CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

“Future Of Media project”to examine the, um, future of media

The FCC has launched an “examination of the future of media and information needs of communities in a digital age”. The scope of the inquiry seems to be Everything-Anybody-Could-Possibly-Know-And-Then-Some, although speculation, surmise and other elements arguably falling short of “knowledge” or “fact” will apparently also be welcome. You have until March 8 to get your thoughts together and ship them to the FCC.

The Commission in turn has promised that it will “produce a report”. Presumably, that report will be based on comments submitted in response to the FCC’s inquiry, but the FCC stops short of any absolute commitment along those lines.

 A friend of mine once asked an acquaintance exactly what that person’s communications consulting business consisted of. The answer: “I write reports”. We have laughed about that ever since because we can’t figure out who would pay for such a service.

But it’s no laughing matter when the FCC sets out to write, perhaps with unrealistic ambitions, a report about staggeringly broad and unfocused topics. The Commission claims that the report will “provid[e] a clear, precise assessment of the current media landscape” and that its preparers – the largely unidentified “Future of Media project” (FOMp) – will “analyze policy options and, as appropriate, make policy recommendations to the FCC, other government entities, and other parties”.  

One thing is incredibly clear:  the report, and the FOMp as a whole, will necessarily implicate the possibility of government regulation of news and other content. To illustrate, an early contribution to the FOMp conversation – delivered by a post to the FOMp blog (http://reboot.fcc.gov/futureofmedia/blog) on January 25 – expresses concerns about the Supreme Court’s decision in the Citizens United case. It observes that, while that decision is likely to increase broadcasters’ revenues, that may not mean any improvement in broadcast journalism, since the commenter’s concept of good journalism may not be “the kind of journalism the market would support”. By contrast, another commenter (in a post dated January 27) suggests that “consumers of journalism” should be encouraged to “make appropriate financial contributions” to journalists, journalistic organizations or other producers of “work” which the consumers deem “valuable”. (The FOMp blog header, presumably written by someone on the inside of the FOMp, refers to that as “good content”.)

At this point, your robot should be dancing around, eyes aglow, arms flailing, screaming “Danger, Will Robinson! Danger!”

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Constitutional challenge to the FCC’s indecency policy is center stage in Fox’s second trip to appeals court, judges appear unsympathetic to FCC arguments

If at first you don’t succeed, try, try again. And so it was that the FCC trudged back into the U.S. Court of Appeals for the Second Circuit on January 13 to defend the “fleeting expletives” portion of its indecency regime one more time. When last the Commission fought this particular fight in this particular arena, things didn’t go so well for the agency. From what we saw, the Commission is not likely to fare any better this time around. 

Back in 2006, in the wake of Janet Jackson’s Super Bowl flash, the Commission determined that fleeting uses of “fuck” and “shit” in two live awards shows aired by Fox in 2002 and 2003 violated the prohibition on indecent broadcasts. Fox appealed the decision to the Second Circuit, which overturned the FCC on non-constitutional grounds. According to the court, the FCC failed to explain why it had chosen to abandon a longstanding policy of not penalizing the occasional “fleeting” use of expletives. As we reported here last April, the Supreme Court, having agreed to hear the FCC’s appeal of the Second Circuit ruling, reversed the Second Circuit and shipped the case back down for further consideration.

While the FCC may have been pleased to have won a temporary reprieve from the Supremes, any Commission elation must have been tempered by the grim reality that it was about to jump out of the frying pan and into the fire.

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Court affirms right of corporations, unions, to advertise in support of or in opposition to political candidates

The U.S. Supreme Court has struck down a long-standing ban on corporate spending on political advertising, as well as a related portion of the McCain-Feingold campaign finance reform act that prohibited “electioneering communications” by corporations and unions in the days leading up to an election. This is welcome news to broadcasters and others in the media business as the decision is widely predicted to introduce a new pool of buyers of political advertising time.

The case (which we previously described here and here) arose, oddly enough, from a documentary movie about Hillary Clinton. The film, released in the thick of Ms. Clinton’s 2008 run for the presidential nomination, was – how can we say this delicately? – brutally critical of Ms. Clinton. Its producers wanted to broadcast ads for the film, but were concerned such ads might be deemed “electioneering communications” and, therefore, might violate the law. Accordingly, they took the matter to court, and the rest is now history.

