Report from the Front: Team Coverage of Oral Arguments in FCC v. Fox

Three FHH attorneys who have followed the ups and downs of the FCC’s indecency policies over the years attended the Supreme Court oral argument in FCC v. Fox Television Stations, Inc., the first broadcast indecency case to reach the high court in 30 years. They filed the following reports with www.CommLawBlog.com.

 

Jeff Gee reports:

Anyone hoping to hear Justice Ginsburg drop the F-bomb in open court was sorely disappointed as the U.S. Supreme Court held oral arguments on the FCC's indecency rules. Justices and attorneys alike proceeded without a single utterance (fleeting or otherwise) of any of Carlin's famous seven dirty words. Instead, the audience was treated to debate on the finer points of the Administrative Procedure Act. What about the part where the FCC's rules violate First Amendment? Oddly enough, that might not matter too much.

As readers of our Memo to Clients may recall, the case being considered by the U.S. Supreme Court (formally titled FCC v. Fox Television Stations, Inc.) arose from a decision made by the U.S. Court of Appeals for the Second Circuit. The Second Circuit overturned the FCC's rules prohibiting "isolated" or "fleeting" indecent utterances solely on the grounds that the FCC failed to adequately justify its rules. Although the Second Circuit's decision also suggested that the FCC’s rules might not pass a First Amendment review, the Second Circuit made clear that its decision was based solely on administrative law and not constitutional law. As a result, the issue before the Supreme Court technically was not whether the FCC's rules are constitutional or even workable. Rather, the issue before the Court was whether the FCC sufficiently followed the rules applicable to Federal agencies as they make policy.

Nevertheless, the stalwart Carter Phillips (arguing on behalf Fox) urged that it is necessary to acknowledge the fact that the FCC’s indecency rules directly regulate speech. Justices Stevens, Breyer and Ginsburg seemed somewhat receptive to this, asking probing questions about how the FCC's rules actually work and how broadcast stations are supposed to operate under those rules. Justice Scalia and Chief Justice Roberts, on the other hand, were skeptical of any suggestion that a broader view of the case was warranted.

So where does this leave our friendly neighborhood broadcasters? Pretty much stuck as we have been for the past several years. The FCC has indicated that, unless forced to do so by looming statute of limitations deadlines, it won't issue any new indecency decisions until it gets more guidance from the courts.   That guidance may be years in the making, however. If the Supreme Court decides this case on purely administrative grounds, the rules themselves will have to go back to the FCC and, inevitably, come back up through the courts again. In the meantime, broadcasters will continue to be held accountable to rules that Justice Ginsburg, for one, repeatedly described as lacking any "rhyme or reason."

 

Kevin Goldberg reports:

I won't provide anything resembling a summary of the oral arguments before the Supreme Court in FCC v. Fox Television Stations, Inc. (Case Number 07-582), as that’s been done in several major publications. Instead, I'll focus in on two key indicators that I – and others – had identified as possible predictors as to the ultimate result: (1) the use of the key "dirty words" during the arguments; and (2) how (and how often) the give-and-take veered away from the Administrative Procedure Act (APA) and into constitutional issues. 

As to the first, a number of veteran observers believed that it would be necessary for Fox's counsel, Carter Phillips, to use the actual "fleeting expletives" (in this particular case, those would be “fuck” and “shit”) in front of the Justices as a way of "demystifiying" them.  Many prognosticators felt that the second indicator (i.e., references to constitutional rather than more pedestrian APA considerations) was probably more important. According to that theory, the more the Justices discussed the First Amendment, the more likely they would be to uphold the lower court's decision, even though the constitutional issue was, as Jeff notes above, technically not before the court.

