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

When the Supremes decline to review a case (which they do in the vast majority of cases that get filed with the high court), the action is normally reflected in a simple nine-word order – “The petition for a writ of certiorari is denied.” That means that at least six of the justices saw no reason to hear the appeal. The final order in the Jackson case followed that course.

But in the Jackson case, Chief Justice Roberts bothered to write a two-page concurring opinion questioning whether the Third Circuit had really gotten it right. The Third Circuit’s decision was based on the notion that the half-second exposure of Ms. Jackson’s right breast was essentially the same as a “fleeting expletive”. As to that analogy, Roberts says “I am not so sure.” As he sees it, images are different from words. To hammer that point home, he quotes the prosaic proverb, “a picture is worth a thousand words”.

But, given the Court’s decision in FCC v. Fox, Roberts acknowledges that the distinction is in any event immaterial: “[i]t is now clear that the brevity of an indecent broadcast – be it word or image – cannot immun­ize it from FCC censure.”

This underscores the narrowness of the Fox decision and the continuing vitality of indecency regulation, at least in the Chief Justice’s mind. While the bottom line in Fox was that Fox and ABC got off the hook, that happy result was based on the technicality that the broadcasts in question had occurred before the Commission had announced, in 2004, that fleeting expletives (and, by extension, fleeting images) were taboo. The Court’s opinion left wide open the question of whether the FCC could, consistently with the First Amendment, penalize such broadcasts occurring after the 2004 announcement. It also left open the question of whether the FCC could penalize other instances of non-fleeting language (or images), regardless of whether they were aired before or after the 2004 announcement.

Roberts’s separate opinion clearly suggests that he, for one, believes that the FCC’s indecency policies can, should and do live on post-Fox. 

On the other hand, adding still more flair to the Court’s denial of review in the Jackson case, Justice Ginsburg also weighs in with a concurring opinion. It consists of one sentence, which we reproduce here in toto:

The Court’s remand in FCC v. Fox Television Stations, Inc., 567 U. S. ___ (2012), affords the Commission an opportunity to reconsider its indecency policy in light of technological advances and the Commission’s uncertain course since this Court’s ruling in FCC v. Pacifica Founda­tion, 438 U. S. 726 (1978).

That, of course, echoes her concurring opinion in Fox in which she announced her strong belief that the Court’s first and only (thus far) endorsement of indecency regulation (in Pacifica) was “wrong”. (Memo to Justice Ginsburg: Could you try not to sugarcoat it next time?)

So there you have it: a court that is still split on whether the government can constitutionally regulate broadcast indecency. We’ve had to live in the shadow of that uncertainty since the 1978 Pacifica decision. It looks like we’ll be living with for some time to come.

Several justices have historically demonstrated uneasiness with the notion of removing regulations they perceive as necessary (or at least useful) in maintaining some sense of morality or decorum on the public airwaves. No big surprise there – I have repeatedly noted in earlier posts that the Court has been cautious about language and decorum. (For instance, they frown on use of the actual words – fuck, shit, etc. – in the courtroom or in their opinions. They opt instead for euphemisms like “f-word” and “s-word”.) In particular, it was always highly unlikely that Justices Roberts, Scalia and Alito were going to sign on to a decision opening the airwaves to what they felt would be a cacophony of indecency.  

Furthermore, this Court has always been somewhat cautious when it comes to First Amendment cases (as I have discussed in previous posts). I have detected little sentiment on the Roberts Court for actions that completely overturn longstanding laws based on facial First Amendment challenges. And, truth be told, the Court has historically not shown any such sentiment. In fact, the longstanding principle of “constitutional avoidance” holds that the Court will not take on a constitutional issue when it can dispose of a case via other means.

So it’s not surprising that the Court as a whole may have been reluctant to push the button on the First Amendment thermonuclear option when a narrower alternative was available. 

Blogmeister: But the “narrower” alternative here was still a constitutional provision – the “due process” clause of the Fifth Amendment. How does that fit into any “constitutional avoidance” notion?