The Supreme Court’s decision, which affirms the First Amendment rights of corporations and unions, involves (among other political advertising laws) the McCain-Feingold Act, more properly referred to as the Bipartisan Campaign Reform Act of 2002 or “BCRA”. In relevant part, BCRA prohibited “electioneering communications” by corporations and labor unions. Specifically, BCRA barred such entities from directly spending money on broadcast, cable or satellite communications that (a) referred to clearly identified candidates within 60 days of a general election or 30 days of primary election and (b) reached 50,000 or more persons. The Court found that that restriction (and earlier cases upholding bans on corporate political speech) amounted to unconstitutional censorship based solely on the identity of the speaker. 

Although the Court’s decision greatly expands the free speech rights of corporations, it does not lift all restrictions on political advertising. Corporations are still prohibited from making contributions directly to the campaigns of political candidates (although Political Action Committees, or “PACs”, may still do so). Moreover, the Court specifically upheld BCRA’s disclaimer and disclosure requirements (the spoken and textual announcements of who is responsible for an ad and whether it was authorized by any candidate). Also untouched by the decision are BCRA’s “stand by your ad” announcement and certification requirements that federal candidates must meet to qualify for lowest unit rates.

Nevertheless, for broadcasters facing a down advertising market, the positive effect of the Court’s decision may be considerable. Corporations and labor unions are now permitted to spend money directly from their treasuries on ads that support or oppose political candidates and ballot issues. This greatly expands the market for the upcoming mid-term election season and brings in players with even deeper pockets than PACs and candidate committees. A complete copy of the 183-page decision (with various concurring and dissenting opinions) can be found here (the official Supreme Court site, where access to the opinion was intermittent within a day of its release, possibly because of high demand) or here (the www.scotuswiki.com site).

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Comment deadlines set in “parental empowerment” inquiry

Last month we reported on the FCC’s Notice of Inquiry into parental empowerment. That notice has now made it into the Federal Register, which in turn establishes the comment and reply comment deadlines. If you’re moved for whatever reason to chime in on any or all of the questions posed in the notice – sample question: Is there “a minimum level of media literacy that parents, teachers, and children must have to ensure that children can participate effectively in modern society and enjoy the benefits of electronic media while avoiding the potential harms” – you have until January 25, 2010. Reply comments are due on February 22, 2010.

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Unlicensed operator rejects FCC authority, FCC rejects unlicensed operator’s rejection

They think big in Texas, and they think independent in Texas, and so it should be no surprise that an FM radio operator was not impressed when the Feds arrived at his doorstep. Some FCC agents claimed that the operator – one Raymond Frank – was lacking some piece of paper or other from some agency Back East in Washington, but Mr. Frank knew better. No “pirate broadcaster” he – no, he was operating strictly within the boundaries of the Republic of Texas, and so was not subject to the laws of the Yoo-nited States or any little ol’ FCC. (Frank also argued that the FCC’s rules violate the First Amendment. But if Frank was not a U.S. Citizen – being as how he claimed Republic of Texas citizenship and all – that argument may have been a tad inconsistent, but we digress.)

Not surprisingly, the Dallas office of the FCC’s Enforcement Bureau didn’t see things that way, and whupped Mr. Frank but good with a $10,000 fine for unauthorized operation.

The most interesting aspect of the Bureau’s Forfeiture Order is the fact that the Bureau felt the need to respond, in detail, to Frank’s claim that the FCC lacks jurisdiction over radio operations in Texas. To quote the Bureau:

We also note that Texas is a “State” of the United States of America, and it and its residents are subject to the laws of the United States. According to the to the [sic] Texas Historical Commission, Texas was annexed to the United States as the 28th state on December 29, 1845; Texas seceded from the United States and joined the Confederate States of America on January 28, 1861; and Texas officially was readmitted to the Union on March 30, 1870, following the period of Reconstruction. See http://www.thc.state.tx.us/triviafun/trvgov.shtml. Because Texas is a State, Mr. Frank’s invocation of the Foreign Sovereign Immunities Act is misplaced.

Presumably the Bureau felt that, by relying for this historical review on the “Fun Facts” page of the Texas Historical Commission website, the Bureau could not be accused of any kind of Yankee Revisionism. Yee haw.

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Trouble in River City?

If you’re looking for a good example of your tax dollars being spent – spent, yes, but not necessarily being put to work – you should check out the Notice of Inquiry (NOI) issued by the Commission on October 23. Entitled “Empowering Parents and Protecting Children in an Evolving Media Landscape”, it reads like a cross between an undergraduate course in child psychology and a weekend program on “modern parenting” that might be offered at the local community center. 

