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

Enter Marvin and Laura Horne, mom-and-pop raisin growers, who failed to turn over a stated portion of their crop, as required, to the Department of Agriculture’s Raisin Administrative Committee. (Who knew that raisin growers are required, by a Great Depression-era law, to turn over a percentage of their crop to the government? Details here – it’s worth the read, because you can’t make this stuff up.) The powers-that-be in the Agriculture Department were not pleased, and they brought the enforcement hammer down. The fines and penalties for the Hornes’ alleged offense totaled more than $650,000.

Mr. and Ms. Horne sought to challenge these sanctions, arguing in part that the requirement to surrender their raisins was an unconstitutional “taking” under the Fifth Amendment.

Their dispute reached the U.S. Supreme Court on the question of how the Hornes could bring their case: (1) by a direct challenge through the routine federal courts (the Hornes’ preference); or (2) by paying the fines and penalties and suing to get the money back in a different court under the Tucker Act, which governs many kinds of claims against the federal government.

The Ninth Circuit had concluded that, if the Hornes wanted to press their “taking” argument, they would have to do it under the Tucker Act after paying the penalties because otherwise their claim, in an ironic turn of judicial phrase for a raisin-related case, would be “unripe”.

A unanimous Supreme Court reversed that holding. It found that the Hornes could and should have been permitted to make their “taking” argument in their direct challenge to the Agriculture Department’s enforcement efforts, rather than having to wait to raise that argument in a separate Tucker Act lawsuit after the fine was paid. The Supremes said in passing, and of interest to us:

In the case of an administrative enforcement proceed­ing, when a party raises a constitutional defense to an assessed fine, it would make little sense to require the party to pay the fine in one proceeding and then turn around and sue for recovery of that same money in another proceeding.

The regulatory scheme (and related judicial review provisions) governing the raisin business are very different from those of the Communications Act, so it’s by no means a given that the Supreme Court’s decision will necessarily be applicable to FCC enforcement actions. But the quoted passage could arguably be read to apply in that context, at least where the target of an FCC fine mounts a constitutional defense. The Horne case thus opens the possibility that an FCC forfeiture defendant – especially one with a constitutional defense – might get directly into the Court of Appeals without first paying the forfeiture. That could afford a small but important tilt in the balance between the FCC and the people it regulates.

As I outlined in my earlier post (where you can find the underlying facts, in case you’ve forgotten them), this case came down to two issues: (1) whether the Virginia statue’s restriction violates the Privileges and Immunities Clause of the Constitution because it affects fundamental rights, and (2) whether it violates the “Dormant Commerce Clause” because it interferes with the “natural functioning of the interstate market either through prohibition or through burdensome regulation”. Petitioners McBurney and Hurlbert advanced four separate Privilege and Immunities Clause-based attacks on the Virginia law. 

Here’s how Alito addressed each of those attacks:

1. “Virginia’s citizens-only FOIA provision abridges [Hurlbert’s] ability to earn a living in his chosen profession, namely obtaining property records from state and local governments on behalf of his clients.”  The Court agreed that the Privileges and Immunities Clause protects the right of citizens to “ply their trade, practice their occupation, or pursue a common calling”. But according to Alito, a law violates the Clause only when the law is enacted for “the protectionist purpose of burdening out-of-state citizens”.  Here the Court found no such “protectionist purpose”. The Virginia statute was enacted to “ensure [Virginians] ready access to public records in the [state government’s] custody . . ., and free entry to meetings of public bodies wherein the business of the people is conducted.” The law is, thus, non-protectionist: it merely allows citizens to oversee the actions of those who govern them.
2. “The Virginia FOIA abridges the right to own and transfer property in the Commonwealth”. Alito simply found the Virginia law has no such effect, since it provides for the release of these property records through other means (primarily the court system).  
3. “[The Virginia law] impermissibly burdens [Petitioner’s] ‘access to public proceedings’”. Alito responded here (figuratively, unlike his literal, but silent, mouthing during the 2010 State of the Union Address): “Not true”. First, the Privileges and Immunities Clause doesn’t require that citizens and non-citizens be treated equally. But, more important, citizens and non-citizens do have equal access to Virginia’s judicial records. In fact, when McBurney’s FOIA request was denied, he used another law to receive much of the same information he had sought under FOIA. So the restriction cannot be said to impermissibly burden non-citizen’s ability to access Virginia courts.
4. “[T]he Virginia FOIA . . . denies [non-Virginia citizens] the right to access public information on equal terms with citizens of the Commonwealth.”  Here, Alito claimed that the Court has “repeatedly made clear that there is no constitutional right to obtain all the information provided by FOIA laws.”   Taking a stroll through the history of access to information, he observed that, prior to the enactment of the federal FOIA in the late 20th Century, any access to information was guaranteed only to persons with a direct interest in the matters contained in the requested records. So, while Petitioners might have legitimate constitutional rights to earn a living, own or transfer property, or have access to public proceedings (i.e., the rights addressed in the first three arguments summarized above), there simply is no fundamental right in access to information. [Swami’s note: I just threw up in my mouth a little as I wrote that]. 

However, as I made clear in my post-argument prediction, I didn’t think the case would turn on the Privilege and Immunities Clause, even though I firmly believe that access to information is and should be a fundamental right in a democracy. The fact that at least some members of the Court don’t share my belief was apparent during the argument (as I reported). But I sensed at least a split on the Dormant Commerce Clause issue, which a two-part analysis: (a) FOIA-obtainable information is part of the stream of commerce, and (b) the law impermissibly favors Virginia citizens over non-citizens.   

How wrong could I be? As it turns out, the Court didn’t even get to the second portion of that analysis because the nine Justices, led by Alito, concluded that Virginia’s law doesn’t regulate or burden interstate commerce. Rather, the Virginia FOIA law – and, presumably, all FOIA laws – are purely political creatures not related to commercial matters. (This will doubtless come as news to the biggest single segment of requesters of information under the federal FOIA: commercial requesters seeking information about competitor businesses). Further, the Court decided, even if there were a “market” for public documents in Virginia, it’s a market that Virginia created and administers, which, based on earlier cases, means it cannot implicate or violate the Dormant Commerce Clause.

So where does this leave us? 

In the short term, we can expect to see more states start to limit FOIA requests to citizens only (for those keeping score, states already doing so include, in addition to Virginia: Alabama, Arkansas, Missouri, New Hampshire, New Jersey, Tennessee and, though the Third Circuit threw out their law, Delaware). Why? Because from the state’s perspective, such citizens-only restrictions keep costs down and limit the amount of information the state must produce.  What state doesn’t want to do that? And now everybody knows exactly how to draft and justify such a restriction to ensure they withstand constitutional scrutiny.

More disturbingly, perhaps, we have all nine Justices of the Supreme Court of the United States on record as viewing open records laws with disdain, if not outright contempt. How could the Court – and especially its liberal members – endorse this flip blow-off of the right to access public information:

[The broad-based right to access public information is not] “basic to the maintenance or well-being of the Union.” . . .. FOIA laws are of relatively recent vintage. The federal FOIA was enacted in 1966 . . . and Virginia’s counterpart was adopted two years later. . . . There is no contention that the Nation’s unity foundered in their absence, or that it is suffering now because of the citizens-only FOIA provisions that several States have enacted.

I expected that from Alito and Scalia (shoot, I’ve heard Scalia express it in so many words before). But not from some of the others. It’s very disheartening.

Still, the Swami will press on, firmly committed to the goal of maximum access to government information. I won’t let this get me down. I can’t let this get me down. Big majorities of the Court have been wrong before (obvious examples: Plessy v. Ferguson 7-1, Dred Scott 7-2). Let’s just hope that this latest instance can somehow get turned around before too much damage is done.

Now that the U.S. Supreme Court has denied ivi’s bid for “certiorari” (the high-falutin, legalese term for an appeal to the High Court), it’s looking more like ivi may be exiting the marketplace.  Granted, the Courts to this point have ruled only on the issue of the preliminary injunction, so the case is technically not done – thus far ivi has been told only that it can’t operate pending the outcome of the full lawsuit on the merits.  But things aren’t looking good and that’s usually the death knell for many start-up companies. 

Let’s be clear that I am not reveling in any of ivi’s misfortune.  I distinctly appreciate and support innovation and have argued that Congress and the Copyright Office should consider changing the relevant laws to create a place at the video distribution table for ivi and its brethren. But let’s face facts.  ivi hasn’t operated in about two years, and it’s hard to see how ivi could have raised revenue to keep the fight going; one also has to wonder whether it’s been able to attract funders to its cause in the face of repeated judicial defeats.

Lacking the nutrients necessary for any business to survive, and facing the toxicity of multiple losses on the judicial front, ivi may simply wither away like so many innovators before it.

But even if ivi does wither, other contestants remain in the video-delivery-by-Internet race.  Ivi’s legal theory was, for instance, distinct from the theory underlying approach taken by Aereo and its quasi-twin, AereoKiller. As our readers know, though, that latter approach has received mixed reactions in court, with Aereo preliminarily succeeding while AereoKiller not so much.

