FCC v. Fox: The Swami Tells It Like It Was, and Like It Will Be

On January 10, the Swami and the Blogmeister took a field trip to the Supreme Court to catch the Fox/ABC indecency argument. Here’s their report.

[Blogmeister note: Last year the Supreme Court agreed to consider the constitutionality of the FCC’s broadcast indecency policies in the context of two cases, one involving comments made during awards shows aired by Fox Television, the other involving an episode of NYPD Blue on ABC. Check our previous posts for more background. The argument before the Supremes was held on January 10. Kevin “the Swami” Goldberg and Blogmeister Harry Cole attended.]

Blogmeister:  I think we can agree that, from the perspective of a broadcaster, the argument was disappointing. After the Second Circuit’s sweeping endorsements of First Amendment rights for broadcasters in Fox and ABC, it was a let-down to hear the far more cautious tone of the Supreme Court Justices.

Swami: Disappointing – maybe. I also thought “demoralizing” at first – but on further reflection, I don’t think this is a lost cause by any means. 

Blogmeister: Interesting. But before we ask you to gaze into your crystal ball and come up with a prediction of the vote, how about your thoughts on the overall arguments? For instance, what happened to the FCC’s interest in protecting children’s innocent ears from the evils of vulgar words? Pacifica was based in large measure on precisely that interest, but there was virtually no discussion of that at all during the argument. Instead, the government harped repeatedly on the notion that broadcasters have been given the use of their spectrum for free by the government, and they have derived “billions and billions of dollars” from that spectrum.

Swami: The government was claiming that, in return for the supposedly free spectrum, broadcasters should be happy to cough up some of their constitutional rights. I have a real hard time with that notion, particularly because even the Pacifica court didn’t seem to go down that road. But maybe the government is looking to move away from the “protect the kids” justification in light of the Supremes’ Brown decision last term. (In that case, the Court threw out a California statute restricting the sale of violent video games to minors. The Court held that the state hadn’t demonstrated that such games cause harm to minors. Justice Scalia, writing for the majority, observed that “disgust is not a valid basis for restricting expression”.)

Blogmeister: Another thing. How about the Fox lawyer’s willingness to throw the radio industry under the bus? Noting that Pacifica involved a radio broadcast, Justice Alito asked whether there is a basis to distinguish between radio and TV for purposes of indecency regulation. Counsel for Fox seemed happy to say that radio is different and, thus, on its own to argue that the FCC’s indecency policies can’t be applied to radio.

Swami: That was pretty striking. But for my money, the highlight of the argument came when ABC’s counsel pointed out to the Justices that the Supreme’s courtroom itself features images of bare breasts and buttocks. As counsel proceeded with his argument, he apparently noticed that Scalia was looking around the court to see if he could see those images. Counsel happily pointed them out to the Justice, noting that counsel hadn’t focused on them before. “Me neither”, responded Scalia. And, as a service to our readers, here’s one of those images (depicting Philosophy, from the north wall frieze):

Blogmeister: OK, enough of the color commentary. Let’s get down to the real nitty-gritty. How do you figure the Court’s going to come out here? Are you sticking with your prediction from last June?

Swami: I still see Justices Kagan and Ginsburg voting in favor of the broadcasters. Not a big surprise – at least to me – since I had them both in this camp when I made my initial predictions last year. Both Kagan and Ginsburg expressed serious concern about the “appearance of arbitrariness about how the FCC is defining indecency in concrete situations”, as Ginsburg put it. I thought it was noteworthy, too, that Justice Ginsburg – an opera buff – pointedly asked whether televising a nude scene from The Makropulos Affair (a Czech opera – who knew? – apparently misidentified in the official transcript as “Metropolis”, at least according to some commentators) would run afoul of the FCC. 

Blogmeister: I just moved The Makropulos Affair way up in my Netflix queue.

Swami: Not to be confused with Fritz Lang’s great “Metropolis”, the classic 1927 sci-fi film. 

