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Unpublished Paper
FCC V. FOX TELEVISION STATIONS, INC. : TOWARDS AN EVEN MORE DEFERENTIAL JUDICIARY?
ExpressO (2010)
  • Alan W Moe, New York Law School
Abstract
Censorship has always been a polemical area of constitutional law. The controversy is further amplified when administrative agencies deal with sensitive areas of constitutional liberties. In FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1807 (2009), the U.S. Supreme Court dealt with an important issue of constitutional law and its intersection with the standard of judicial review for administrative agencies’ actions. In this case, the Court upheld the Federal Communications Commission’s about-face on its relatively conservative approach to the censorship of broadcasts for reasons of indecency in 2004. The FCC applied against Fox Television Stations its new policy of censorship that allowed single, “foul” words, or fleeting expletives, to be sanctioned. The FCC ignored important issues of constitutional law, the impact that near-blanket censorship would have on broadcasters—particularly small, local ones—and entertained narrow-minded assumptions about language and American society. Yet, the Court found that this new censorship policy was not arbitrary and capricious under the Administrative Procedure Act. Moreover, in the opinion, Justice A. Scalia wrote of a new standard of review that seems to give even greater deference to the administrative state. How did the U.S. Supreme Court reach the conclusion that the FCC did not act arbitrarily and capriciously? Under Justice A. Scalia’s reformulated arbitrary and capricious standard of review, has the U.S. Supreme Court become more deferential to agency action?
Keywords
  • arbitrary,
  • capricious,
  • FCC,
  • federal communications commission,
  • indecency,
  • obscenity,
  • censorship,
  • administrative,
  • judicial review,
  • scalia,
  • breyer,
  • federal communications act,
  • administrative procedure act,
  • APA,
  • pacifica
Disciplines
Publication Date
March 28, 2010
Citation Information
Alan W Moe. "FCC V. FOX TELEVISION STATIONS, INC. : TOWARDS AN EVEN MORE DEFERENTIAL JUDICIARY?" ExpressO (2010)
Available at: http://works.bepress.com/alan_moe/1/