One of the limited exceptions to the “citizens-only” limit makes the Virginia FOIA available to print and broadcast journalists, but only if their newspapers, magazines or stations reach into Virginia. My client, the American Society of News Editors (ASNE) joined amicus briefs in the Fourth Circuit, and then in the Supremes (a brief supporting the grant of cert and a separate brief on the merits) in support of the McBurney/Hurlbert challenge

ASNE’s interest in the case is understandable. Virginia is one of only three states that have citizens-only FOI laws; a decision upholding Virginia’s law could lead the other 47 states to jump on the citizens-only bandwagon. And that in turn could result in unnecessary burden and expense for journalists, who would be forced to pursue state-based FOI requests by proxy, i.e., hiring others to make the requests on their behalf.

The issues before the Court were whether the “citizens only” provision violates one or another of two constitutional provisions, either (a) the Privileges and Immunities Clause (Article IV, Section 2, Clause 1) or (b) the “Dormant Commerce Clause”. The latter is a doctrine, derived from the Commerce Clause (Article I, Section 8, Clause 3), which provides that a state shall not unreasonably discriminate in favor of its own citizens and against non-citizens in matters of interstate commerce. 

To win, McBurney/Hurlbert will have to show: first, that access to records under a state FOI law is either: (1) a fundamental right (triggering the Privileges and Immunities Clause) or (2) an activity constituting or affecting interstate commerce (thus triggering the Dormant Commerce Clause); and second, that the law unreasonably discriminates against non-citizens.

As I joined fellow amateur-court watchers – and some professional reporters – outside the courtroom post-argument, at least a few thought the Court would rule in favor of the state.  I initially thought so as well. After all, the first 20-30 minutes didn’t go so well for the challengers. But by the end of the arguments, the tide had swung quickly and swung hard, so hard that I swore I saw Earle Duncan Getchell, Jr., Virginia’s Solicitor General, noticeably fidgeting.   So trying to pick up reliable signals from the back-and-forth between Justices and counsel wasn’t easy – it seldom is.

But I’m the Swami, and reading those tea leaves is what I do. So here goes.

I think the Court will, by a 6-3 vote, find the Virginia statute violates the Dormant Commerce Clause.   Chief Justice Roberts will be joined in the majority by Justices Kennedy, Breyer, Ginsburg, Sotomayor and Kagan. Justices Scalia, Thomas and Alito will be in the minority.

Let’s start with my predicted minority. 

As usual, Justice Thomas didn’t ask a single question; Justice Alito didn’t either. But, given their historical positions, I think it’s safe to say they’ll side with Virginia on this one. Justice Scalia, who did ask a number of questions (no surprise there), also seemed skeptical of the notion that Viriginia should be required to open up its records to anybody. At one point he mused that Virginia “do[es]n't want outlanders mucking around in – in Virginia government. It's perfectly okay for good old Virginians to do that, but they don't want outlanders to do it. Why – why is that unreasonable?”

On the other end of the spectrum, Justices Ginsburg, Sotomayor and Kagan seemed clearly to favor Messrs. McBurney and Hurlbert. While – sadly – none seemed convinced that access to governmental-maintained information is itself a fundamental right, each did seem to believe that this information (and access to it) is an essential element of national commerce and that the state had no valid reason for hindering non-Virginians’ access to it.  (Sotomayor, in particular, launched into her questioning of Virginia’s Getchell before he even got a word in edgewise.) Each of these Justices appeared to have trouble understanding how the state could claim to be burdened by providing information to non-citizens, given that it really doesn’t cost the state any more to do so.

Chief Justice Roberts and Justices Kennedy and Breyer seemed a little more on the fence. But, in the end, I think they share Justice Sotomayor’s concerns. Both Roberts and Breyer, at different points, appeared frustrated by Getchell’s attempts to portray the Virginia FOI law as simply “political in nature” (which, according to Getchell, would mean the law couldn’t violate the Dormant Commerce Clause – an argument that Scalia seemed to buy completely). 

Roberts even dropped his usual poker face, wincing as Getchell tried to explain that the Virginia FOI law is not intended to, and does not, affect “commerce”. Breyer seemed to literally swat that argument away with the back of his hand. Kennedy pressed hard on the issue of whether the Court had the power to determine that the law does in fact affect commerce, contrary to Getchell’s insistence that there was no evidence to support such a conclusion.

So there you have it, kids. To repeat my bottom line – 6-3 in favor of McBurney/Hurlbert, in what would be a welcome affirmation of the importance of access to information. (The framers would have wanted it that way.)

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.

The focus of Brown was a 2005 California law prohibiting the sale or rental of “violent video games” to minors and requiring such games to be labeled “18.” (The law defined “violent video games” as those in which “the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that (a) “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors”; (b) is “patently offensive to prevailing standards in the community as to what is suitable for minors”; and (c) “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”)

The federal courts in California had ruled that the law violates the First Amendment. California asked the Supreme Court to reverse that ruling.  To California’s disappointment, the Supreme Court affirmed the lower court’s ruling by a deceptively strong 7-2 vote. Here’s a quick summary of the various opinions:

Majority Opinion by Justice Scalia (with Justices Kennedy, Ginsburg, Sotomayor, and Kagan joining):

Justice Scalia once again took up the cause for unpopular speech, acknowledging its rightful place in our society, no matter how tasteless that speech may be. In his words, “disgust is not a valid basis for restricting expression.”

Scalia devoted a good three pages to the idea that Stevens (the case on animal cruelty videos) not only prevents the creation of a new “unprotected class” of speech, but is just the latest in a series of cases in which the Court rejects attempts to “shoehorn speech about violence into obscenity.”   Not being a subcategory of unprotected obscene speech, violent speech receives full First Amendment protection. Justice Scalia noted that violence has existed in media for children (Grimm's Fairy Tales) to high school reading lists (The Odyssey, The Inferno,and Lord of the Flies), to mainstream novels and films. In rejecting California’s argument that video games present a special concern because they are “interactive,” Scalia gave a nod to one of my own favorite childhood book series, the “Choose your Own Adventure” books.

The California law could have stood only if it met the Court’s “strict scrutiny” test: “The State must specifically identify an actual problem in need of solving, and the curtailment of free speech must be actually necessary to the solution.” But California failed, said Scalia, to “show a direct causal link between violent video games and harm to minors.” Scalia argued that violent video games don’t cause harmful effects to minors, though there may be a correlation. The possibility of a correlation is not enough to restrict free speech, especially in a way that disfavors just one class of speaker:  the sellers of video games. Finally, said Scalia, there is no real need for this law in the face of the video game industry’s voluntary rating system, which he thinks works better than those used by the music and movie industries.

Concurring Opinion by Justice Alito (with Chief Justice Roberts joining):

Alito and Roberts concurred with Scalia, but their separate opinion feels more like a dissent than a concurrence. In their view, California has the authority to tackle violent video games, but they would require the State to define the term “violent video games” more precisely.

Alito agreed that society has been relatively tolerant of violent content, even where it is available to minors. This longstanding tradition of permitting violent speech to reach even the most sensitive eyes and ears provides all the more reason to clearly define a “violent video game” here. But Stevens is not controlling, he concluded, because that case involved the creation, possession or selling of animal cruelty videos by any person; by contrast, this case involved the sale or rental of violent video games to minors. He also felt Scalia’s opinion was far too quick to dismiss the effect of the “first person shooter” aspect of most violent video games on children. 

Dissenting Opinion by Justice Thomas:

A few years back Justice Thomas, in the “Bong Hits for Jesus” case, put forward the (to me) astounding theory that, since schools act in loco parentis, they can restrict student speech however they see fit. In Brown he has taken a similarly wide-ranging and paternalistic stance here: “The practices and beliefs of the Founding generation establish that ‘the freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech).”   I wonder how Thomas would describe the attitudes toward women and minorities around the time of the Bill of Rights, and how those attitudes play out in current First Amendment law.

Dissenting Opinion by Justice Breyer:

Justice Breyer’s dissenting opinion runs 35 pages, about half of which is an appendix listing studies purported to demonstrate a link between violent video games and violent behavior in children. Breyer feels that the California statute clearly explained what is prohibited because, he says, the words “kill,” “maim,” and “dismember” are no more vague than the word “nudity” as it appeared in an obscenity statute the Court upheld. In fact, said Breyer, the California law is quite similar to the Court’s Miller test for unprotected obscenity, with only a handful of words differing between the two. In his view, the California law is indeed narrowly tailored to a compelling government interest in protecting children.

Implications for Indecency

As reported elsewhere on CommLawBlog.com, the Court has agreed to review FCC v. Fox Television Stations. At issue there, of course, is whether the FCC’s indecency regime is constitutional under the First Amendment. That regime is meant to protect children from, among other things, “fleeting expletives” and the sight of a woman’s unclothed derrière, the allegedly indecent elements in Fox. After Brown, how will that case come out?

The Swami sees at least five votes against the FCC. Here’s what my crystal ball shows, viewed in the light of Brown:

Kagan, Sotomayor, and Ginsburg will rule for Fox. They were likely to do so anyway; their signing on to the majority in Brown only solidifies that in my mind. The fact that Justice Kennedy was part of the majority opinion here has me believing he is in the Fox camp as well, because he has generally been strong on First Amendment issues recently. 

The others are all wild cards to some extent, mainly because their position in Brown seems diametrically opposite to positions each has taken in earlier First Amendment cases.  Still, any of them could provide that all-important fifth vote for Fox; in fact, it’s more likely than not that two or three of these five will side with Fox:  

Scalia wrote the majority opinion in Brown, so you’d naturally believe he’ll take a similarly strict approach to indecency regulation. In fact, he’s been one of the strongest supporters of unpopular speech, back to his deciding vote in the Texas v. Johnson flag burning case.