But enough about movies, operas, Kagan and Ginsburg. On to the other side of the Court, where it seems equally clear that Chief Justice Roberts and Justice Scalia are two solid votes for the FCC. Both surprised me a little, since they’re key switches from my predictions last summer. I figured that Scalia would set aside his morality-tinged aversion toward indecent speech in favor of his longstanding interest in protecting even controversial speech. Also (as I pointed out last year), his opinion in the Brown case sure suggested that he doesn’t buy into the “we must protect the kids” rationale that underpinned the 1978 Pacifica decision. And for Roberts, I thought he would stick with the position he staked out in Snyder v.Phelps and United States v. Stevens. I probably shouldn't have trusted my gut on either one.

During the argument, both Roberts and Scalia clearly indicated that they believe that broadcasters have a higher responsibility to society, and that the government is entitled to insist on what Scalia termed a “certain modicum of decency”. It looked like they were buying into the government’s new contract theory – i.e., since the government is supposedly giving broadcasters their lucrative spectrum for free, the government can exact something in return. Seeming to step out of his role as judge and into the role of regulator, Roberts said that “[a]ll we are asking for, what the government is asking for, is a few channels where you are not going to hear the S word, the F word. They are not going to see nudity.”   Shoot, simply his use of “S word” and “F word” alone shows you where he stands. Ditto for Scalia, who used similar terms to refer to “shit” and “fuck”.

Blogmeister:  Here’s an interesting factoid: the only two times the Supreme Court has considered whether the FCC can penalize the broadcast of certain words, none of those words has been spoken during the oral arguments. That’s more than two hours of people arguing about the use of a small handful of particular words, and those words never make an appearance. (Check it out: recordings of the arguments in Pacifica and Fox are available on-line.) 

Maybe I’m missing something, but if nobody even says what the words are – and everybody instead pussy-foots around them – that suggests that the words themselves have some inherent mystique that makes them different from all other words. Different and, therefore, subject to different treatment by the government. But words are just words, collections of letters and sounds, with no force in and of themselves. So a failure even to mention what the words at issue are could be seen as a major concession that they really are different. Roberts’s and Scalia’s references to “the S word” and “the F word” reflect their apparent belief that one should not utter the words even in a dispassionate judicial forum in which those words are the very focus. That’s obviously bad news.

Swami: Agreed. (And if you’ll notice: I don’t share the Justices’ aversion to using the words themselves. Before we move on with my predictions, I should just come out and admit that, if I were on the Supreme Court, I’d vote to overturn the indecency regulations.)

So if I’m right on those four, the count’s at 2-2. Since Justice Sotomayor has recused herself from the case – presumably because she was sitting on the Second Circuit when both Fox and ABC rolled through on their way to the Supremes – it will take only four votes, total, to avoid reversal of the decisions below (both of which favored the broadcasters). Where are the other justices?

As is his custom, Justice Thomas didn’t open his mouth during the argument – he hasn’t asked a question during the last five and a half terms – so there’s nothing new there to analyze. I’m sticking with my earlier prediction: not only will he rule for the broadcasters, but he'll actually go the farthest in doing so. He may even take the position that both Pacifica and Red Lion should be abandoned by the court. 

Blogmeister: For the neophytes among our readers, we should explain that “Red Lion” was the 1969 case in which the Supremes held that the First Amendment rights of broadcasters can be abridged by the FCC because spectrum is scarce. Tossing Red Lion would be a huge development in communications law. When the Fox case passed through the Supreme Court back in 2009, Thomas issued a separate opinion observing the “doctrinal incoherence” of Pacifica and Red Lion and expressing an openness to reconsidering both. The Swami may be onto something here. 

Swami: Right, and that might seem very good for the broadcasters. But what if Thomas can’t get a majority of his colleagues to join him? He could end up just writing another separate opinion, which might not be useful in getting the indecency issue resolved once and for all. (More on that later.)

Anyway, Justice Alito seems pretty solid back the other way. In my view, of all the justices he’s the least friendly toward First Amendment rights. He did little during oral argument to make me believe that he’ll change that in this case. He pointed out that the number of over-the-air viewers is shrinking and asked, “why not let this die a natural death?”

Blogmeister: So whether or not there’s a First Amendment violation, he’d be content to just stand aside and let nature take whatever course it might? That’s some First Amendment sensitivity.

Swami: Yeah, that’s why I see him as a vote for the FCC here, which (if I’m right about everybody else so far) still leaves us at 3-3.  But don’t forget that we’ve also got Justices Breyer and Kennedy to consider. Fortunately, I had both in the pro-Fox camp last summer, and the oral argument didn’t fully move me off that.

