Written by Judith E. Schaeffer, Vice President, Constitutional Accountability Center

Although yesterday was Election Day, when Justice Ruth Bader Ginsburg referred to a “big elephant in the room” at the Supreme Court, she wasn’t talking about partisan politics. No, what Justice Ginsburg was referring to, and what the Justices were doing their best to avoid as they heard argument in FCC v. Fox Television Stations, was the significant free speech issues posed by the FCC’s recently adopted policy of considering the single utterance of a non-obscene vulgarity on a broadcast television show to be “indecent” and punishable.

As we discussed in our preview of the Fox argument, for more than two decades after the Supreme Court held that the FCC is permitted under the Constitution to regulate “indecent” speech on broadcast media, the agency did not take action against the broadcast of “fleeting expletives.” Instead, the FCC required repeated use of such language as a prerequisite to a finding of “indecency.” But several years ago, the FCC abruptly changed course, jettisoned the old rule, and began imposing fines on networks for even a single utterance of what Solicitor General Gregory Garre daintily called “the F-word” and “the S-word” in his remarks before the Court yesterday. However, the FCC has not always been consistent in holding that the utterance of such words is “indecent,” prompting Justice Ginsburg also to observe that “there seems to be no rhyme or reason for some of the decisions that the Commission has made.”

The networks challenged the FCC’s sudden policy change, and prevailed on administrative procedure grounds before the Second Circuit. The Court of Appeals held that the agency had failed to provide a sufficient justification for its change in position, and gave the FCC a chance to come back to the court with such justification. Having so ruled, the Court of Appeals did not need to decide the free speech issues also raised by the broadcasters, but did strongly suggest that the FCC would not be able to justify a ban on “fleeting expletives” that would pass muster under the First Amendment.

Rather than attempt to provide further justification for its “fleeting expletives” rule before the Second Circuit, the FCC sought and was granted review by the Supreme Court. It is difficult to predict from the Justices’ questioning yesterday how the Court will rule on the administrative law issue. But one thing did seem very clear: even if the Court does reverse the Second Circuit on that question, the Court does not seem inclined to take up the free speech issues at this time.

The Framers of the Bill of Rights put the Free Speech Clause front and center, including it among the first freedoms protected by those amendments. They recognized the importance in a free society of the ability of its people to express themselves without interference from the federal government. For now, however, in the Fox case, free speech considerations seem destined to remain the giant elephant in the room.