But Scalia also seems to have an intense distaste for bad words, and might find a way to rule in favor of the FCC without being (at least in his mind) intellectually inconsistent.  For example, in his Brown opinion he placed great emphasis on the fact that violent speech is not a subset of already-restricted obscene speech; indecent speech is more closely related to obscenity, which Scalia might see as a meaningful consideration. Similarly, in Brown he relied on the traditional tolerance for violent speech in this country, a tolerance not shared with indecent speech.

Still, I’m relatively certain Scalia will put those considerations aside – much as he put aside the avowed distastefulness of these video games – and rule, as he did in Brown, that there is no “free-floating power to restrict the ideas to which children may be exposed.”

You might expect Thomas to vote for the FCC, given his extreme dissent in Brown. But don’t forget he was the lone Justice in an earlier Fox v. FCC case (on administrative procedure issues) to question not only the legality of the indecency regulations, but also the entire underpinning of the “scarcity doctrine” that to date has justified heightened regulation of broadcasters. 

Roberts has been very strong on free speech, having written the opinions in both Stevens and Snyder v. Phelps (involving the even more unpleasant conduct of the Westboro Baptist Church). Until his concurrence here, I would have said he’s a lock for Fox. I still believe he is going to rule that way, but he seemed ready to distinguish his own opinion in Stevens, and could find the FCC’s rules more acceptable than the California law in Brown.

At the same time, I’m perplexed by Alito’s vote to strike down the video game law, since he has been (to my mind) the weakest of the current Justices on speech issues. I think, though, that when push comes to shove, he’ll find a way to uphold the FCC.

Finally, there’s Breyer. Also generally strong on free speech issues, but the most likely of the Court’s “liberal bloc” to depart from the others, as he did in Brown. He has now shown that he can be persuaded by empirical evidence. Expect those on the FCC’s side in Fox to try to rely on such evidence. He really could go either way.

In the end, while the names and perhaps the justifications might change, I see FCC v. Fox Television Stations as a 6-3 or 7-2 victory for the broadcasters. Watch this space.

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.

In the end, the Court – including the three members I doubted – did the right First Amendment thing, as difficult and distasteful as that may have been given the facts of the case. The Court’s ruling (written by Roberts) is eminently predictable and not earth-shattering in the least.

So now that I’ve had a month or so to mull over the case (and to re-calibrate my crystal ball), here are some thoughts about what the Court’s decision means.

Turns out the Chief Justice is a First Amendment stud; Justice Alito not so much.   Conservative judges sometimes get a lot of flak for their First Amendment credentials (or lack thereof). That’s mainly due to the perception that they tend to favor considerations like “national security” and “morality” over free speech. During Roberts’s 2005 confirmation hearings, the Reporters Committee for Freedom of the Press published a review of his First Amendment views observing that “Roberts’ collected works leave cause for concern among free press advocates”.

But looks can be deceiving. As Chief, Roberts may have started slow, voting against student speech rights in the famous “Bong Hits for Jesus” case. But his opinions in last term’s United States v. Stevens and now in this case alleviate many concerns First Amendment advocates might have had. Indeed, I can’t remember as clear an endorsement of free speech as the conclusion of his opinion in Snyder v. Phelps:

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

By contrast, Justice Alito – the lone dissenter – took a very different First Amendment tack: “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” Context and emotion obviously mattered a lot to Justice Alito, who peppered his dissent with words like “malevolent”, “brutalize”, and “tumultuous” – and that was just the first full paragraph. He seemed to be attempting to shoehorn Westboro’s actions into the “fighting words” pigeon-hole of unprotected speech, likening those actions to a direct, face-to-face confrontation designed to provoke a violent reaction. (Think Chaplinsky v. New Hampshire, which Alito cited, but just once).  This is the second time in two years that Justice Alito has been the sole dissenter in a major First Amendment case. Assessing his dissent in United States v. Stevens, I observed that he has generally seemed to be paternalistic and protective of “society’s morals” in similar cases. Perhaps not surprisingly, he was very willing to side with the First Amendment in the Citizens United case involving campaign finance reform.

Snyder v. Phelps breaks no new legal ground. For all the controversy, the decision sets no new precedent.    

One key legal issue that attracted considerable attention was whether the Court would extend the protections given to defendants in cases involving claims of intentional infliction of emotional distress. The last time the Court visited this issue – and gave a resounding victory to the First Amendment – was the famous Hustler, Inc. v. Falwell decision, arising from a lawsuit brought by Jerry Falwell. Falwell was a public figure, seeking damages from Hustler Magazine because it exercised First Amendment rights. The Court concluded that, because of his “public figure” status, Falwell had a greater burden to meet – a pro-free speech factor which benefited the defendant, Hustler.

The Snyders, on the other hand, were anything but public figures before this entire mess began. Would that – should that – alter the First Amendment analysis?

Media groups said the “who” was actually less important than the “what”. That is, the fact that the Westboro Baptist Church was speaking about matters of public concern required full First Amendment protection regardless of who the plaintiff happened to be. The Chief Justice (and seven of his colleagues) agreed. As a result, a larger universe of speech will receive full First Amendment protection in such cases.

The Chief Justice also affirmed the considerable breadth of what constitutes speech involving matters of public concern. In his view, such speech can “be fairly considered as relating to any matter of political, social, or other concern to the community”. So Westboro’s signs and chants – inarticulate, offensive and hateful though they may be – fell within that definition. In other words, the Court rejected the argument that the defendants’ claims about the political nature of their speech were just a smokescreen to cover the fact that that speech was nothing but offensive.

This is entirely consistent with previous First Amendment cases which instruct courts not to judge the value or good/bad taste of the speech at issue. One example: Texas v. Johnson where flag desecration was held to be protected speech, despite the dissent’s view that such conduct isn’t speech at all, but rather “the equivalent of an inarticulate grunt or roar . . . most likely to be indulged in not to express any particular idea, but to antagonize others.”

The effect is likely to resonate through all areas of controversial speech. Like it or not (and many people won’t), this is a strong victory for all offensive statements, including “hate speech”. It may also augment protections in other areas, like defamation and invasion of privacy, if the courts choose to minimize the impact of the plaintiff’s identity and focus instead on the need to protect the right of free speech.

The Westboro Baptist Church will protest more funerals as a result of this decision but will still be acting from afar.  Westboro Church elders Fred and Shirley Phelps and lawyer/daughter Margie Phelps now believe they have the blessing of both church and state for their protests – and, to an extent, they do. Not surprisingly, they have indicated they will “quadruple” their protests.  They are committed and they are savvy – and they understand the limits of First Amendment law. They have always abided by any “time/place/manner” restrictions that local jurisdictions may have imposed on demonstrations. Indeed, that was a contributing factor to their victory: Justice Breyer concurred with Roberts largely because Westboro had complied with all relevant laws and had had no effective interaction with anyone actually attending the funeral. The Chief Justice noted this as well, writing: “simply put, the church members had the right to be where they were”. 

Perhaps bolstered by its victory, though, the church has indicated it plans to challenge the restrictions with which it has thus far complied. I think this reflects classic hubris on the Church’s part. Laws limiting protests near a funeral exist in 44 states. Such restrictions are routinely upheld as content-neutral restrictions not on the speech itself, but rather on the time, place and manner in which the speech is delivered. To get such restrictions tossed out, a challenger must ordinarily show that the restrictions are based on, and in fact intended to limit, the content of the speech itself. 

If the Church does plan to attack such time/place/manner laws, I think it will be biting off more than it can chew. It won’t be able to rely on just a single case. Rather, it will have to challenge every state’s law individually. That means at least 44 separate cases (one in each state). In each case it would face high hurdles – such as demonstrating that the state-imposed limits are completely arbitrary or clearly overbroad. Those are hard standards to meet, since courts tend to defer broadly to legislative determinations relative to the need for, and precise limits imposed by, such laws. And even if any particular state’s laws don’t appear now to have an adequate legislative foundation, I can imagine state lawmakers are already reviewing those laws with an eye toward taking any action – from revising existing laws to enactment of whole new laws – necessary to protect them from successful court challenge.

Bottom line: I may have misread Kennedy, Thomas and Roberts, but this is one case where I’m happy to have been wrong.  Make no mistake: this was a strong victory for the First Amendment, no matter how unsympathetic the successful litigant (in this case, Westboro Baptist Church) might be. And the Justices’ near-unanimity, especially in view of the facts presented to them, gives rise to cautious optimism on the free speech front. Let’s keep our fingers crossed.

The Court thoroughly disagreed with AT&T's position that the undefined term “personal” in FOIA Exemption 7(c)’s protection of “personal privacy” should derive its meaning from a separate statutory definition of “person” which can include a corporation. “Person” is a noun; “personal” is an adjective. They are different. Building on his favorite give-and-take during oral argument, the Chief Justice writes:

Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read,” Webster’s Third New International Dictionary 527 (2002); “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” id., at 509, which has little to do with “corn,” id., at 507 (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of an axis bent at right angles,” “cranky” can mean “given to fretful fussiness,” id., at 530.