While no one can fault the Good Intentions presumably underlying the NOI – after all, Looking Out For The Kids ranks right up there with apple pie, the flag and motherhood in the pantheon of unassailable motivations – the NOI is grossly flawed in numerous ways. It lacks legislative authority, raises the specter of unconstitutionality, largely duplicates an inquiry just completed by the Commission, inserts the FCC into a regulatory area which other, presumably better suited, agencies are already working, and asks questions which are unanswerable.

If this is how the Genachowski Commission plans to deploy its resources, we’d all better fasten our seatbelts – it could be a bumpy night.

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The Goldberg line: Kevin foresees a 7-2 (or better) decision declaring the “crush video” law unconstitutional

Two days into its 2009-2010 term, the Supreme Court sank its teeth into a case which could have a profound impact on all First Amendment free speech rights, and particularly those of the news media. In United States v. Stevens the Court will have to consider whether a whole class of speech – in this case, depictions of “animal cruelty” intended to be distributed for commercial gain – can be declared “unprotected”, i.e., not subject to First Amendment protection.

The focus of the case is 18 U.S.C. Section 48, a 1999 Federal criminal law. It provides for up to five years in prison for anyone who “knowingly creates, sells, or possesses a depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain.” 

The law defines a depiction of animal cruelty as “any visual or auditory depiction of a living animal being intentionally wounded, maimed, mutilated, tortured, or killed if such conduct is illegal either under federal law or in the state or locality where the possession, creation or sale of the material takes place.”  Depictions that have “serious religious, political, scientific, educational, journalistic, historical, or artistic value” are excepted from the statute’s reach. (Of course, traditional First Amendment jurisprudence requires that the value of a work as whole be considered, not just particular images which a prosecutor might find offending within the overall work.)

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A good slogan perhaps, but NOT the law

As the FCC prepares to impose its version of net neutrality upon wireless and wired Internet service providers (ISPs), the Internet is buzzing with comments on how such governmental intervention may affect the future development of the Internet. 

On the one hand are the application service providers (with Google leading the charge) who promote net neutrality as necessary for the preservation of the Internet. These folks did not invest in any of the transmission facilities that comprise the hardware pipeline of the Internet – but they are happy to rely on that pipeline to distribute their services.

On the other side are the ISPs (including folks who DID invest in the hardware) and technical experts who believe net neutrality is a solution in search of a problem and a dangerous overlay of regulation upon a dynamic, constantly evolving set of relationships.

This battle presents a range of legal issues. The question mentioned perhaps most often involves the FCC’s authority to regulate at all here:  the Commission (with a thumbs-up from the Supreme Court in the Brand X case) has held Internet data transmission to be an “information service” that cannot be regulated – well, at least not as common carriage. But if that’s the case, how can the Commission now try to impose common carrier-like obligations on ISPs?

Then there is the First Amendment of the U.S. Constitution.

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Briefing schedules set for indecency remands

As we all know, last April the Supreme Court affirmed the FCC’s re-cast indecency policy on APA grounds, and sent the matter back down to the Second Circuit for further consideration. For those of you who have lost track of the case amid various summer distractions, here’s a heads up: the Second Circuit has established a briefing schedule for the remand phase. 

Fox’s brief is due September 16, along with any amici briefs supporting Fox’s position. The FCC and its friends are set to file their responsive briefs on October 28, and Fox et al. will have until November 12 to file their replies. The Court has apparently decided to hold additional oral arguments at some point after it has had a chance to review the briefs, but it won’t be announcing a schedule for the arguments until after all the paperwork has been filed. Even if the current briefing schedule doesn’t get extended for any reason (and there are never any guarantees), it’s clear that the Court won’t likely be issuing any new opinions in the case until mid-2010, at the earliest – if you figure that arguments won’t likely happen until the middle of the first quarter of 2010 (again, at the earliest) and then the Circuit takes a few months to crank out its decision.

With that schedule, the parties would not likely be asking the Supremes to take another look at it until the latter part of 2010, which in turn means that we’re not likely to see a second Supreme Court take on the matter until 2011 or later.

