendant.

And, therefore, you would — you would say that the–

John Paul Stevens:

–would not be indecent.

That is the interpretation–

Carter G. Phillips:

–I am sorry?

John Paul Stevens:

–you should accept.

Let’s say because one interpretation of an ambiguous word would not be indecent, you are saying the rule of lenity in that sort of approach would require in a criminal case to just adopt that — that definition?

Carter G. Phillips:

That would be my argument, yes, Justice Stevens.

David H. Souter:

But that — I mean you are just — correct me if I am wrong, but your colloquy with Justice Stevens sort of is a way of phrasing the issue in the case.

Because you are saying, I think, prior to this — prior to the change, the Commission interpreted “indecency” in terms of indecent practice.

And what the Commission is now doing is defining “indecency” in terms of the meaning of a word.

It’s — it’s relatively going from saying indecency is a practice, i.e., a repetition of certain kinds of words, to saying “indecency” is — is the use of any word which is itself indecent.

Carter G. Phillips:

Well, I — I agree with that completely, Justice Souter.

No.

That is exactly how you can characterize it.

I mean it may not be the precise verbal formulation we used, but, candidly, that is it and essentially the way Judge Lebal looked at it.

And he just said at the end of the day, because I have to defer to the agency, I am going to let them have that interpretation.

But that is not the appropriate approach.

Antonin Scalia:

Let me ask about deferring there.

You seem to be suggesting that since there is a criminal penalty for a violation of this statute, the agency has no role in — in defining what — what the terms of the statute mean.

Carter G. Phillips:

Justice Scalia, the language of the statute itself would suggest that, because the statute says that the Commission may find violate — may impose certain enforcement actions for people who violate section 1464.

That, of course, is a criminal statute.

Therefore, it is not a statute that has been delegated to the agency’s broad discretion to decide what falls within that language.

It is within the agency’s discretion to choose a penalty that, in fact, enforces that criminal dictate.

And to go back to Justice Stevens’s position — I shouldn’t give it as your position, it is my position — but the point, I think, we were discussing, if you have a choice of two ways to read indecency, you have to read it in a way more favorable to the defendant, that precludes the approach that the government has taken in this particular case.

If there are no further questions, Your Honor, I would reserve.

John G. Roberts, Jr.:

Thank you, Mr. Phillips.

General Garre, you have two minutes remaining.

Gregory G. Garre:

Thank you, Mr. Chief Justice.

First, Justice Scalia, it’s on page 82-A of the petition appendix where the Commission acknowledges the change in the order at issue in this case.

Gregory G. Garre:

Justice Breyer, going back to your question about whether the Commission’s definition of indecency has changed, it is not and that is made clear at page 73-A of the petition appendix where the Commission says, quote, a long line of precedence indicates that the use of the F-Word for emphasis or as an intensifier comes within the subject matter scope of our indecency definition.

Stephen G. Breyer:

It explained — I mean, the change I saw was that previously the use of these words as a swear was treated differently from the use of these words as a description.

And that after the event, it’s not treated differently.

Gregory G. Garre:

It explains on page 74 why the Commission has determined that these words are indecent.

The Commission has only treated those literal and non-literal uses of these words as potentially indecent under its contextual analysis.

We think that Justice Ginsburg’s decision for the D.C. Circuit in the Action for Children’s Television case provides a road map for resolving this case, where the Court separately addressed the APA question of whether the agency had provided a reasonable explanation and then separated out the constitutional issues, which this Court need not address.

John Paul Stevens:

Could I ask one question that just occurred to me?

Do you think the use of the word dung, D-U-N-G, would be indecent?

Gregory G. Garre:

I think it would probably qualify under the subject matter definition, but it probably wouldn’t be patently offensive under community standards for broadcasting.

The one thing that can’t be disputed seriously in this case is that the F-Word is patently offensive under community standards for the broadcast medium.

This Court has reversed the decision below on the APA question presented and remand the case for consideration under–

Ruth Bader Ginsburg:

You have the S-Word in there too, and even Judge Leval says he didn’t understand why that word should be on the list.

Gregory G. Garre:

–Well, we certainly think that under community standards that that word is patently offensive as well.

And certainly, but we think that the F-Word itself is clearly patently offensive.

We think that the S-Word is patently offensive.

This Court did so — we think had that view in the Pacifica case as well, because that, of course, is one of the seven dirty words at issue in that case.

If there are no further questions.

John G. Roberts, Jr.:

Thank you, General.

The case is submitted.