Swami: Sure, it’s still the constitution, but look at the differences. Assume that everybody agrees that the FCC should not have penalized the Fox and ABC broadcasts at issue here. To get to that result through the First Amendment, the Court would have had to hold that the FCC’s indecency policies – or at least some significant subset of them – are barred by the First Amendment. That would open up a whole host of follow-up questions that would almost invariably take the Court back to Pacifica. By contrast, the Fifth Amendment approach the Court used allowed them to find that, whether or not the indecency policy is consistent with the First Amendment, the two broadcasters (Fox and ABC) didn’t get the due process notice to which they were entitled under the Fifth Amendment. Net result: the penalties meted out to those two broadcasters are tossed without anybody having to come to grips with the First Amendment arguments.

This is, of course, very frustrating for those of us who have been waiting patiently for some conclusive ruling by the Supreme Court as to the constitutionality of the FCC’s indecency policy. When it agreed to hear the Fox case this time around, the Court specified that the only question to be considered was

[w]hether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution.

Many of us read that to refer to the overall indecency regime as a whole, not merely the particular application of that regime to two particular parties. We obviously guessed wrong.

(This is a good time to point out another possible reason that the Court decided this unanimously and narrowly. It’s a hypothesis advanced by UCLA professor Eugene Volokh. Volokh theorizes that the recusal of Justice Sotomayor left the Court in serious danger of a 4-4 split on the merits if it ruled on the overriding First Amendment issue. That would have been the worst possible result, leaving the Second Circuit decision in place but providing no Supreme Court precedent. The narrow decision was therefore a tactical means of getting to a result favored by all justices without forcing the Court through a divisive and ultimately deadlocked First Amendment analysis.)

Blogmeister: But that doesn’t mean that the First Amendment problems with the FCC’s indecency policy have gone away, does it?

Swami: Absolutely not. That issue isn’t going away. The Court’s unwillingness in the Fox case to address that issue squarely, for once and for all, means we’re almost certain to be back here several years from now (maybe just in time for another election day). 

Blogmeister: OK, so here we are, with a very narrow, largely analysis-free Supreme Court decision based on Fifth, not First, Amendment grounds – a decision that appears to apply only to these three broadcasts.   What comes next?

Swami: That’s unclear.  According to the Supremes, “[t]he judgments of the United States Court of Appeals for the Second Circuit are vacated, and the cases are remanded for further proceedings consistent with the principles set forth in this opinion.” So the Second Circuit’s broad, sweeping (and, to many us, welcome) opinion holding the indecency policy to be inconsistent with the First Amendment has now been tossed by the Supremes. As a result, the FCC’s indecency regime, as a whole, remains in place.

I’m guessing the Court is also telling the Second Circuit that it should simply and quickly issue an order reversing the FCC’s actions for the reasons stated by the Supremes. Since the Second Circuit obviously feels strongly about this case – you can tell that from its first two opinions – I suppose it’s possible that the Circuit might use the opportunity of a remand to signal how broadly it plans to read the Supreme Court’s decision and whether the Second Circuit will continue to be the “go-to” circuit for indecency cases. And you can take the Swami’s word for it – there will be more indecency cases. As the Supreme Court expressly observed, its decision leaves the courts “free to review the current policy or any modified policy in light of its content and application”. 

The more intriguing question, though, is how the FCC will react to this decision. It obviously just dodged a bullet. Does it tweak its indecency policy, does it massively overhaul that policy, does it scrap the policy entirely, or does it just leave it the way it’s been for the last six-seven years? In light of the Commission's traditional behavior, I suspect it’ll be the last option – the FCC as Decency Police will continue to pound the beat – but you never know. After all, we now have Justices Thomas and Ginsburg on the record saying that they seriously question whether the indecency policy could withstand First Amendment scrutiny. At some point the FCC may be able to take a hint.

Blogmeister: And beyond that, what does the Supreme Court’s decision mean for indecency cases pending at the FCC?