That’s really all you need to know, as everything flowed from this initial tutorial. The Chief Justice showed he has “street smarts” as well as “book smarts”:

Certainly, if the chief executive officer of a corporation approached the chief financial officer and said, “I have something personal to tell you,” we would not assume the CEO was about to discuss company business. Responding to a request for information, an individual might say, “that’s personal.” A company spokesman, when asked for information about the company, would not. In fact, we often use the word “personal” to mean precisely the opposite of business-related: We speak of personal expenses and business expenses, personal life and work life, personal opinion and a company’s view.

Though the Chief Justice probably didn’t need to go beyond the plain language rationale for the holding – either for the sake of sound legal reasoning or in order to get the buy-in of the more liberal members of the Court – he did note that neither of two FOIA exemptions dealing with personal privacy (i.e., Exemptions 6 and 7(c)) has ever been read to apply to anything but an actual person. By contrast, other exemptions (primarily Exemption 4) relating to trade secrets appear to protect similar interests held by corporations.   That’s largely because, as the FCC pointed out during oral argument, legislative history and DOJ Guidance contemporaneous with the creation of Exemption 7(c) clearly define “personal” accordingly. 

So that’s it . . . well, almost. We’re compelled to point out two other aspects of the decision. First, for all the FOIA-geeks out there, the opinion makes no mention – and, more importantly, does not appear to buy into – the government’s strange and controversial position that FOIA exemptions should not be construed narrowly. Second, the Chief deserves a serious hat tip for the way in which he closed out his opinion:

We reject the argument that because “person” is defined for purposes of FOIA to include a corporation, the phrase “personal privacy” in Exemption 7(C) reaches corporations as well. The protection in FOIA against disclosure of law enforcement information on the ground that it would constitute an unwarranted invasion of personal privacy does not extend to corporations. We trust that AT&T will not take it personally.

Well worded, Your Honor!

CompTel filed a Freedom of Information Act (FOIA) request for copies of all pleadings and correspondence in the investigation file. AT&T parried with a gambit sometimes known as a “reverse FOIA”: it asked the FCC to reject CompTel’s request because at least some of the documents at issue were exempt from disclosure under FOIA Section 7(c). That section exempts from routine FOIA treatment information the disclosure of which “could reasonably be expected to constitute an unwarranted invasion of personal privacy”.  

The Commission denied AT&T’s request, paving the way for disclosure of AT&T’s documents to CompTel. AT&T appealed that denial to the U.S. Court of Appeals for the Third Circuit which, to the surprise of many, ruled for AT&T. (You can read more about the case on the website of the Reporters Committee for Freedom of the Press, in whose amicus brief ASNE joined.) The gist of the Third Circuit’s decision: a corporation may claim a personal privacy interest for purposes of FOIA Section 7(c).

So, there we were: up was down, black was white, corporations were people, and press organizations (like ASNE) which routinely find themselves opposed to the government in FOIA matters were suddenly siding with it.  It was like some bizarre joke. 

Thankfully, the Justices of the Supreme Court don’t have much of a sense of humor.  

As I gaze into my post-argument crystal ball, it seems clear that the Court will rule for the FCC with a 7-1 vote (8-0 being a less likely possibility and 6-2 an even less likely shot).  Why eight votes, when there are nine Justices? Justice Kagan recused herself from the case. 

In fact, I’ve rarely witnessed so one-sided an argument. This thing was over before it started. The government’s counsel received only a few questions, mainly from Justice Alito, and sat down with a full six minutes of his allotted time remaining; when he used his reserved time for rebuttal, he was asked no questions at all. That almost never happens.

The Court’s treatment of AT&T’s counsel seemed to confirm the Court’s preference for the FCC’s arguments. The questions started early (within 30 seconds), hit hard, then tapered off quickly, as if the Justices got their shots in, satisfied themselves that the FCC should win, and quickly got bored. 

So the Court appeared to like the government’s position – which may strike some as odd in view of the fact that it was just last year that the same Court issued a seemingly contrary decision. That would be Citizens United v. Federal Elections Commission, one of the most controversial decisions in recent years, in which the Court concluded that corporations are people for purposes of political advocacy and the First Amendment.

Here’s how I figure it:

First, I see a very solid six votes for the FCC.

Start with Justice Scalia, who loves two things above all else: plain language and original intent. The transcript of the oral argument in the AT&T case is riddled with illustrations of his mindset (like when he says that the phrase “personal privacy of a corporation” is a “very strange phrase to me”). That’s not a good sign for AT&T.

Since Chief Justice Roberts and Justice Thomas generally share this preference for plain statutory language, I think it’s safe to put them on the FCC’s side along with Scalia.

Justice Breyer was clearly skeptical as well, at one point asking AT&T’s attorney whether he could think of any examples where the government has asserted a personal privacy right under this exemption. The inevitable “No” response sealed his vote, and probably Justice Sotomayor’s as well. That would be two more votes for the government.

Justice Ginsburg seemed especially unconvinced by any of AT&T’s arguments about the supposed original “understanding” of this exemption.  One more pro-FCC vote there, giving us six solid in that category.

Justice Kennedy was a little tougher to read, mainly because he didn’t ask many questions. However, those he did ask were very similar: all were intended to clarify the distinction between a corporation acting in its own interest, on the one hand, and acting in the interest of, say, its employees, on the other. He seemed to be trying to confirm that: (a) employees can protect themselves when necessary; and (b) the corporation can raise other objections (such as whether the agency followed its own procedures). If he’s convinced that both of those are “yes”, he should be voting with the FCC (although, of these seven, he’s the most likely to go the other way).

I’m predicting that only Justice Alito will vote for AT&T. He seemed the most sympathetic to AT&T’s arguments, engaged in the most antagonistic questioning of the government’s attorney and, generally, is the most willing of the conservative judges to throw aside the “originalism” principle in favor of a particular result, especially where corporations are involved. Toss in the fact that he was previously a judge on the Third Circuit and, therefore, might be inclined to side with his former colleagues, and he’s the most solid vote for AT&T. 

So you heard it here first: the Swami’s calling this one a romp for the FCC and the government. Shoot, I'm so confident about the prospects of an FCC victory here that I’ll toss in a bonus prediction: look for Justice Scalia to write the majority opinion.

[A closing observation on jumping into bed with the enemy:  In FOIA litigation, folks on the side of the press normally find themselves at odds with the government. No surprise there: the press usually wants FOIA access to materials that the government doesn’t want to cough up. But in FCC v. AT&T, the FCC was happy to make the contested materials publicly available, so it made sense for press interests to support the Commission. However, the government’s counsel demonstrated why, even in such situations, the government isn’t the most reliable of allies. The government’s lawyer was asked by Justice Scalia whether FOIA exemptions should be construed narrowly. The simple answer could and should have been “Yes, of course” – since that would have been consistent both with the FCC’s position in this case and with earlier Supreme Court decisions regarding application of FOIA exemptions. But instead, the government’s counsel hedged, responding that FOIA exemptions “are to be given meaningful reach”. While that approach won’t help the government in this particular case, it’s likely to come in handy for the government in about 99% of the FOIA cases coming down the pike – including the Supreme Court’s soon-to-be-issued decision in another FOIA case, Milner v. Department of the Navy).]

ABC appealed the action to the Second Circuit, which had in 2007 invalidated the Commission’s indecency policy on non-constitutional grounds in the Fox case. Action on the ABC appeal was put on hold while the Fox case headed to the Supreme Court (in 2008) only to get bounced back to the Second Circuit (in 2009), which then held the policy to be unconstitutional in July of last year. (The FCC asked the Second Circuit to reconsider its Fox decision, but the Court declined the opportunity, as most of us expected it would.)

In pleadings filed in the ABC case, the FCC acknowledged that the 2010 Fox decision “invalidated the [FCC]’s indecency policy in its entirety.”  That is, there was nothing left of the indecency policy after Fox. And while there may be some arguable factual distinctions between the Fox case and the ABC case – for example, Fox involved mere unscripted language, while NYPD Blue involved “scripted nudity” – the FCC effectively conceded that those were immaterial because the legal principle announced in the Fox case didn’t depend on any particular factual distinctions. (For what it’s worth, the ABC Court expressly rejected the notion that there were in fact any significant distinctions between Fox and ABC.)

Since the ABC case involved the FCC’s application of its indecency policy, and since that policy had already been held to be unconstitutional (in the Fox case), the Second Circuit had little difficulty in concluding that the NYPD Blue fine should be vacated.

According to a brief notation in the decision, the Summary Order does not have any “precedential” effect, which means that the ABC decision itself will not be binding on the Court in any other cases that may arise. But that probably doesn’t make much difference, because it’s clear that Fox is binding. And given the ABC panel’s emphatic affirmation of the broad reach of the Fox decision, the FCC should not expect any different result out of the Second Circuit any time soon. So while the ABC decision may not add any new dimension to the indecency debate, it certainly suggests that the Second Circuit remains solidly committed to the rationale set out in Fox.

Where do we go from here? There are now three separate cases – Fox, ABC and CBS’s continuing saga relative to the Janet Jackson/Super Bowl matter – that could go to the Supreme Court sooner rather than later. Fox and CBS are not quite yet teed up to go straight to the Supremes, and in view of its total reliance on Fox, it seems unlikely that the FCC would attempt to take ABC up by itself. Whether the issue of the FCC’s indecency policy is ultimately brought back to the Supreme Court – and, if it is, whether the Supremes will agree to look at it – is anybody’s guess. But if the issue does make it up there, we could end up with a decision that fundamentally changes FCC jurisprudence as we have known it for decades: not just the law of indecency, but the extent to which the FCC may permissibly regulate any broadcast content.

