The majority decision, written by Justice Antonin Scalia, reversed the lower appellate court's decision that the FCC's move was "arbitrary and capricious." "The commission could reasonably conclude," he wrote, "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." Justice Ruth Bader Ginsburg, dissenting, wrote that "there is no way to hide the long shadow the First Amendment casts over what the commission has done. Today's decision does nothing to diminish that shadow." Justice John Paul Stevens, dissenting, wrote that not every use of a swear word connoted the same thing: "As any golfer who has watched his partner shank a short approach knows," Justice Stevens wrote, "it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent... It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they are battling erectile dysfunction or are having trouble going to the bathroom... The FCC's shifting and impermissibly vague indecency policy only imperils these broadcasters and muddles the regulatory landscape." For 30 years, the FCC has had the power to keep "indecent" material off the airwaves from 6 a.m. to 10 p.m., and those rules "have not proved unworkable" Stevens added. Justice Breyer, dissenting, wrote that the law "grants those in charge of independent administrative agencies broad authority to determine relevant policy," he observed. "But it does not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences." Scalia's majority opinion was joined by Chief Justice John G. Roberts and Justices Thomas and Samuel A. Alito Jr. and (for the most part) by Justice Anthony M. Kennedy. Justices Stevens, Ginsburg, Souter, and Breyer dissented. Four justices wrote concurrences or dissents speaking only for themselves.