Swami: That, too, remains to be seen. In a perfect world, the Commission would go through all the million or more still-pending indecency complaints and divide them into two groups: (a) complaints involving “fleeting expletives” and (b) all others. Then it would take all the complaints in Group (a) and subdivide them into two categories: (i) those that occurred prior to the 2004 Golden Globes decision that announced an end to the Commission’s previous “fleeting expletive” policy (i.e., the policy that let such instances slide without penalty), and (ii) those that occurred after. I get the need to draw that latter line from Justice Kennedy’s majority opinion. He makes a point of saying that “[the] regulatory history, however, makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent”  (emphasis added). 

So once all complaints involving fleeting expletives or nudity that occurred before the 2004 Golden Globes decision are identified, the Commission would promptly dismiss them, since they would all be essentially identical to the Fox/NYPD Blue situations. All other complaints would be left for routine processing.

But with the sheer volume of pending complaints, it’s hard to imagine that the Commission is in a position even to begin such a triage process.

And let’s not forget the fact that, even if the FCC goes ahead with indecency complaints which may survive the Supreme Court’s decision, and even if it ends up issuing fines in those cases, the government will be hard-pressed to collect any fines in cases older than five years. That’s because of 28 U.S.C. §2462, a federal law that requires that lawsuits by the Feds to enforce a civil fine, penalty or forfeiture be initiated within five years after the underlying claims accrue. The Communications Act provides that, if a licensee hit with a fine simply declines to pay, the FCC’s only recourse is to sue the licensee for payment – and until that suit is finally resolved in favor of the FCC, the Commission can’t use the licensee’s alleged violence in any way that might prejudice the licensee. So any case that would be subject to the five-year statute of limitations in 28 U.S.C. §2462 could (and, in an ideal world, should) all be summarily tossed regardless of the Fox decision.

Blogmeister: When you look into your crystal ball, what do you see happening on the indecency front?

Swami: The Court told the FCC expressly that the Commission “remains free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements.” And it told the courts that they are “free to review the current policy or any modified policy in light of its content and application”. 

So we could see the FCC revise its policy. Or we could see the FCC stick to its guns, applying the current policy against another broadcaster in one of those nonfleeting expletive or post-Golden Globe cases. If that broadcaster then brings challenges the constitutionality of the entire scheme, that challenge could work its way up the courts, finally returning to the Supreme Court, maybe just as we round into yet another Presidential election year.

Or not. Concentrate and ask again later.

In fact, it assiduously avoided even coming close to Pacifica. Pacifica, of course, upheld – against a strong First Amendment attack – the FCC’s general authority to regulate broadcast indecency. This time around, the Court is relying on the Fifth Amendment’s due process clause (which, for our purposes here, assures adequate “notice”). Hence, Pacifica lives on.

But for how long? That’s where Ginsburg’s terse concurrence is particularly intriguing. It reads, in its entirety, as follows:

In my view, the Court’s decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), was wrong when it issued. Time, technological advances, and the Commis­sion’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration. Cf. FCC v. Fox Television Stations, Inc., 556 U. S. 502, 532–535 (2009) (THOMAS, J., concurring).

Now bear in mind that, the last time the Fox case rolled through the Supremes (back in 2009), Justice Thomas said pretty much the same thing (as Ginsburg's citation to Thomas’s 2009 Fox concurrence acknowledges). That makes two justices, on polar opposite ends of the ideological spectrum, ready to pound a stake into the heart of Pacifica. 

Check back here later for a more complete analysis by Swami Kevin Goldberg.

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.

To review the recent history of the case, we go back to 2008, when the Third Circuit first reversed the FCC’s decision to whack CBS with a $550,000 fine. Its decision was based on administrative, rather than constitutional, grounds. That is, the court concluded that the FCC’s imposition of a fine for a “fleeting” exposure of a breast was inconsistent with previously-established Commission policies. While the FCC can, of course, change its policies if it wishes, in doing so it must provide notice and an explanation of the change. According to the court, the Commission came up short on the whole notice/explanation thing. Because it found that the case could be resolved on non-constitutional grounds, the court did not take on CBS’s First Amendment arguments.

