The Internal Contradiction of the Thesis

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The majority opinion would be written by the historically conservative
Justice Scalia. His response is characterized by Stout (2009), who reports
that "in layman's terms, 'arbitrary and capricious' action by a lower court
or an agency means the action was totally unreasonable and in disregard of
the facts. Justice Scalia wrote that the F.C.C. has the power under law to
turn to more aggressive enforcement, if it wishes, and that it need not
present empirical evidence of harm done to children by over-the-air dirty
language. Indeed, he wrote, such empirical evidence is unattainable in any
event." (Stout, 1) This sites the one aspect of the FCC approach that may be characterized as positive, which is that it awards it sufficient power
to restrain broadcasting excesses.

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Recommendations for a New Policy:
Beyond this, the policy should generally be regarded as negative for
creating a test of indecency that is indefensible. A new policy would
redefine obscenity in specific and concrete terms based on the availability
of empirical evidence illustrating the negative impact levied upon viewers.
In order for the FCC to consider an act, image, spoken word or concept as
indecent and justifying the levying of an exorbitant fine, it must have
been illustrated through presentable research that such are connected to
negative sociological, cultural or political effects.

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