Let’s start with Kennedy. He seemed skeptical about the government’s claim that there may be some symbolic value in imposing different indecency standards on broadcast TV as opposed to, say, cable. He also showed the most interest in the availability of the V-Chip, which could mean that he sees that as a non-regulatory answer to any possible concerns about children’s access to indecent programming. But he also expressed concern that overturning the indecency rules would inevitably open the door to the all kinds of vulgar television programming. He’s a question mark here.

Blogmeister: Which makes Justice Breyer crucial. 

Swami: And, unfortunately, Breyer seemed confused at times, particularly when he asked the government’s lawyer to walk him through the procedural posture of the case. He also seemed surprised that the ABC bare buttocks case was there at all, as if the Court should instead have been looking only at the Fox fleeting expletives case.

To me, the key to Breyer is his apparent concern about whether the Court really has to, or should, overrule Pacifica.  He seemed to me uncomfortable about holding Fox liable for the fleeting expletives, but possibly more willing to let the FCC penalize the nudity in NYPD Blue. Importantly, he seemed to feel that both results could be reached using the existing Pacifica standard. 

Blogmeister: That doesn’t surprise me. The Supreme Court traditionally is reluctant to overrule itself. And this may be a good example of why. Pacifica was decided back in 1978. It involved an extreme set of facts – the George Carlin monologue at issue involved 12 minutes of the classic “seven dirty words” repeated over and over. The Court in Pacifica emphasized that its decision there was limited to the facts of the case. In his crucial concurring opinion Justice Powell stressed that that narrow focus would be “conducive to the orderly development of this relatively new and difficult area of law” by the Commission and the courts. 

The problem is that that “orderly development” hasn’t happened.

Instead, over the intervening three-plus decades the Commission has gone back and forth, up and down, this way and that way on indecency. And, most importantly, the “standards” it has invoked over the years have not been reviewed by the courts. (That’s the result of a number of factors, including the Communications Act’s odd provisions concerning judicial review of forfeiture decisions.)

It’s as if, 34 years ago, the Court held that it’s OK for the government to penalize folks driving at 100 miles per hour, but at the same time declined to say whether the government could penalize drivers at slower speeds – leaving that question to be decided in later cases through the “orderly development” of the law. No such later cases get to court. Then, 34 years later, the government tries to fine somebody for driving at 20 mph, and that guy challenges the fine, asking the Court (among other things) to throw out the 34-year-old decision as wrong. In such circumstances, the Court might figure that it could reverse the 20 mph conviction without having to toss out the earlier 100 mph ruling. 

Breyer seemed to be thinking that, maybe, even if Pacifica was and remains good law, the Commission’s Fox and ABC decisions can’t be justified.

Swami: So maybe he’ll write his own separate opinion laying that out. But if he does believe that the Second Circuit reached the correct result, even if for the wrong reasons, the bottom line would be good for broadcasters. Unless the FCC gets five votes to reverse the result below, that result would stand. So if Ginsburg, Kagan, Thomas and Breyer – and possibly Kennedy – all agree that the Second Circuit’s reversal of the FCC was correct, broadcasters should prevail.   

Let’s go on the record: the Swami says that the split among the justices will most likely be 5-3 (affirming the Second Circuit) or 4-4. That’s just a count as to which sides the justices take. Almost certainly we’ll see a split court with multiple opinions and, probably, no single opinion reflecting the views of a majority of justices.

Blogmeister: And while that’s not a bad thing, it’s not optimal. Multiple opinions, including separate concurrences from Thomas (going the furthest, possibly urging that Red Lion be overruled) and/or  Breyer (staying the narrowest, probably looking to preserve Pacifica) would leave everybody in a very frustrating position: we would still not know precisely what programming the Commission can constitutionally prohibit as “indecent”. We’d be back on the quest for “orderly development” of this “difficult area of law”. We can all hope that some such “orderly development” might occur, but based on the last 34 years of that same quest, it’s hard to be optimistic.

Swami: Which kinda puts us right back where we were before all this right? In a place where the broadcasters lack any real certainty as to when they’ll be punished.

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