The FCC asked the Supreme Court to review the Third Circuit’s decision. However, in the meantime the Supremes considered a similar decision from the Second Circuit in the Fox case. In that case, the Supreme Court held that the FCC had adequately explained the apparent abandonment of its “fleeting expletive” policy. As a result, in May, 2009, the Supremes shipped the Fox case back to the Second Circuit for further consideration, and at the same time it shipped the CBS case back to the Third Circuit.

A year later (in July, 2010), the Second Circuit cranked out its decision on remand. There the Second Circuit held that the Commission’s indecency policy violates the First Amendment because it is unconstitutionally vague.   The FCC promptly asked the Supremes to look at that decision, and the Supremes agreed. As noted above, we’re expecting that that case will be argued in early 2012, and a decision should be out by July, 2012.

Meanwhile, the Third Circuit took its own sweet time . . . some 16 months longer than the Second Circuit. And the result of its deliberations, issued November 2, 2011, is nowhere near as dramatic as the constitutional gauntlet thrown down by the Second Circuit.

Instead, the Third Circuit has again concluded that the FCC’s decision in CBS reflected a change in policy that was not adequately announced or explained. Even though the Supreme Court’s 2009 opinion in Fox accorded the Commission considerably greater leeway to change policies than the Commission had previously been thought to enjoy, the Third Circuit remains convinced that the FCC’s CBS decision cannot survive even the more relaxed standard set out in Fox. 

And even the dissenting judge on the Third Circuit panel would reverse the CBS decision and remand it to the FCC. In his view, the Commission did not apply the proper standard of mens rea (a legal concept relating to the accused party's level of improper intent or "guilty mind"), so he would send the case back to the Commission for further consideration.

Where the case goes from here isn’t clear. The Commission could ask the Third Circuit to reconsider its position. (That’s the approach the Commission tried, without success, in the Second Circuit.) The Commission could try to haul CBS back up to the Supremes. Or the Commission could throw in the towel.

Since the Commission hasn’t said die on this yet, it’s probably a pretty good bet that they will continue to fight the fight, at least in the short term. The goal would be to try to keep the case alive in some venue at least until the Supreme Court acts in the Fox case next year. If the Supremes decide that the FCC’s overall indecency policy runs afoul of the First Amendment, then presumably the FCC will drop any further appeal in the CBS case, as there will no longer be any indecency policy to enforce. But if the indecency policy somehow survives Fox’s constitutional challenge, the FCC might want to continue to slug it out with CBS on the non-constitutional issues.

So here we are, nearly eight years after Ms. Jackson’s 9/16 second exposure, with at least several months – and maybe a year or more – of additional litigation ahead. But for the foreseeable future, the broadcast interests (represented by Fox and CBS) appear to be in the driver’s seat. Let’s hope they stay there.

Had the Commission chosen not to take the cases up to the Supremes, the Commission would have been unable to continue those efforts without first radically revising its regulatory approach. (The alternative, of course, would have been simply to walk away from indecency enforcement entirely – an alternative that was, obviously, not the Commission’s first choice.) Such a radical revision would have sucked the Commission back into the regulatory and constitutional quagmire of indecency regulation that has existed for nearly four decades since the Supreme Court’s seminal decision in Pacifica (often referred to as “the seven dirty words” case).

So the Commission is going with a Hail Mary to the Supreme Court, apparently hoping that the Supremes will tell the Second Circuit that its Fox and NYPD Blue rulings were wrong.

We won’t get deeply into the specifics of the FCC’s arguments to the Supreme Court here. Since the next act of the indecency soap opera could play out over the next year or so, there should be plenty of time for that down the line. But here are a few things to know that might help you appreciate the drama as it unfolds.

First, even though the FCC has asked the Supremes to review the Second Circuit decisions, there’s no guarantee that that request will be granted. Unlike the federal circuit courts of appeal, the Supreme Court is not (except in very, very rare instances, and this isn’t one of them) required to take cases just because one of the litigants asks it to.

