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

Frankly, I don’t see much change from Stevens. It’s pretty safe to say that the “liberal block” of the Court will affirm the Second Circuit and strike down the FCC’s regulatory scheme. (That would parallel the vote in the 1978 Pacifica case, where the four liberal survivors from the Warren Court hung together in dissent.)  Let’s also assume that Justice-designate Kagan will: (a) be confirmed and (b) vote the same way that Justice Stevens did in Stevens (no relation, obviously). So right there you’ve got Breyer, Ginsbug, Sotomayor and Kagan ready to slap the FCC down.

I think Fox also gets Justice Thomas. He was the only Justice in the 2009 Fox decision to flat out question the rationale for broadcast content regulation. His separate opinion there indicated that he’s itching to do away not only with the indecency regulations, but also with the scarcity doctrine underpinning all regulation of broadcast content.  Plus, he voted with the majority in Stevens.  And don’t forget his vote in U.S. v. Playboy Entertainment Group, Inc.  There the Court struck down a requirement that cable operators scramble sexually explicit content.  He voted with the majority, saying “I am unwilling to corrupt the First Amendment to reach this result. The ‘starch’ in our constitutional standards cannot be sacrificed to accommodate the enforcement choices of the Government.”

On the other side, I suspect that Justice Alito is the most likely to vote to reverse the Second Circuit and side with the FCC.  He was the lone outlier in Stevens and has generally seemed to be paternalistic and protective of “society’s morals” in similar cases.

That gets us to 5-1, with Chief Justice Roberts and Justices Scalia and Kennedy left. I think you might see one, maybe  two, of them side with the FCC, but not all three.   Why?

Chief Justice Roberts wrote the strong majority opinion in Stevens and was clearly uncomfortable with the lack of regulatory precision in that case.  While it’s possible that he could line up with Alito, I just don’t see it. After all, the Chief was also in the majority in the most controversial First Amendment decision of the most recent term (Citizens United v. Federal Election Commission). There is really no comparison between Fox and Citizens United, but if the Chief is going to go that far out on a limb in favor of the First Amendment, it's going to take him a while to get back in, even if he really wants to come back.

Speaking of Citizens United, that decision was written by Justice Kennedy.  He was also in the majority in Reno v. ACLU and wrote the opinion in the U.S. v. Playboy.

I originally had Scalia solidly on Fox’s side, but I began to rethink this a little. He wrote majority decision in 2009, when Fox first blew through the Court and the FCC won. (As you will recall, the Court then sent the case back down on administrative law grounds without reach the thornier constitutional issues.) But that doesn’t say much: he was very clear that he was ruling on the non-constitutional issues only, and he never hinted at how he might come out on the First Amendment issue here. Some of his votes in other First Amendment cases suggest he might side with Fox here. Remember, Scalia was the swing vote (joining uber-liberal Justices Brennan and Marshall) in Texas v. Johnson, which accorded First Amendment protection to flag burning. He was also clearly with the majority in Stevens.

On the other side, he’s shown that he is willing to “vote morality”. In Barnes v. Glen Theater he concluded that the First Amendment did not prevent restriction of nude dancing.   He also dissented in U.S. v. Playboy Entertainment Group, Inc.  Ultimately, I’m hoping that he’ll vote to strike down the FCC’s indecency scheme because: (1) he justified the moral high ground in Barnes only after declaring nude dancing to be conduct, not expression; (2) he dissented in Playboy only after deciding that the content providers in that case were clearly providing – and intending to provide – hard core sexually-oriented material, not at all the case here; and (3) he was in the majority in Reno v. ACLU back in 1997 where regulation of supposedly “harmful” material on the Internet was declared unconstitutional, in part due to the vagueness of the law.

So maybe more than one of Scalia/Roberts/Kennedy drops off to join Alito in upholding the FCC’s indecency policy.  But I doubt it. And in any event, I clearly don’t think any more than those three join Alito in ruling for the FCC. 