Meanwhile, in Philadelphia, the Third Circuit folks got a slight jump on their Second Circuit colleagues by calling for briefs in the CBS case (involving L’Affaire Janet Jackson) starting earlier this month, with the last round of reply briefs currently due toward the end of September. No word yet about plans for oral argument. While the Third Circuit’s six-week head start over the Second may result in the CBS case getting to the Supremes’ door step before the Fox case does, we’re still probably looking at 2011 as the earliest before we’ll be seeing another Supreme Court decision on the merits of the FCC’s indecency policy.

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Where’s the FCC’s copy of the MusicFIRST Request been hiding?

As we reported recently, the FCC has invited comment on the Request for Declaratory Ruling filed by the MusicFIRST Coalition. For the convenience of our readers, we provided a link to a copy of the Request. Good thing that we did. Apparently the FCC has been having quite a time trying to track down any copy in its files reflecting a “received” stamp from the Secretary’s office. 

As an apparent result, as of 5:00 p.m. today (August 12, 2009) no copy at all of the Request had been posted in Docket No. 09-143 on ECFS, even though the public notice inviting comments was supposedly released five days ago – so anybody who (a) might have wanted to read the Request between then and now and (b) hasn’t thought to look for it on CommLawBlog.com would have had a bear of a time finding it. 

We’ve heard from one source who suggested that it’s not clear that the Request ever made it to the Secretary’s office. To be sure, the copy of the Request that we have in hand (no thanks to the FCC) includes a certificate of service indicating that it was being filed at the appropriate FCC filing address – but ordinarily, when things are filed at that address, stamped copies are made and retained by the Commission for future reference. So if it did pass through the Secretary’s office, it’s unclear why it didn’t get stamped in . . . and if it did get stamped in, it’s unclear why it’s taking so long to get a stamped copy posted for public review.

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FCC invites comments on alleged improprieties in Performance Rights Act debate

A new front has been opened in the on-going struggle over the Performance Rights Act (PRA). The new battleground is the FCC, which has invited comment on a “Request for Declaratory Ruling” filed by MusicFIRST Coalition back in June.

As we have previously reported (here and here, for example), the PRA would require radio stations to pay for the on-air performance of copyrighted sound recordings. That would be over and above the royalties broadcasters already pay to the composers of the underlying works (through ASCAP, BMI and SESAC). Historically, of course, radio has provided on-air exposure to recording artists for free, just as the artists have made their recordings available to broadcasters for free. That quid pro quo arrangement has served everybody – artists, broadcasters and the listening public – well for decades. The artists – well, at least some of the artists, and certainly the record companies for which they work – now want to change the deal.

Whether the proposed change makes much sense is a matter of considerable (to put it mildly) debate. (See our colleague Peter Tannenwald’s post here for an interesting take on the situation.) But thus far, the debate has been thrashed out in Congress, in connection with various bills which would either impose a new performance rights royalty obligation or not. (While no final votes have been taken, some observers – including our colleague Kevin Goldberg – have concluded that the PRA is doomed to failure in this Congress.)

Perhaps sensing a need to expand the battlefield, MusicFIRST – a “partnership of artists and organizations in the music community who support compensating performers for their work when it's played over the air” – has tried to lure the FCC into the fray. 

And the FCC has taken the bait.

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We could do an analysis of Supreme Court nominee Sonia Sotomayor's past opinions and read the tea leaves as to how her appointment to the Court will affect broadcasters, newspapers, media and other First Amendment concerns. 

But there's enough out there already for us to say:  just check out the links below and amuse yourselves for a while. Note that Judge Sotomayor hasn't heard many cases on appeal from the FCC -- or even Administrative Law cases which might demonstrate how she would eventually rule in an FCC-originated case.

But there's still plenty to interest broadcasters and other media:

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In a decision which comes as no real surprise, the Supreme Court has agreed to hear the FCC’s appeal of the 2008 decision of the U.S. Court of Appeals for the Third Circuit, which reversed the forfeiture meted out to CBS for the Janet Jackson Super Bowl incident. But having agreed to hear the appeal, the Supremes lost no time in vacating the lower court’s decision and shipping the case back down to the Third Circuit for further consideration in light of the recent decision in FCC v. Fox Television Stations, Inc.

As we have previously reported here and here, the Fox decision changes certain non-constitutional considerations relating to the FCC’s indecency policy. Since the Third Circuit’s decision was based on just such non-constitutional considerations, the Supreme Court’s remand is standard operating procedure.

