In the 2008 case Federal Communications Commission (FCC) v. Fox Television Stations, Inc., the U.S. Supreme Court ruled in favor of the FCC, upholding its policy to fine broadcasters for "fleeting expletives" or isolated instances of non-literal profanity during live broadcasts. The dispute arose when Fox Television was fined by the FCC after celebrities used fleeting expletives during live awards shows broadcasted on their network. Fox argued that this represented a change in established policy and violated both administrative law principles and First Amendment rights to free speech. However, the court held that it was not arbitrary or capricious for FCC to modify its indecency policy to cover fleeting expletives; thus, such changes were permissible under administrative law principles as long as they are justified and reasonable which according to majority justices' opinion they were.

In the dissenting opinion for FCC v. Fox Television Stations, Justice Breyer argued that the Federal Communications Commission (FCC) failed to provide a reasoned explanation for its change in policy regarding fleeting expletives on broadcast television. He noted that such an abrupt shift from previous leniency towards isolated instances of indecent language was arbitrary and capricious under the Administrative Procedure Act. Furthermore, he contended that this new policy could have chilling effects on free speech as broadcasters might self-censor out of fear of potential penalties. Lastly, he expressed concern about how this decision would impact smaller broadcasting stations who may lack resources to fight against possible sanctions by FCC.