The Supreme Court today held — in a 5-4 decisions along predictable ideological lines — that an FCC regulatory change that made broadcasters legally liable for broadcasting even fleeting, isolated swear words was legal. It was an administrative law, not a First Amendment case, as the Court declined to address the free speech issue. (Both Thomas in concurrence and Ginsburg in dissent raised the strong suggestion that the FCC’s actions were constitutionally dubious.) Rather, the Court simply held that the FCC’s regulatory change was not “arbitrary and capricious” and was hence within the agency’s regulatory authority. Breyer, writing the chief dissent, was not persuaded, arguing that while the agency’s reasoning might have sufficed in the first instance it was insufficient to justify a change in policy, as it essentially represented a different weighing of policy preferences rather than a relevant change of facts.
Scalia’s opinion for the Court also contains one of those passages that have given Scalia a somewhat overinflated reputation for his prose stylings. Today’s, even more than most, is reads like a marginally more literate Glenn Beck transcript:
We doubt, to begin with, that small-town broadcasters run a heightened risk of liability for indecent utterances. In programming that they originate, their down-home local guests probably employ vulgarity less than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood.
Leaving aside that this faux know-nothing silliness is part of a not-very-compelling response to a serious point (about the effects of liability on small broadcasters) raised by Breyer, I’m curious about where Scalia acquired his deep knowledge of effete small-town folk and the fact that they don’t use the ordinary curse words that they use in Hollywood. His upbringing in Queens? Living in other small rural outposts like Boston, Chicago, and Washington? At any rate, when he criticizes the indecency of “foul-mouthed glitteratae”, I assume this is the kind of thing he has in mind:
Hopefully no naive small-towners will be exposed to such a shocking gesture!