The remand does set up the possibility that both Fox and CBS could return to the Supremes simultaneously. Both the Second Circuit (i.e., the Fox court) and the Third Circuit (i.e., the CBS/Janet Jackson court) will be getting their respective cases back at essentially the same time (i.e., now). Since the remaining issues are relatively straightforward, both courts might be able to deal with the remand proceedings in reasonably short order. If both courts were to issue decisions in those remands at approximately the same time, consolidated review by the Supreme Court would not be out of the question.

While both Fox and CBS/Janet Jackson involve FCC findings of “indecency”, the two cases are distinct in a number of ways. Perhaps most obviously, Fox involves mere words, while CBS/Janet Jackson involves the fleeting image of Ms. Jackson’s right breast. Consolidated consideration of both cases would provide the Supremes the opportunity to consider both the verbal and visual components of indecency regulation.

Check back to www.commlawblog.com for further developments.

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[Blogmeister’s note: As part of our overall coverage of the on-going development of FCC indecency law and policy, we present here a nitty-gritty synopsis of the six separate opinions issued by the Supreme Court in FCC v. Fox. Veteran court-watcher and First Amendment guru Kevin Goldberg has read all 72 pages, so you don’t have to . . .]

Just because the fortune-teller got it right does not necessarily mean that we have to like it when the accurately-predicted future becomes present reality. Like when we correctly read the tea leaves in the wake of the November 4, 2008 oral arguments in FCC v. Fox Television Stations, Inc. The Supreme Court has – by the 5-4 margin we predicted (though we reversed the positions of Justices Kennedy and Souter) – overturned the earlier ruling against the Commission by the United States Court of Appeals for the Second Circuit.

The Supreme Court ruled that the FCC did not violate the Administrative Procedure Act (APA) when the Commission suddenly, and without prior warning to broadcasters, reversed 25 years of agency precedent by ruling that “fleeting expletives” broadcast on the 2002 and 2003 Billboard Music Awards violated the indecency rules.  The Court did not take any position as to whether the FCC’s application of the indecency rules violated the First Amendment.

 Our post-argument impressions on the case (which include a summary of key quotes from the oral arguments) and Harry Cole’s early thoughts on the Court's decision offer significant background.  Here’s a summary of the Court’s majority, concurring and dissenting opinions.

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First reaction to the Big Decision

[Blogmeister's note: Our crack team covered the oral argument in Fox last November, and will be providing additional coverage of the Court's decision released April 28.  The following is one commentator's view of the landscape.]

The Supreme Court has issued its long-awaited decision in FCC v. Fox Television Stations, Inc., the case involving the application of the FCC’s indecency policy to “fleeting expletives”. By a 5-4 vote, the Justices concluded that the FCC’s action was consistent with its statutory obligations under the Administrative Procedure Act. Accordingly, they reversed the contrary decision of the U.S. Court of Appeals for the Second Circuit and remanded the case back to the Second Circuit. Score one for the Commission.

While any decision favoring the Commission’s indecency policy in any way is troubling, the good news here is that the Supreme Court’s ruling changes very little on the indecency front. To the contrary, its primary effect in the indecency area is to set the stage for the next, and far more important, act in this long-running drama.

But the news is not all good. Lurking behind the high profile “celebrities talking dirty on TV” allure of the case is a major shift in a seemingly mundane legal doctrine, a shift that could affect FCC regulatory activity in all respects for years to come. So while many commentators may choose to dwell on the obvious “indecency” aspects of the ruling, the real importance of this decision lies elsewhere.

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Just a quick update on some recent stories we've had on CommLawBlog.  There's a common thread running through all three.  A free CommLawBlog subscription to the first person who can find it...

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We are very pleased to tell you that HR 985, the Free Flow of Information Act, was reported out of the House Judiciary Committee by voice vote on Wednesday, March 25. 

The Free Flow of Information Act is legislation that would, for the first time, create a reporter's privilege applicable in federal administrative and judicial proceedings. HR 985 is identical to its House predecessor, which passed by a vote of 398-21 in the 110th Congress.  It would create a “qualified” reporter's privilege available in all federal proceedings – not just court cases, but administrative and legislative hearings as well – for anyone who qualifies as a “journalist”. 

The bill defines “journalist” as one who “regularly gathers prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain” (we're not exactly enamored of the financial component to this otherwise "functional" definition, but note that a Senate version of the bill does not contain that requirement). 

