"Fleeting Expletives" are the Tip of the Iceberg: Fallout from Exposing the Arbitrary and Capricious Nature of Indecency Regulation‪.‬

I. INTRODUCTION Challenging the regulation of indecent speech makes for a sexy First Amendment ease. Concerns with chilling or censoring speech draw immediate attention, overshadowing the issue of how the Federal Communications Commission (FCC) exercises its discretion when it finds certain language "indecent." In 1978, the Supreme Court in FCC v. Pacifica Foundation, Inc. held that the FCC's regulation of indecent speech did not violate the First Amendment. (1) Having the constitutional authority to regulate indecent speech, however, is distinct from identifying which actions are appropriate in the exercise of that authority. Until recently, too little attention has been given to the latter query: whether the FCC's indecency regulation is arbitrary and capricious.