Stay tuned.

[Blogmeister's Note: This post has been updated to reflect that the Second Circuit denied the FCC's petition for rehearing (on November 22, 2010).  The decision was largely unpublicized and unreported, and we found out about it only through our old friend Andy Schwartzman, who kindly brought it to our attention.]

It’s not an easy case to follow, let alone to choose sides in or to predict. In the eyes of many (including myself), to take the First Amendment side here is to align oneself with some bad actors who have done some despicable things. It’s not easy to support the Phelpses and it’s not easy to separate the heinous facts from the principles of law.

One party, Phelps, is a member of the Westboro Baptist Church, which is basically comprised of the Phelps family from Topeka, Kansas. Phelps kin constitute at least 50 of the 60 or 70 members of the church. Their extreme views include a belief that God is punishing the United States – especially the United States armed forces – for the country’s “permissive” views on homosexuality.  That belief leads them to protest at military funerals with signs condemning homosexuality (whether or not the soldier in question was homosexual).

The other party, Snyder, is the parent of Matthew Snyder, a Marine killed in Iraq in 2006. The Phelpses and their Church demonstrated at Matthew Snyder’s funeral.  Seven members of the Phelps family arrived with their usual inflammatory signs.  (How inflammatory? Very. For example, “Thank God for 9/11”, and “Fag troops”, and “You’re going to hell”, and “Thank God for dead soldiers”.) They also chanted. But in waving their signs and chanting their chants, they respected local ordinances as well as police requests and orders. In fact, while the rules required that they be at least 100 feet away from the church where the funeral was being held, they were actually over 1,000 feet away – and the funeral attendees never saw the signs or heard the chants.  (Matthew Snyder’s father testified that he wasn’t even aware of the protest until later that evening, when he saw it on a televised news report.)

The Phelpses also published a self-described “epic” on their website (www.godhatesfags.com). Titled “The Burden of Marine Lance Cpl. Matthew A. Snyder”, it claimed that the dead Marine’s parents “taught Matthew to defy his creator”, “raised him for the devil”, and “taught him that God was a liar”.  Again, though, the bereaved father didn’t read the “epic” until a few weeks after the funeral, when he found it after googling his son’s name.

Albert Snyder (the father) sued the Phelpses, claiming defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress (IIED), and civil conspiracy.  His claims were based as much upon the epic as the funeral protest. 

The trial court dismissed the defamation and publicity-to-private-life claims because most of the information contained in the epic was opinion, not fact, and the non-opinion portion consisted of factual information already publicly known from Matthew Snyder’s published obituary.  The trial jury found for the Snyder family on the other three claims, awarding $2.9 million in compensatory damages and $8 million in punitive damages.  The judge reduced the punitive damage award to $2.1 million, but otherwise left the jury’s verdict and award intact.

The Phelpses appealed to the U.S. Court of Appeals for the Fourth Circuit, which reversed the District Court’s judgment award.  It concluded that the Phelpses were addressing a matter of public concern and, therefore, that the First Amendment prohibited imposition of liability unless there is a “provably false factual connotation”. According to the Fourth Circuit, that prohibition applied not just to the defamation claim but to the intentional infliction of emotional distress (IIED) and invasion of privacy claims as well, no matter how shocking, outrageous or offensive the speech might have been. 

The Supreme Court took the case, identifying four issues for consideration. The issues touched on the interplay of principles involving free speech, freedom of religion, defamation, tort law and more.  So there’s clearly a lot going on here . . . and it showed during the oral argument. (I won’t summarize the argument – you can read the entire transcript for yourself or go all out and actually listen to it, thanks to the Supreme Court's website.) But here are some impressions and my prediction of the outcome.

First, the Justices seemed to have trouble getting to the heart of the case. As usual, Justice Thomas didn’t ask any questions. Justice Kennedy really didn’t participate until Margie Phelps was arguing. Newly-minted Justice Elena Kagan jumped right in, much as her fellow native New Yorker and next-junior associate Justice Sonia Sotomayor has been known to do.  Justices Scalia, Alito, Breyer and Ginsburg really dug into the attorneys. But even their lines of questioning tended to be shorter and less consistent than other cases, as though the Justices themselves were having trouble getting their heads around it.  

Most particularly, the Justices seemed to have trouble resolving how they should treat a situation in which a private person is bombarded with offensive speech on a matter ostensibly of public concern. The tension between the First Amendment, on the one hand, and society’s interest in protecting its members from IIED, poses a thorny issue. The Court addressed it in Hustler v. Falwell, a case involving a parody ad in Hustler magazine that mocked noted televangelist Jerry Falwell. There the Court ruled against Falwell’s IIED claim. But its rationale was based largely on the fact that Falwell was a “public figure” and, therefore, the First Amendment would ordinarily have precluded a successful defamation claim. The Court didn’t want to allow an IIED claim to permit an “end run” around that preclusion.

But in Snyder v. Phelps, Snyder is a private, not a public, figure. Does that make a difference?  Should it? What if the speech involves a matter of public concern, such as America's policies regarding homosexuality? And is it possible that some speech might be protected by the First Amendment because it’s on a topic of public concern, while other speech is not because it’s just an outrageous, hate-filled rant?

On that last point, the key delineator may just be how each Justice feels about the extent to which some speech’s “outrageousness” might relieve it of First Amendment protection. The Court addressed that point in the Hustler case, pointing out the difficulties that such an approach presents:

“Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. An “outrageousness” standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.

A Justice concerned about the subjectivity inherent in that approach is likely to rule for Phelps. By contrast, less concern about that subjectivity element could lead a Justice to go for Snyder here. The idea there would be that “outrageousness” may properly be discouraged, consistently with the First Amendment, through IIED litigation involving a “private” figure, even if the same may not be true if a “public” figure is involved. Think sliding scales: the more you move from a private figure plaintiff on a matter of purely private concern to a public figure plaintiff on a matter of public concern, the more outrageous the speech must be to entitle the plaintiff to damages.

During the argument, at one point or another each Justice revealed the lens through which he or she is viewing this case. I looked for those moments to help me divine where he or she stands. 

With that in mind, let’s get to some predicting.

I've got it at 5-4, maybe 6-3, in favor of Phelps. 

Here’s how I break it down.

Clearly for Snyder:

There’s no question in my mind that Justices Alito and Roberts will be voting for Snyder. 

Alito is the weakest on the current Court when it comes to the First Amendment. He was the only Justice who voted to uphold a clearly overbroad law in United States v. Stevens; his concern appeared to center on concerns of morality and proper behavior, rather than First Amendment interests. 

Despite some indications that Chief Justice Roberts may not be that bad on First Amendment cases, in the Snyder argument he seemed convinced that the tort of IIED could exist even where a matter of public concern exists. One question he asked really stood out. During Phelps’ argument, Roberts asked:

[I]f you recognize that there can be a tort of emotional distress in [in some cases], isn’t that, the factual question of whether it rises to that level of outrageousness, which is part of the tort for the jury?

This indicates to me that the Chief Justice is not willing to foreclose as a matter of law the possibility that an IIED claim can permissibly be pursued when a private figure plaintiff is suing based on speech on a matter of public concern.

Likely for Snyder

Justice Kennedy is also one who is generally favorable to the First Amendment, but he seemed particularly concerned that allowing groups like the Phelpses and their church to escape liability would open the door to everything short of outright stalking and harassment. He described the Phelps position as advocating the ability to follow any citizen around at any point, and noted that “torts and crimes are committed with words all the time”. Taking these observations together, I feel that he’s wary of giving unfettered rights to inflict insult in all situations.

Clearly for Phelps:

Justices Ginsburg, Kagan and Sotomayor seem firmly in the Phelps camp. 

Ginsburg was “up in the grill” of Snyder’s attorney, Sean Summers, from the get-go (the term is in quotes because, oddly enough, Margie Phelps used that term three times in her oral argument to describe the difference between, on the one hand, protected speech and, on the other, unprotected IIED or “fighting words”). Ginsburg especially seemed unconvinced that protesters who complied with every time, place and manner restriction put upon their speech could later be held liable.

Justice Kagan highlighted the portion of Hustler quoted above. I think she is concerned about subjectivity and I think she’s not willing to impose liability in this case.

Justice Sotomayor also seemed skeptical about the public figure/private figure distinction. She noted at one point:

[U]nder what theory of the First Amendment would we do that? What [Supreme Court decision] would stand for . . . the proposition that public speech or speech on a public matter should be treated differently depending on the recipient of the speech?

Likely for Phelps

Justice Breyer is a little tougher. Despite being tagged as a “liberal” member of the Court, he isn’t rock solid on First Amendment protections. But he’s still pretty good. For me, the key moment occurred when he seemed to be seeking a way to protect this speech by allowing some liability but not where matters of public concern are involved. (You can find this moment at pages 45-46 of the transcript.)