The bill strikes a balance between protecting the free flow of information from source to reporter to, ultimately, the public and the need to have a reporter testify when necessary to ensure a fair trial.  A reporter would be forced to testify only where it can be shown by a preponderance of the evidence that the information is critical to the investigation, prosecution, or defense of a criminal case, or dispositive of an issue in civil case, and if all other sources for the information have been exhausted.

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At Congress’s direction, FCC inquires broadly about content-blocking technologies

When Congress tells the FCC to do something, the FCC has no choice: it’s got to follow orders. Back in December, Congress told the FCC to start an inquiry into “advanced blocking technologies and existing parental empowerment tools” so, sure enough, that’s what the FCC has done. On March 2 the Commission released a Notice of Inquiry just like it was ordered to.

The law that got this started – the Child Safe Viewing Act of 2007, which was signed by the President on December 2, 2008 – was not a model of specificity or precision. It directed the Commission to “initiate an inquiry to consider measures to examine”, in effect, the entire range of “blocking technologies” which might be available to “improve or enhance the ability of a parent to protect his or her child from any indecent or objectionable video or audio programming, as determined by such parent, that is transmitted through the use of wire, wireless, or radio communication.”

Gamely attempting to comply with that near-infinite mandate, the Commission is now seeking comment on content-blocking generally.

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Ordure in the Court, Part II

Elsewhere on this blog we have posted reports about the oral argument in FCC v. Fox, the first broadcast indecency case to reach the Supreme Court in 30 years. From our notes taken during the argument, we have mined the following nuggets:

• Justice Ginsburg noted that there was “no rhyme or reason” in the FCC’s application of its indecency policy.
• In a brief reference to the “scarcity rationale” which has historically been invoked to justify content regulation of broadcasting, one justice suggested that that rationale was not involved in the seminal Pacifica case (the 1978 Supreme Court decision which upheld the FCC’s first enforcement action under its then-new indecency policy). In response, Justice Stevens pointed out that scarcity was indeed a basis for Red Lion (the 1969 Supreme Court decision upholding the Fairness Doctrine), and Red Lion, in turn, was a basis for Pacifica. No one in the courtroom was in a position to argue with that statement, since Stevens unquestionably knows whereof he speaks: he was the author of the plurality opinion in Pacifica.
• Speaking of the scarcity rationale, Justice Ginsburg pointed out that Pacifica arose “before the Internet”, an observation which suggests that she may believe that the explosion in available media sources over the last 10-15 years might undermine the scarcity rationale.
• When asked by Ginsburg how the FCC determines what the “community standards” for indecency are, the Commission’s lawyer responded that the FCC applies its “collective experience”.
• In a discussion of whether the “community” is more tolerant of certain words today than it was in 1978, Justice Scalia bemoaned the “coarsening of manners” which he apparently perceives around him – and which he apparently attributes, at least in part, to broadcast content – and indicated that the expletives under consideration are not used “in polite society”.
• Justice Stevens, who got the indecency ball rolling with his opinion in Pacifica, asked whether the determination of whether or not a particular word or term is indecent is dependent on whether it is “hilarious” -- a proposition which Justice Scalia re-stated (probably sarcastically) to ask whether bawdy jokes might be judged not indecent “if they’re really good”. Later, Stevens also inquired of the FCC’s lawyer whether the word “dung” is indecent. (Like any good lawyer, FCC counsel answered with a solid maybe.)

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(The following is an editorial sidebar from Kevin Goldberg, who swears that it's all true.)

Upon entering the Supreme Court chambers to hear arguments in FCC v. Fox Television Stations, Inc., I was asked by one of the Court's marshals to take off my very standard, very small "I voted" sticker (see illustration at left) because it was a form of "sloganeering" -- an act that shouldn't surprise me given the Court's record on election day issues (see, e.g. 2000) but still one that I find incredible when there were plenty of people expressing various messages by wearing items like flag pins on their lapels -- and at least one former Solicitor General (who was spectating just like I was) who was allowed to keep his "I voted" sticker intact.

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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.

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In September's "Memo to Clients", our readers were treated to an extensive analysis of the Presidential candidates’ positions on communications issues. Jeff Gee concluded that Senator McCain’s and Senator Obama’s views are - to the extent they have been stated - rather similar on matters affecting the broadcast and telecommunications industries (their opposing viewpoints on media ownership being the glaring exception).

We didn’t examine the views of the Vice Presidential candidates. After all, there really isn’t much information out there from which we might form any conclusions about the likely media policies of either Senator Biden or Governor Palin. Nevertheless, a recent statement made by Palin has caused us to ponder her overall agenda for the FCC and the communications industry. 

