Mark Taticchi · July 2010
78 GEO. WASH. L. REV. 1102 (2010)
Imagine a local television station (W-UHOH), covering a minor league baseball game. The visiting team—the Blue Sox—has lost twenty-three straight games against the home team—the Yonkers—but is currently winning by four runs in the bottom of the ninth. After the final batter grounds out, the Sox players rush the field. W-UHOH’s camera zooms in on the players celebrating on the field, only to catch them yell “F——k the Yonkers!” at the opposing team’s dugout.
Susie is a five-year-old child in the Yonkers’ hometown who was watching the game on W-UHOH with her parents at the time of the expletive outburst. Susie’s parents promptly file a complaint with the Federal Communications Commission (“FCC” or “Commission”), which opens an investigation. Pursuant to that investigation, the FCC fines W-UHOH twenty million dollars and publicly reprimands the station. W-UHOH’s national broadcast affiliate drops the local channel almost immediately. The local station responds that it bleeps out expletives in prerecorded content but does not have—and cannot afford—the technology or personnel to bleep live programming. Its arguments are to no avail, however, so it shutters its offices, leaving a number of residents unemployed.
At first glance, the foregoing scenario may seem far-fetched. It is not. After the Supreme Court’s decision in FCC v. Fox Television Stations, Inc., the FCC retains the power to sanction broadcasters severely for single instances of “indecent” content broadcast over the airwaves, also known as “fleeting expletives.” As the first step in exercising this discretionary power, the FCC decides whether broadcast speech violates Congress’s ban on indecent content. If it finds the speech indecent, the Commission can punish the offending broadcaster in a number of ways. For example, the FCC can fine the broadcaster, revoke its license, or refuse to renew that license. These powers of sanction are not limited to national corporate broadcasters; as the introductory passage suggests, local and independent broadcasters likely will be among the hardest hit by such a policy because they do not have the resources to bleep out indecent material during live programming.
The Commission’s fleeting-expletives policy may ultimately be held unconstitutional. If that happens, this particular barrier to free expression will be removed. Yet the problem this Essay targets is not that single speech-chilling policy; rather, it is the process by which the Commission makes—and courts review—policies regulating free speech. The FCC must have understood both that this particular indecency policy would face a strong First Amendment challenge and that it might ultimately be held unconstitutional. Yet the Commission proceeded anyway.
This Essay proceeds in three parts. Part I begins by describing the traditional rules of constitutional avoidance as developed by the federal courts. Part II then proposes a solution to the problem identified above: a new statute that would require the FCC to explain the constitutional bases for its decisions and to adopt only those policies that it determines to be free from serious constitutional doubt. Part III addresses possible counterarguments.