But Justice Scalia was the real revelation to me. As usual, he was an active questioner, launching into both attorneys. But everything crystallized – and I think the case might have tipped to Phelps – in this exchange during Summers’s rebuttal:

MR. SUMMERS:  The court – the district court would have to look at the signs, as the district court did in this case, and determine which one he believed were directed at the family and which ones were not. There was a comment earlier that all the signs were presented. Well, all the signs were presented by the Respondents, not by Mr. Snyder. So we -

JUSTICE SCALIA:  I guess that that kind of a call is always necessary under – under the tort that you’re – that you’re relying upon. The conduct has to be outrageous, right?

MR. SUMMERS:  Correct.

JUSTICE SCALIA:  That always requires that kind of a call, unless the tort is unconstitutional, as applied to all – all harm inflicted by words.  

I’m sensing that Justice Scalia is concerned that Snyder’s position requires consideration of the message’s content in determining whether there is outrageousness. He’s always been concerned with regulating speech based on a particular viewpoint, yet that’s what Mr. Summers seems to be advocating. There’s no way that Scalia will agree with this. If I’m right, he definitely provides what could be the crucial vote for Phelps.  

Unknown

Justice Thomas. The guy didn’t ask a single question (again). Sometimes he loves the First Amendment, but sometimes he comes way out of left field, especially in cases where he can view himself as the protector of a “weak” constituency. (Check out his concurring opinion in the “Bong Hits for Jesus” student speech case in which he went so far as to advocate a return to the 19th Century, when schools basically governed every aspect of their students’ lives.) His paternal streak might say that the government should step in where funerals are involved.

It’s my uncertainty about Thomas’s vote that keeps me from a conclusive prediction as to the vote split – 5-4 or 6-3 – but, if my other big guess (that would be Justice Scalia) pans out, the Swami sees a victory for Phelps and, more particularly, the First Amendment.

As the FCC sees it, the Second Circuit panel should have focused narrowly on the particular facts of the case before it and should have assessed the FCC’s analysis of those facts, nothing more and nothing less. Instead, at least according to the Commission, the panel considered other facts and circumstances involving other cases to reach its conclusion that the overall indecency policy – not merely that policy as applied to the Fox facts – was too vague. But, the Commission argues, there is nothing vague about the notion that “fuck” and “shit” – the words uttered by Cher and Nicole Richie in the Fox broadcasts at issue – are indecent; accordingly, even if there might be some question about whether other material might or might not be deemed “indecent”, the same cannot be said of the particular material before the court.

The Commission gussies up this argument with a discussion of the standards for when a rule is “vague” as a constitutional matter, although that discussion includes, at most, only passing mention of the different “overbreadth” standard often used in First Amendment cases.  Suffice it to say that, whatever the other merits of the Commission’s argument on this point, it presupposes that the language at issue here was, in fact, “indecent”.  But since the Commission had determined in at least two cases more or less contemporaneous with its decision in the Fox case that similar language was not indecent, that assumption is obviously open to question.

The Commission also characterizes the panel’s decision as effectively rejecting the “contextual” approach which the FCC says it has taken to indecency enforcement. Other courts – including the Supremes in the Mother of All Indecency Cases, Pacifica, not to mention at least one other Second Circuit panel – have repeatedly emphasized the need for the Commission to consider “context”. Thus, the Commission argues, the Fox panel’s seeming rejection of that approach should be reviewed and reversed as inconsistent with precedent.

The problem with this aspect of the FCC’s argument is that it’s not entirely clear that the panel rejected the importance of “context” as the FCC claims. Rather, the panel appears to have been critical not of the need to consider “context”, but rather of the FCC’s less than clear – opaque, some might say – approach to how “context” is considered. While the Commission undeniably incants the term “context” in its indecency opinions, that incantation often appears to be little more than the legalistic equivalent of “abracadabra”, a rhetorical flourish with no apparent meaning or substance.

As one example – cited by the Second Circuit panel – the Commission’s contextual analysis enabled it to reach diametrically inconsistent conclusions about the use of the term “bullshitter” in a single instance, each time citing an identical contextual aspect. First, the fact that that word was aired during a news interview made it indecent; but on further thought, the Commission concluded that, because it was aired during a news interview, it wasn’t indecent. In the panel’s words, if the Commission does have any actual indecency standard, it is a standard that “even the FCC cannot articulate or apply consistently.”

The Commission’s final argument is one of apparent exasperation. As it reads the panel decision, the Commission can’t win because any changes to make its contextual analysis more predictable would raise further First Amendment concerns, subjecting the FCC to a Catch-22.

This argument is intriguing because, by making it, the Commission could be seen as conceding that, as a practical matter, indecency is not susceptible to regulation within constitutional limitations. To be sure, the Supreme Court in Pacifica held that the Constitution does permit some regulation of broadcast indecency. But the Supremes then left it to the Commission and the courts to develop, on a case-by-case basis, an appropriate analytical approach in which “context” would be all-important. If, after more than 30 years, the best that the FCC has been able to come up with is the “analysis” invoked in Fox, is it possible that the agency is incapable of regulating indecency – beyond the Carlin monologue at issue in Pacifica – constitutionally? The FCC’s rehearing petition seems to imply that.

The Second Circuit now must decide whether or not to grant rehearing, either by the original panel or en banc. While that may sound simple, it’s not. In particular, the en banc rehearing process in the federal courts ranks up there with papal elections when it comes to procedural quirks. The FCC’s petition will first be circulated to all ten active judges on the Circuit as well as Senior Judge Leval, who sat on the original panel. Any of those 11 can ask that his/her colleagues be polled as to whether or not to consider the petition. If nobody asks for such a polling, the petition is denied. If polling is requested, then the ten active judges – but no senior judges (i.e., Judge Leval doesn’t participate) – are polled. Unless a majority of those polled vote for rehearing, the petition is denied. If a majority of the poll votes to grant rehearing, then the case is re-briefed and re-argued in front of all ten active judges and Senior Judge Leval. There is no guarantee that, even if the case gets that far, the FCC would prevail. A majority of the en banc court could just as easily affirm the panel’s decision.

In other words, the FCC has a long row to hoe.

Meanwhile, a couple of other indecency cases also continue to wend their way through the Courts.

A separate panel of three judges in the Second Circuit is currently considering an appeal of the FCC decision that the broadcast of “naked buttocks” during an episode of NYPD Blue was indecent. After the Fox decision came down in July, the NYPD Blue panel asked the parties for supplemental briefs discussing the impact of Fox on the NYPD Blue case. The FCC’s terse, four page, brief noted the Commission’s belief that the facts of the NYPD Blue broadcast, which involved the scripted display of adult nudity, were very different from those at issue in Fox, which involved the utterance of unscripted “fleeting expletives”. Nevertheless, the Commission conceded that the agency’s decisions in both Fox and NYPD Blue were based on the same “contextual framework” that the Court found unconstitutional in Fox. According to the Commission, the Court’s Fox opinion therefore “appears to suggest” that the policy would be unconstitutional as applied to the NYPD Blue case as well.

As a result, the Commission suggests that the NYPD Blue appeal be put on hold until after resolution of any rehearing motion (the Commission’s NYPD Blue supplemental brief was filed several days before the Fox petition for rehearing went in). With both cases pending in the same court, it seems likely that there will not be any decision in the NYPD Blue case until the Fox rehearing request is disposed of.

And just down the road in Philadelphia, the Third Circuit is also dealing with indecency in CBS’s appeal of the Commission’s Janet Jackson/Super Bowl decision. As we reported in the April issue of our Memo to Clients, the Third Circuit, after hearing oral arguments early this year, asked for supplemental briefs on issues that could allow the court to resolve the case without addressing the constitutional questions regarding the FCC’s indecency policies. While the Third Circuit does not appear to have asked the parties to discuss the possible effect of Fox on the Janet Jackson case, CBS (the appellant) did notify the court of the issuance of Fox decision, thus suggesting that the Second Circuit’s decision was at least relevant to the Third Circuit’s deliberations. The FCC responded with a two-page letter in which it observed that the Third Circuit is not bound to follow Second Circuit decisions and that, anyway, the Second Circuit decision is flawed, and, by the way, the Third Circuit is still considering issues that might allow it to resolve the Janet Jackson case on non-constitutional grounds.

While the sparring before the various circuits is important and could prove decisive, the real question is whether – and if so, when – we’ll ever get to the Main Event. That would be review by the Supreme Court of the constitutionality of the FCC’s indecency enforcement policy as it has developed since Pacifica. Such review could have implications for the FCC’s authority far beyond the somewhat narrow issue of indecency. With the FCC’s election to seek rehearing of Fox at the Second Circuit (rather than ask the Supremes to take a look at the case), that Main Event has been deferred at least a year or two.

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.

Acknowledging that the Supreme Court (in the 1978 Pacifica case) had clearly held that the Constitution permits some regulation of indecency, the Second Circuit observes that the media landscape has changed dramatically in the 30 years since Pacifica. The overwhelming penetration level of cable and satellite services and the development of an “omnipresent” Internet offering all sorts of video programming starkly contrast with the state of affairs in 1978, when broadcast media occupied a “uniquely pervasive presence in the lives of all Americans”. The Circuit also notes the technological controls now available to help parents police content in their own homes.

But even within the confines of Pacifica, the Second Circuit concludes that the FCC’s policy on indecent broadcasts exceeds Constitutional limits because the policy is impermissibly vague. 

Significantly, the Circuit’s ruling targets the FCC’s entire indecency standard – not just the “fleeting expletives” component that was the focus of its 2007 opinion. 