A party wanting the Supremes to consider its case files a petition explaining why the issues in the case are important enough to warrant the Court’s attention. (Want to impress your lawyer friends? The technical name for such a petition is “petition for certiorari” – that last word generally, but not invariably, being pronounced “sur-she-or-RARE-eye”. You can also short-hand it as “cert petition”, where “cert” is pronounced like the candy/breath mint.) The Supreme Court rules describe the types of issues that might get you in the door. Essentially, they’re looking for cases involving some “important federal question”, particularly if the lower court has decided that question in a way that conflicts with decisions by the Supreme Court or other courts of appeals.

In its petition (which was co-signed by the Solicitor General, as is customary but not mandatory in such cases), the Commission argues that the Second Circuit’s decisions conflict with the Supreme Court’s 1978 Pacifica decision and a couple of 1990s-era indecency decisions out of the D.C. Circuit. The Commission also claims that the Second Circuit’s “vagueness” analysis was inconsistent with a 2010 Supreme Court decision. And finally, the Commission asserts that, if the Second Circuit rulings remain in effect, the Commission will be unable to do what Congress has told it to do, i.e., enforce the statutory prohibition against the broadcast of indecent material.

The next step in the process will be the filing of oppositions to, and/or statements in support of, the FCC’s cert petition. Oppositions are due within 30 days of the FCC’s filing (i.e., by May 23), unless the time gets extended. Once oppositions are filed, the Court will hunker down, read through the pleadings, and decide whether to take the case. Since the Supreme Court’s annual term traditionally wraps up by the end of June or early July, it’s obviously too late to get the case briefed and argued this term, but there’s at least a chance that the Court might rule, before it closes up shop this summer, on whether or not it will hear the case next term.

If the Court denies the Commission’s petition, that’s just about all she wrote – the Second Circuit decisions will then stand and, if the FCC’s petition is accurate, the Commission will be “preclude[d] . . . from effectively implementing statutory restrictions on broadcast indecency”. If the Court grants the petition, it will set a briefing and argument schedule that would probably call for arguments sometime this Fall. In that case we’d be looking for a decision on the merits from the Court by the end of the term, i.e., by July, 2012.

Oddsmakers usually don’t give cert petitions much chance. The Court gets lots of them, but ends up granting only a tiny percentage. This case may be different, though. The Fox case has already been to the Supremes once, which suggests that the Court may have an interest in taking a look at the constitutionality of indecency regulations. That is, after all, a question which the Court has not revisited in more than 30 years. (On its first trip to the high court in 2009, the Fox case was resolved on non-constitutional grounds, which set the table for the Second Circuit to issue a ruling on constitutional grounds, leading to the current state of affairs.)

That’s the good news for the Commission.

The bad news is that, if the Court does take the case, the Commission may find the Court interested in significantly more than mere indecency. As one of my fellow bloggers observed last year,

in his separate opinion in the Supreme Court’s 2009 Fox decision, Justice Thomas specifically invited reconsideration not only of Pacifica, but also of Red Lion. Red Lion is the 1969 Supreme Court decision upholding the Fairness Doctrine (and, by implication, special regulatory treatment for broadcasting) because of the supposed “scarcity” of broadcast spectrum. Thomas referred in particular to the “questionable viability” of both Red Lion and Pacifica. If four of his colleagues were to agree with Thomas that the scarcity rationale is no longer valid, that could cause massive upheaval in virtually every aspect of the FCC’s operation. 

So there is at least some basis for thinking that the Court could see this case as an opportunity to review the continued viability of the “scarcity rationale” which forms the historical foundation of much of the FCC’s regulation of broadcasting. If that were to happen, it’s at least conceivable that the Commission could lose not only its ability to regulate indecency, but its ability to regulate broadcasting as it has for decades.

So the stakes could definitely be high for all concerned. We’ll keep you updated on the action as it goes down.