While being interviewed by Chris Plante on Washington, D.C. radio station WMAL, Palin made the following statement regarding media coverage of her strong statements about Obama’s past associations.

If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations, then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.

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 The Prosecution of Jeremy Jaynes by the Counselor Russell McGuire

The Internet has long been described as the "Wild West" with regard to the application of law.  We disagree with this characterization in that many laws applying to traditional media are generally applicable to the Internet as well, but for the sake of a good analogy, we'll note that one of the most notorious "virtual" outlaws in recent years is one Jeremy Jaynes.  On September 12, 2008, Mr. Jaynes's conviction for violating Virginia's Anti-Spam law was overturned by that state's Supreme Court, thereby saving him from nine years in a very real jail. 

For nearly a decade, Mr. Jaynes rode through cyberspace leaving a trail of mayhem in his wake.  As prolific as he was evasive, he is believed to have sent hundreds of thousands of unsolicited Emails or "SPAM" a day from his home in Raleigh, North Carolina.  In three particularly active days in July 2003, he used falsified header information and sender domain names to transmit 12,197, 24,172, and 19,104 E-mails to unwilling recipients, thereby violating Virginia Code Section 18.2-152.3:1, in which the good people of Virginia have declared the sending of email from false domain names to be criminal offense – and a felony if more than 10,000 E-mails are sent in a single day.

When he was cornered and captured by the men with badges, compact discs found in Mr. Jaynes's home showed that he was in possession of more than 176 million E-mail addresses and more than 1.3 billion E-mail names (and you thought your E-mail accounts were becoming unmanageable).  Many of these were subscribers to America Online ("AOL").

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It's been almost a year since we first brought you the story of a woman who decided to file a lawsuit against Universal Music Publishing Company alleging that their filing of a Notice and Takedown Request with YouTube to remove this video of her 13 month old son dancing to Prince's "Let's Go Crazy" constituted legal misappropriation in violation of her rights:  

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You'll find legal services offered on Craigslist (we don't actually recommend hiring any of the lawyers that advertise there), but nothing found in these online classifieds may be as valuable to Internet content providers as a case the popular marketplace website itself won last week in federal court.  Those with a sharp eye honed on Section 230 of the Communications Decency Act, a statute we have previously discussed in this blog and in our Memo to Clients newsletter may want to hold off on celebrating just yet, as New Jersey prosecutors are considering legal action against a controversial site that has become all the rage on college campuses, the effect of which could undercut the entire rationale for Section 230. 

Our previous writings on Section 230 of the Communications Decency Act have reviewed how this statute continues to be interpreted very broadly by courts around the nation to offer protection to any "Internet content provider" against liability that would derive from content posted by a third party.  Rulings from several federal District and Appellate courts, as well major state Supreme Courts, make it clear that websites have broad power to modify, edit and even delete content without accepting responsibility for this third party content.    The law has most often been invoked as a defense in defamation cases, but it applies to any cause of action other than violations of federal criminal law and intellectual property violations (though we have discussed a separate legal protection against copyright infringement actions found in Section 512 of the Digital Millennium Copyright Act in the blog and MTC.

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The House of Representatives passed important legislation reforming the Freedom of Information Act via unanimous consent on December 18, clearing the "Open Government Act" for Presidential Signature after the Senate passed an identical version of the bill last week.

These reforms have been three years in the making.  Senators Patrick Leahy (D-VT) and John Cornyn (R-TX) introduced the Open Government Act in the 109th Congress but it stalled after passing the Senate Judiciary Committee.  A version introduced in the 109th Congress by Rep. Lamar Smith (R-TX) failed to get a vote in the House Committee on Government Reform. 

With those markers in place, several open government advocates, including the Sunshine in Government Initiative, which includes Fletcher Heald & Hildreth client the American Society of Newspaper Editors, had high hopes for this bill in 2007-2008.  Congress did not disappoint.

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HR 2102, also known as the "Free Flow of Information Act" passed the House of Representatives by a vote of 398-21-- a margin that even the bill's supporters must admit exceeds their wildest dreams.

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The House of Representatives appears ready to hold a Floor Vote this coming Tuesday, October 16, on HR 2102, the Free Flow of Information Act, a bill that will create, for the first time, a reporter's shield law applicable in federal proceedings.

