Supreme Court upholds FCC ban on isolated expletives

[JURIST] The US Supreme Court [official website; JURIST news archive] Tuesday ruled [opinion, PDF] 5-4 in FCC v. Fox Television Stations [Cornell LII backgrounder; JURIST report] that the Federal Communications Commission (FCC) [official website] did not act arbitrarily and capriciously in changing its policy regarding fines for the broadcast of isolated expletives. In 2004 the FCC changed its longstanding policy, saying that it would no longer permit the use of isolated expletives on the air. The FCC issued a 2006 order stressing the ban on such one-time violations. Fox Television Stations, along with other broadcasters, brought a petition for review of the FCC order before the US Court of Appeals for the Second Circuit, which ruled [opinion, PDF] that the new policy was arbitrary and capricious under the Administrative Procedure Act [text] for failing to articulate a reasoned basis for its change in policy, vacating the FCC order. In a narrow ruling reversing the lower court decision, Justice Antonin Scalia wrote:

The Second Circuit believed that children today "likely hear this language far more often from other sources than they did in the 1970's when the Commission first began sanctioning indecent speech," and that this cuts against more stringent regulation of broadcasts. Assuming the premise is true (for this point the Second Circuit did not demand empirical evidence) the conclusion does not necessarily follow. The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children. In the end, the Second Circuit and the broadcasters quibble with the Commission's policy choices and not with the explanation it has given. We decline to "substitute [our] judgment for that of the agency," and we find the Commission's orders neither arbitrary nor capricious.
The Court did not rule on constitutional questions, leaving that issue open. Justices John Paul Stevens and Ruth Bader Ginsburg filed dissenting opinions, and Justice Stephen Breyer filed a dissenting opinion in which Stevens, Ginsburg, and Justice David Souter joined.

The Court also ruled [opinion, PDF] 7-2 in Cone v. Bell [Cornell LII backgrounder; JURIST report] that a federal habeas court has the power to recognize that a state court erred in holding that state law precludes reviewing a claim and that a federal habeas claim is not "procedurally defaulted" because it has been presented twice to the state court. The case was brought by a Tennessee death row inmate who alleges that authorities hid mitigating evidence during his murder trial. The US Court of Appeals for the Sixth Circuit ruled [opinion, PDF] against the petitioner Cone, finding "If the state court decides the petitioner's claims on an adequate and independent state ground, such as a state procedural rule, the petitioner's claims are considered procedurally defaulted and he is barred from seeking federal habeas relief." In vacating the lower court ruling and remanding, Stevens wrote:
After a complete review of the trial and postconviction proceedings, we conclude that the Tennessee courts' rejection of petitioner's Brady claim does not rest on a ground that bars federal review. Furthermore, although the District Court and the Court of Appeals passed briefly on the merits of Cone’s claim, neither court distinguished the materiality of the suppressed evidence with respect to Cone's guilt from the materiality of the evidence with respect to his punishment. While we agree that the withheld documents were not material to the question whether Cone committed murder with the requisite mental state, the lower courts failed to adequately consider whether that same evidence was material to Cone’s sentence.
Justice Clarence Thomas filed a dissenting opinion, joined by Scalia.

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