The results of my own informal tally clearly do not bode well for Fox supporters.  First, nobody actually uttered the words "fuck" or "shit"; instead the terms "fleeting expletive" or "swear words" were interspersed with "F-word" and "S-word".  Second, the court refused to engage on the separate issue of the First Amendment, despite Carter Phillips' valiant, though perilous, effort to highlight the importance of this fundamental right.  Here's a scorecard: 

Speaker

"1st Amendment"

"F-Word"

"S-word"

Justices

4 (Souter, Scalia (2), Ginsburg)

 3

2

Carter Phillips (Counsel for Fox)

5

0

1

Gregory Garre (Solicitor General of the United States, on behalf of the FCC)

2

14

6

In other words, this case was pretty much the staid affair that many predicted and that Fox might have feared.  The most intellectually stimulating portion of the morning clearly worked against Fox, as Phillips almost got boxed into a corner by Justice Scalia as Phillips tried to raise the First Amendment issue.  During a line of questioning from Justices Scalia and Souter, Phillips was asked whether the fact that this is a First Amendment-related case had any bearing on the APA issues involved.  Phillips responded essentially that the constitutional issues would be impossible to ignore, differentiating this case from the routine APA case where an agency was dealing with "oil pipelines". 

Scalia asked whether Phillips was advocating that an agency must show a higher standard of justification for departing from established agency practice when dealing with constitutional issues rather than simpler administrative issues.  To answer yes would have clearly violated the "Ashwander" doctrine which states that a court should avoid constitutional issues whenever possible.  Unfortunately, we all know that real life decisions are informed by the facts of the case and anybody following this case knows it is different than the typical "oil pipeline" decision – as Justice Ginsburg stated at one point, to ignore the First Amendment issues at stake is just ignoring the "big elephant in the room."  But it was impossible as well to advocate for an explicitly different standard under the APA.

Broadcasters may take hope that Justice Breyer, usually a strong supporter of agency deference under the APA, also seemed skeptical of the FCC's departure from its earlier practice (one described by Mr. Phillips as going from a refusal to condemn fleeting expletives to punishment for fleeting expletives unless there is a contextual reason not to punish).  He clearly worried about the burden on broadcasters forced to institute a tape delay as a result of this decision and when it might be excusable, as Mr. Garre and Justice Scalia hinted it might be, to avoid using a tape delay and still remain free from punishment should an expletive find its way to the air. 

I think it's pretty clear that, no matter what, this case will be a 5-4 or 6-3 decision. Based on what I saw during oral argument, here's how I see each Justice voting (with bold and/or caps indicating my confidence in the pick):

Scalia:  FCC
Roberts: FCC
Thomas: fcc
Souter: fcc
Alito: fcc

Ginsburg: FOX
Stevens: FOX
Breyer: fox
Kennedy: fox

The good news, perhaps, is that the Court would likely remand to the 2nd Circuit which, in turn, would remand to the FCC.  The Commission, acting under a new administration, might not pursue enforcement as vigorously.  However, we have seen the Democrats on the current Commission take a very hard line on indecency as well, so this case could very well be back before the Supreme Court before Election Day 2012 . . .

 

Harry Cole reports:

While many may have thought it impossible for the FCC’s indecency policies to become even more confused and confusing, the Supreme Court dispelled such notions during its oral argument.

The policies have already been in an odd state of suspended animation since at least last year, when the U.S. Court of Appeals for the Second Circuit held them to be unlawful on purely non-constitutional grounds. (Not to get all legalese and technical here, the Second Circuit held that, in shifting from decades of tolerance for “fleeting expletives” to a new zero-tolerance approach, the FCC failed to dot all its I’s and cross all its T’s, as required by the Administrative Procedure Act (APA).)

But having hung and drawn the indecency beast as unlawful under the APA, the Second Circuit then quartered it by providing an extensive discussion of why, even if the indecency rules survived APA analysis, they were still probably unconstitutional. This discussion of First Amendment rights, while interesting, did not affect the Court’s decision, which the Court emphasized was strictly on APA grounds. (The First Amendment discussion was what lawyers call – Legal Latin Alert!!! – “obiter dicta”.)

At this point the FCC could have simply accepted the Second Circuit’s APA-based decision, taken another look at its “fleeting expletives” policy and maybe tried to provide a more APA-compliant rationale for that policy. Of course, even if it were successful in such an effort, the FCC could then expect to face a First Amendment challenge which, from the Second Circuit’s constitutional dicta, the FCC would likely lose.

Alternatively, the FCC could have asked the Supreme Court to review the Second Circuit’s decision. But since that decision was purely APA-based, the best the FCC could expect from the Supremes would be a decision that the Second Circuit’s APA analysis was wrong and that the indecency policy was properly developed by the FCC. Ordinarily, since the Second Circuit’s constitutional discussion amounted to nothing more than non-decisional dicta, the Supreme Court would avoid any consideration of that discussion. 