Bottom line: Kevin’s Krystal Ball says that Fox wins in the Supremes.

Clouding the FCC’s choices is the fact that CBS’s appeal in the Janet Jackson case is currently pending in the U.S. Court of Appeals for the Third Circuit. Since that case also involves the indecency policy so thoroughly trashed by the Second Circuit in Fox, the Commission might be inclined to hold off until the Third Circuit shows its hand before making any decisions about the next appellate step through the indecency minefield. (The FCC has 90 days to file its cert petition – and that can be extended another 60 days under some circumstances – so the Commission may sit back and wait at least a little while for a Third Circuit decision to roll in.)

[Blogmeister’s Note: Kevin Goldberg, our crack Supreme Court observer and First Amendment guru, has advised that, according to Kevin’s Krystal Ball, the Second Circuit’s decision would be affirmed in the Supreme Court by at least 6-3, maybe even 7-2, if it were to get that far. Kevin has undertaken considerable analysis to back this up – let us know if you would like us to post that analysis – and he assures us that he is not relying on the soccer-predicting German octopus. Some reports, however, indicate that he has his own octopus powering the Krystal Ball (see illustration at right).]

Of course, the Commission could also just run up the white flag and forget about appealing any further. In that case, its indecency options would be reduced to two: (1) go back to the drawing board and attempt to develop an indecency enforcement policy that passes constitutional muster; or (2) accept the fact that indecency is not susceptible to government regulation.

In view of the zeal with which the FCC has been flexing its anti-indecency muscles in recent years, (2) seems an unlikely choice. That unlikelihood is underscored by Commissioner Copps’s statement concerning the Second Circuit decision. In that statement Copps expressed his hope that the FCC would appeal the case, and he called on the Commission to “move forward immediately to clarify and strengthen its indecency framework”. Hmm . . . we’re guessing that he would opt for choice (1). 

But so far Copps is the only Commissioner who has spoken up on this. Others might reasonably take the position that now would be a good time for the Commission to get out of the business of trying to regulate indecency. This is particularly so since the FCC could claim that such a retreat was strictly a reaction to the Second Circuit’s decision. That is, if any critics tried to beat up on the Commission for giving up too early, the Commissioners could simply respond that the Court made them do it.

While the FCC plans out its next move on the litigation front, what about all those indecency complaint proceedings which have been piling up at the Commission over the last several years?

The good news is that, in the aftermath of the Fox decision, it seems very unlikely that the FCC would attempt to take any enforcement action based on pending complaints. After all, the Second Circuit told the FCC in no uncertain terms that the Commission’s indecency policy is unconstitutional. With the Second Circuit’s order sitting there, the Commission seems to have no choice but to stand down unless/until that order is reversed. So don’t expect to see any more fines or forfeitures or notices of apparent liability or even letters of inquiry relating to allegations of indecency while the Second Circuit’s Fox decision is alive and kicking. 

And similarly, anyone who is already in the middle of an indecency inquiry – say, for example, every Fox affiliate who received the American Dad inquiry – is probably off the hook for responding to the FCC’s questions.  (The Commission could theoretically ask the Second Circuit to stay the effectiveness of its order. The odds that such a request might be granted fall comfortably in the “good luck with that” range.)

Ironically, the FCC’s likely inaction on pending complaints is bad news as well. Lack of FCC action would mean that all the stations whose license renewals have been held up for years solely because of pending indecency complaints would probably not see those renewals granted in the short term. That’s frustrating: once a court has determined that an agency is acting unconstitutionally, regulatees who have suffered and are continuing to suffer from such unconstitutional activity should logically be entitled to prompt relief. While it would be nice if the Commission were to do the right thing here, you probably shouldn’t count on that happening. Pending applications are likely to remain pending.

The Commission could clear up any uncertainty about all these things by issuing a public notice setting forth its plans. If that happens, we’ll let you know. In the meantime it would probably be advisable not to hold your breath.