In a tour de force of First Amendment analysis, the Second Circuit takes apart virtually every element of the FCC’s policy and the FCC’s defense of that policy. The Circuit finds that the standard itself is so vague that neither the broadcast industry nor the FCC itself could ever be certain which words or images qualify as “patently offensive” under the existing standard. The Court also observes that the FCC’s presumptive prohibition against the words “shit” and “fuck” can’t survive because the FCC can’t justify why some uses of those words have been prohibited and some not.

For example, how could the FCC permit the broadcast of repeated uses of certain “bad” words by fictional soldiers in Saving Private Ryan, but proscribe the use of those same words by real life musicians in a documentary about the blues? The Commission has on occasion attempted to explain its actions on the basis of such factors as whether the words are “integral” to a particular program or whether the program is a “bona fide news interview”. But in the Circuit’s view, “[t]here is little rhyme or reason to these decisions”.

The Second Circuit describes the enormous First Amendment harms that naturally flow from “the FCC’s indiscernible standards”. The Court notes the inherent risk that vague standards applied on an “ad hoc” basis by government officials allows for the suppression of particular points of view: “it is hard not to speculate that the FCC was simply more comfortable with the themes in ‘Saving Private Ryan,’ a mainstream movie with a familiar cultural milieu, than it was with ‘The Blues,’ which largely profiled an outsider genre of musical experience.” 

The Circuit also recognizes that the FCC’s vague standards force broadcasters to choose between (a) censoring controversial programs and (b) risking massive fines or loss of licenses – the unsurprising result being that many broadcasters choose to self-censor. According to the Court, concern about possible FCC enforcement efforts has prompted stations to edit or refuse to air a wide range of programming, including a documentary on the September 11th World Trade Center attack, literary readings, live news programs, political debates, sitcoms and dramatic programs. 

And with that, the Second Circuit has struck down the FCC’s indecency policy. While the Court acknowledges that, unless and until Pacifica is overruled, the FCC could conceivably create a constitutional policy, the agency’s current policy does not pass Constitutional muster.

The Second Circuit’s decision represents an unambiguous defeat of the FCC’s current indecency policy – but it’s not likely the last word on the subject. The FCC will almost certainly appeal to the Supreme Court. And let’s not forget that the Third Circuit still has the Janet Jackson Super Bowl case pending – raising the possibility of conflicting decisions between the two federal courts. Such a “circuit split” would virtually guarantee a Supreme Court review. 

The prospect of Supreme Court review focusing on the constitutionality of indecency regulation is particularly exciting because, 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. 

In the meantime, broadcasters should not take the decision as a green light to start airing “R” rated movies at mid-day. The Second Circuit struck down the FCC’s policy interpreting the federal statute prohibiting “obscene, indecent or profane language” but not the statute itself. In other words, it’s still technically illegal to broadcast such fare, even if there is no obvious way in which the government could penalize it in the wake of the Second Circuit’s decision. As has always been the case, broadcasters will need to continue to exercise good judgment in their selection of programming. We, as always, will stay tuned.

Cablevision presumably thought that it had an excellent candidate for an “as applied” challenge when WRNN-TV, a station in Kingston, New York – about 100 miles north of New York City – asserted must-carry rights on some Cablevision systems in Long Island. The station’s signal had been entitled to must-carry on those systems in the early 1990s, but Cablevision had convinced the Commission to exclude those systems from that obligation, relying in particular on the reach (or lack thereof) of the station’s Grade B contour. No problem. The station simply moved its transmitter about 50 miles closer to NYC, thereby correcting the Grade B shortfall. 

With its newly shifted Grade B in place, the station asked the Commission to restore its previous must-carry rights on the Long Island systems. The Commission agreed, even though the Media Bureau (which had the first crack at the issue) appeared less than firmly convinced that must-carry was warranted. Still, for both the Bureau and the Commission, the Grade B issue was plainly important.

Since the Turner cases pointed to the goal of preserving local broadcasting as a primary justification for the must-carry rules, the Kingston case seemed to have obvious potential for bursting that bubble. After all, how could carriage of a station on systems more than 100 miles away be said to be doing anything for “local” broadcasting?

Maybe not a lot in Cablevision’s eyes, but at least enough in the Second Circuit’s eyes to uphold the FCC’s decision. 

Actually, the precise quantum of “local” programming and the precise proximity of Kingston to the cable systems in question were not nearly as important to the Second Circuit as was a more obscure legalistic factor: was the market modification at issue here “content neutral”? If a law is “content neutral”, then it has far fewer First Amendment problems than does a law which is “content based”.

In the first Turner decision, the Supreme Court had declined to decide whether a market modification motivated by concerns for localism would be “content neutral” or “content based” – although the Court did hint that it might be the latter, which would have been good for Cablevision in the Second Circuit. Unfortunately for Cablevision, though, the Second Circuit decided that the FCC’s action was content neutral. And that determination in turn made it easy for the Circuit to conclude that there was no First Amendment problem here at all. The Circuit had even fewer problems with Cablevision’s Fifth Amendment claim.  (Cablevision had argued that the market modification and resulting must-carry obligations imposed an unlawful “taking” of Cablevision’s property; the Second Circuit disagreed.)

But as a practical matter, the Second Circuit’s decision, while no doubt disappointing to Cablevision, still provided an important opportunity to get the Supreme Court involved in must-carry again. If you’re looking for a definitive determination that must-carry (including its various components, such as market modifications) is unconstitutional, you will eventually have to get to the Supremes with a good set of facts. The WRNN case seemed to provide just that.

For some reason, though, the Supreme Court was not inclined to take the case. Why? It’s impossible to tell. In denying Cablevision’s petition (technically referred to as a “petition for certiorari” or a “cert petition”), the Court offered no insight, as is its custom in such matters. The Supremes’ order consists of a heading labeled simply “Certiorari Denied”, followed by a nine-page list of a couple hundred entries, each consisting solely of the docket number and case name. The Cablevision case is just one of those terse entries.  (The "cert denieds" begin on page 3 of the linked list; the Cablevision entry is on page 11.)

Importantly, a denial of a cert petition does not constitute a decision on the merits of the arguments advanced in the underlying petition. No meaning – good, bad or indifferent for any of the parties involved – can be read into the denial of Cablevision’s petition. As a result, the Turner cases still represent the Supreme Court’s primary take on must-carry – and the vulnerability of those cases to effective attack remains just as it was before the denial of Cablevision’s cert petition.

When the Second Circuit gave the FCC the big thumbs down in 2007, its opinion was not limited to the relatively narrow non-constitutional law question on which the case was ultimately decided. Rather, the court took the somewhat unorthodox step of offering a detailed analysis of the constitutionality of the FCC’s indecency policy, an analysis which brutally ripped that policy apart. The constitutional analysis was what lawyers refer to as “dicta” – meaning that it technically wasn’t an essential aspect of the court’s holding, and so had no precedential impact. Still, that analysis clearly telegraphed what the Second Circuit thought of the FCC’s policy, constitutionally speaking.

So when the Supremes sent the case back to the Second Circuit (the logical expectation being that the parties would re-address the constitutional issue), the likely outcome of that second visit to the Second Circuit was anticipated to be a foregone conclusion. 

And after the January 13 oral argument, it’s looking like that foregone conclusion is a pretty good bet: many observers expect that the Second Circuit will hold the “fleeting expletives” to be unconstitutional.  (You don't have to trust us on this one -- the oral argument is available on-line for your viewing enjoyment.) 

The issue most troubling to the Second Circuit this time around appeared to be the FCC’s failure to provide a coherent and specific standard as to when something was indecent. One judge characterized the Commission’s indecency decisions since the Supreme Court’s 1978 Pacifica decision as a matter of “bewildering vagueness”. The Second Circuit panel peppered FCC counsel with hypothetical programs they worried might be found indecent under the current regime. For instance, Judge Leval (the source of the “bewildering vagueness” characterization) asked whether a production of Hamlet might be found indecent, and Judge Hall queried whether a news report on Wednesday’s oral arguments would be allowed to include the original uncensored clips from the 2002 and 2003 broadcasts.  

The FCC’s counsel suggested in response that both of those examples would probably not be found held indecent, noting that the Commission “bends over backwards” to protect news programs and editorial decisions. The Court, reflecting apparent skepticism, asked pointedly whether the First Amendment allows it to rely on an agency’s promise to “bend over backwards.”  

Counsel for Fox (and NBC and CBS, who participated as intervenors), as well as the judges, also expressed some concern over the impact of the FCC’s enforcement policy on smaller local broadcasters. The limited resources of small broadcasters, the argument went, might prevent them from implementing a delay system – and, without that safety net, the threat of enhanced penalties could lead them to self-censor their broadcasts, and particularly their news coverage. The court seemed unconvinced (as Justice Scalia seemed to suggest in his opinion) that this concern might be alleviated because folks living in smaller towns were less likely (at least according to Scalia) than “foul-mouthed glitteratae from Hollywood” to use such expletives. 