But, also ordinarily, the Supreme Court prefers to address heavy-weight constitutional cases, not prosaic APA issues. So when the FCC went with Plan B and asked the Supremes to review the case, and when the Supremes agreed to do so, a number of observers suspected that the High Court might choose to wade into the murky constitutional waters which the Second Circuit had roiled.

Not so fast. From the oral argument in the Supremes, it is not at all clear why the Supreme Court agreed to hear the case or what we might expect to come from their decision. As Brothers Gee and Goldberg report, above, a number of Justices – notably Scalia and Chief Justice Roberts – seemed to be harshly resistant to any talk of First Amendment concerns, while others (particularly Justice Ginsburg) seemed to say that consideration of constitutional questions is unavoidable here.

The likely result, it seems, will be a split decision which could, and likely will, mean several additional years of uncertainty in the indecency arena. While it would be nice if the Supreme Court would take this opportunity, here and now, to provide clear guidance as to the proper constitutional metes and bounds of indecency regulation, the oral argument provided no real hope that such guidance is likely. (Cautionary note: Trying to guess a case’s outcome based on oral argument is a fool’s errand. Oral arguments are often marked by devil’s advocacy, hypothesizing, the occasional inadvertent misstatement, and considerable rhetorical inexactness, all of which can lead to wild misinterpretations. That, of course, has never stopped us . . .) Rather, it looks like we can look forward to continued lack of clear guidelines in this area for the foreseeable future.

This may be a good time to invest in tape delay technology.

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Mark Levitt - November 5, 2008 2:30 PM

Thanks for the summary of the issues in this case. Very enlightening.

Do you have any thoughts on whether the next administration might make changes at the FCC that would lead to a quicker resolution (and, in my opinion, a swing back toward free speech)?


Harry Cole - November 5, 2008 9:00 PM

Mark --

Unfortunately, I do not see the pending change of administrations as likely to alter anything on the indecency front, procedurally or substantively. Historically (particularly in the immediate aftermath of the Pacifica decision in 1978), Democratic administrations have seemed to be far more sensitive to First Amendment considerations -- and far less likely to engage in heavy-handed indecency enforcement actions -- than their Republican counterparts. But in recent years, the Democratic members of the FCC (in particular, Commissioners Copps and Adelstein) have pushed very, very hard for aggressive enforcement and draconian penalties, notwithstanding the largely incomprehensible indecency "policy" to which broadcasters are subject. (I'm not the only one who thinks it's incomprehensible. F'rinstance, Justice Ginsburg noted that the policy has "no rhyme or reason". And I invite any defender of the policy to explain how broadcast of "Saving Private Ryan", with repeated and emphatic variants on "fuck", could be deemed permissible and, one must assume, not harmful to anyone, while a single "fuck 'em" from Cher en passant is worthy of sanction. (Ditto for a single "shit" from Nicole Richie -- which was BAD -- while a single "bullshitter" by a Survivor contestant was NOT BAD.)

Additionally, the Commission has been cheered on by various members of Congress who seem to see indecency as an easy issue about which to bloviate. After all, while the First Amendment protections here unquestionably weigh against the FCC's indecency enforcement activities, I can't think of any politicians who have ever run on the "I really like to say 'fuck' and 'shit'" platform -- even though many if not most of them probably do in fact use that language themselves (see, for example, Vice President Cheney's famous exchange with Senator Leahy on the Senate floor). Since there is no apparent pro-indecency lobby, the politician's choice here is easy.

It's kind of like flag burning which, although rare, does constitute purely political expression, and thus is as constitutionally protected as printed or spoken words. But there is no lobby of flag-burning devotees, while there are many citizens who take great offense at the notion of flag burning. So every year, just in time for Memorial Day and/or July 4 speechifying, somebody in Congress offers up a proposed constitutional amendment to permit the criminalization of flag burning. Of course, the proposal never goes anywhere, but it provides its sponsors with a politically-attractive mantle in which to wrap themselves.

So it is with indecency.

Since Copps and Adelstein will, presumably, stay on at the Commission at least initially in an Obama administration, and will be joined by a third Democrat, I see little prospect for change.

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