Thirty-three states currently have shield laws and another 17 have judicially-created reporter's privileges. Many bear resemblance to the strong dissenting opinion from Justice Potter Stewart in the key 1972 Supreme Court case of Branzburg v. Hayes. Although the Court ruled in that case that the First Amendment does not protect a reporter from being forced to testify before a Grand Jury, Justice Stewart argued that there were several important public interest considerations favoring the application of a qualified privilege in certain circumstances. Justice Stewart's opinion was followed by many lower federal courts and was the model for several state shield laws. But, despite the best efforts of the media and others, including the introduction of 99 different versions of shield legislation in the United States Congress between 1973 and 1978, there remains no legal basis for asserting the privilege in federal court.

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Yesterday, we brought you the BHFJ case ("Bong Hits 4 Jesus"); today it's BCRA ("Bipartisan Campaign Reform Act" or "McCain-Feingold"). The Supreme Court's "other" First Amendment case from June 25, 2007 was probably the more important of the two, as far as broadcasters are concerned. But let's face it: it's just not as fun, is it? Especially when the collective opinions in Federal Election Commission v. Wisconsin Right to Life, Inc. weigh in at 93 pages...

The Bipartisan Campaign Reform Act was passed in 2002 as a means of limiting the money spent on election campaigns. Among the restrictions affecting broadcasters was Section 203, which criminalized the use of general treasury funds by any corporation to pay for an "electioneering communication," meaning any broadcast referring to a candidate for federal office that is aired within 30 days of a federal primary election or 60 days of a federal general election in the jurisdiction where the election is being held. A group could still fund such ads through a separate Political Action Committee.

This provision was previously upheld by the Supreme Court against a facial First Amendment challenge in McConnell v. Federal Election Commission. But the issue arose again after the Wisconsin Right to Life organization began broadcasting advertisements which mentioned by name certain Senators, including Wisconsin Senators Russell Feingold and Herb Kohl, and urged voters to contact those Senators to oppose a filibuster on the nomination votes of federal judges. These advertisements are posted on the organization's webpage. They ran through June and July 2004 but, come August 2004, would have been prohibited as electioneering communications. Wisconsin Right to Life filed suit against the Federal Election Commission ("FEC") for the right to continue airing the advertisements.

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Maybe it's not Jesus the Supreme Court hates. Maybe it's bong hits. Or perhaps just high school students.

Based on a ruling issued today -- the last day of the Court's 2006 term -- the answer could be any of the three, or all together. In a 5-4 opinion that carried the usual plethora of concurring and dissenting opinions, the Court ruled that the state of Alaska has the power to punish a student who displayed a sign saying "Bong Hits 4 Jesus", even though that student was not on school property at the time. The case is Morse v. Frederick

The case originated in 2002 when the Olympic torch relay passed through Juneau, Alaska on its way to Salt Lake City. Students at the Juneau-Douglas H.S. were permitted to leave class to watch the torch relay. As the torch passed, several students, including Joseph Frederick unfurled a banner reading "Bong Hits for Jesus". The students were told to take down the banner and, when he refused, Frederick was suspended for ten days under a school policy that punishes anyone who promotes illegal drug use. A series of appeals through the educational system and federal courts culminated in the United States Court of Appeals holding that the First Amendment prohibited punishment of this type for a statement that did not occur within the confines of the school grounds or activities.

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This afternoon, Senators Christopher Dodd (D-CT) and Richard Lugar (R-IN) and Representatives Richard Boucher (D-VA) and Mike Pence (R-IN) introduced companion bills entitled the "Free Flow of Information Act."  These bills are the latest attempt at a federal reporter's privilege or "shield law" that would protect journalists from being compelled to testify in federal court proceedings or provide testimony, including that which would identify a confidential source, to any federal entity other than Congress.

The bills provide a qualified reporter's privilege that requires the government to show that the material sought is essential to a criminal or civil case and that all other sources for the information sought have been exhausted prior to compelling a reporter to testify.  There is a near-absolute protection for the identity of a confidential source which can only be overcome in five very narrow circumstances where the government must show an overriding need for information of a certain type.  In every case in which the privilege is invoked by a reporter, a reviewing court will have to balance the public interest in the disclosure of the information with the public's interest in protecting the right of the press to protect sources and information.

This bill is supported by over 50 media organizations and companies and provides a federal counterpart to the 49 states (and the District of Columbia) that have some form of statutory or judicially-created protection for reporters.

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