The Court and FCC counsel also parted ways on whether the Supreme Court’s decision in Pacifica governs the current case. The FCC clung to that decision, claiming that Pacifica’s approval of indecency regulation, combined with the FCC’s (supposed) guidance since then about what is and is not indecent, foreclosed the argument that the current regime was unconstitutionally vague. The Second Circuit strongly disagreed, with Judge Leval at one point telling the FCC to “stop telling us Pacifica ruled on this – it didn’t,” and advising Commission counsel that if he didn’t think the Pacifica decision was extremely narrow, he needed to read it again. Judge Leval explained that whereas Pacifica narrowly approved of the regulation of a specific list of “seven dirty words”, it had not addressed the “great miasma” of things now regulated in the “broadness of the Commission’s menace.” 

When the discussion turned to the supposed purposes of the indecency policy, things didn’t get better for the agency.  The Commission claimed that the main purpose of the policy was to protect children from hearing expletives, to which Judge Hall asked in response how that purpose was served by the “exception” for news programming, questioning whether children could tell the difference in the use of expletives in different types of programming. The Court also queried FCC counsel about why use of the V-Chip was not a better, less-restrictive solution to enable parents to protect their children from broadcast expletives. Judge Leval asked whether, if technology exists that could allow parents to filter programming for their children, parents with the lowest tolerance for questionable language – those who may not let their children outside due to fear they might “hear a nasty” – should be allowed to dictate what other viewers and listeners should hear.  

While the Second Circuit’s decision probably won’t be issued for a couple of months, there is little doubt that it will find the FCC’s current indecency regime, at least as it applies to “fleeting expletives”, unconstitutional.   Of course, that is not likely to be the end of things. The next decision out of the Second Circuit is almost certain to be appealed to the Supreme Court, which will have the opportunity to address the constitutional issues it declined to address the last time.  

Meanwhile, moving along on a parallel track is CBS’s appeal of the FCC’s decision fining it for broadcast of Janet Jackson’s infamous “wardrobe malfunction” in 2004. As we all know, the Third Circuit initially found that fine to be arbitrary and capricious, but was asked by the Supreme Court to rethink that decision in light of the remand of the Second Circuit’s original decision.  Oral arguments in the Third Circuit are scheduled for February 23, which could mean a new Third Circuit decision sometime in the late spring or summer.   It is possible that both Courts’ decisions could be consolidated in a single Supreme Court case, probably in the 2010-2011 term.

The law was intended to snuff out a discrete subculture of animal cruelty videos – dubbed “crush videos” – said to appeal to a certain sexual fetish. Crush videos are visual depictions of women stepping on insects and small animals. (It pains us to describe these, but describe we must.)

Robert Stevens was the first person tried under this law. He was prosecuted for selling three videos containing scenes of pit bulls fighting each other or hunting other animals. Ironically, Stevens is a big fan of pit bulls, and dog fighting was not the main topic of these films. Rather, the dog fighting scenes were included to highlight the fact that the breed’s positive qualities are the same ones which make them strong fighting dogs. Stevens was convicted, drawing a multi-year jail term.

The U.S. Court of Appeals for the Third Circuit tossed the conviction. The government took the case to the Supremes, urging the creation of a new class of unprotected speech. (The last time the Court indulged in such a carve-out was in 1982, when it declared child pornography to be completely outside First Amendment protection.)

The American Society of News Editors, an FHH client, joined several other journalism organizations and media companies in a brief arguing that the statute is unconstitutional. And so it was that I ambled over to One First Street to observe the oral argument before the Court on October 6. I needed to see whether I had any reason to fear for the future news coverage of a vast range of animal-related stories – including stories about local hunting ordinances, Spanish bullfights, or attempts to stop animal cruelty, to cite just a few examples. All such coverage might be threatened by an overzealous prosecutor reacting – or over-reacting – to what he or she believes to be one or another inappropriate depiction in an otherwise evenhanded and well-produced story.

Here’s the good news from the argument: true journalism is not likely to be threatened in this way. 

The Justices set upon the government’s lawyer like a pack of wolves. They appeared considerably more concerned about the breadth of the statute – which could be invoked against a tremendous range of seemingly protected speech – than about the specifics of Stevens’s case. 

The government was not more than three minutes into its presentation when newly-installed Justice Sotomayor went for the throat, asking why Congress felt it needed to pass such a broad law to address such a discrete problem. Government counsel never broke free.

This was followed by a line of questioning from Justices Scalia and Kennedy and Chief Justice Roberts about the government’s assertion that this entire area of speech falls outside of the First Amendment.   Pressed to sum up his justification in one sentence, the government’s lawyer stumbled forward with:

In one sentence, if – if – if Congress sees a compelling interest in regulating the means of production and does not target the underlying content, they can – they can regulate a depiction, so long as it leaves alternative mechanisms for that expression . . .

But the Justices did not appear convinced that this law targets the underlying conduct so much as this speech, noting that animal cruelty would continue to exist even if these videos were eradicated.

Chief Justice Roberts, who is believed to have a strong aversion to “facial” challenges (i.e., challenges to the overall law as a whole, irrespective of the particular facts of the particular case before the Court), hinted that he might support such a challenge in this case. He seemed concerned that this law is particularly overbroad, dependent on a cobbled-in exception to save it.  Justice Scalia and others were similarly unimpressed, questioning whether the law would apply only to “educational” depictions of bullfighting (if they can somehow be identified and defined) or to other instances in which animals might be “legally” harmed. 

The hypotheticals kept coming. Justice Alito questioned how the law might deal with a re-creation of Roman gladiator fights: would it be saved if the participants dressed in traditional gladiator garb to make it “historical” in nature?   It seemed clear at this point that a majority of the Court was not buying the claim that the law is narrowly drawn to focus in on the laudable, if not compelling, interest of animal cruelty. 

What we didn’t see coming was that the gladiator hypothetical wouldn’t be the most, um, unusual hypothetical of the day . . .

No, Patricia Millet, Stevens’s lawyer, was on the receiving end of that one. She first had to parry Justice Alito, who asked whether it was even permissible for Congress to try to address the problem of “crush videos” with such a law. Barely conceding the point, she argued that such a law would have to: (1) satisfy the rigorous “strict scrutiny” standard applicable to content-based regulation of speech; or (2) be equivalent to the Court’s standard for obscene speech; or (3) truly be addressed and tailored to the underlying acts, not the speech about or depicting those acts. Asked whether the Court could interpret the statute consistently with those standards, she replied that that would require statutory “alchemy” more than statutory “interpretation” (which brought a noticeable chuckle from Justice Scalia). 

But back to that strangest of hypotheticals. In exploring the arguable “overbreadth” of the statute – that is, by looking at possible scenarios in which the statute might be used to prosecute plainly protected speech well beyond the facts of Stevens’s videos – the Court asked whether the law could properly reach a series of hypothetical situations. It was one of these hypotheticals that took us into truly weird territory, as Justice Alito asked how the statute might be applied to a “human sacrifice channel” that offered live pay-per-view coverage of legal human sacrifice that: (a) might be occurring somewhere in the world; (b) is illegal in the United States; but (c) nevertheless enjoys a commercial television market.  (Ms. Millett conceded that an evenhanded application of a narrowly drawn statute was paramount.)

After an hour of questions, answers, and hypotheticals, one thing seemed very clear: the Court was more concerned about where to draw the line in terms of substantial overbreadth than it was with the particulars of this case. It barely discussed the facts of Stevens’s case – or even the law’s application to traditional forms of speech. The word “journalistic” appears only five times in 73 pages of transcript. While we understand the First Amendment is primarily tested on the fringes, the Court spent so much time outside the fringe and into the fanciful that I think we’ll be hard-pressed to find five members of the Court who believe this law can ever be constitutionally applied to real-world speech.

In fact, I’m saying that the Court declares the law unconstitutional by a vote of at least 7-2.

For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. §441b?

For readers unaccustomed to the patois of high-falutin’ constitutional litigators, a “facial” challenge is the classic blunt instrument, a broadside attack in which an entire statutory scheme is targeted. The alternative to a “facial” attack is an “as applied” attack, in which the party challenges not the entire statute, but rather just that portion of the statute that has been applied to the challenger. To analogize to the surgical arena, an “as applied” attack is akin to delicate laparoscopic surgery involving cute little incisions leaving minimal scars; a “facial” challenge is akin to Civil War battlefield amputations (think the hospital scene in Gone with the Wind).

Not surprisingly, courts tend to prefer the “as applied” approach – so it’s a big deal when the Supreme Court itself announces that it’s prepared to consider arguments about the facial validity of a statute.

When we discussed the Court's most recent pronouncement on BCRA (Federal Election Commission v. Wisconsin Right to Life, Inc.), we took particular note that  Justice Scalia, joined by Justices Thomas and Kennedy, would have declared BCRA unconstitutional, and that Justice Alito was moving in that direction.  With its order in the Citizens United, the Court could be indicating that another Justice or two may be ready to toss all, or at least a major chunk, of BCRA. (Note that the oral argument has been set for September 9, which in itself is highly unusual. Ordinarily, the Court recesses from the end of June until the first Monday in October.)

Betamax 2009

The Court's next big statement consisting of few words was the simple denial of certiorari in a case (Cable News Network v. CSC Holdings, No. 08-448) brought by several television networks and Hollywood studios against Cablevision. The nets and studios claimed that Cablevision's remote storage DVR (RS-DVR) system violates their copyrights by making an unauthorized copy at the cable system’s headend. Of course, the alternative to an RS-DVR system entails making the recordings on about a gazillion separate set-top DVR boxes located in the cable subscribers’ homes. The RS-DVR approach merely shifts the locus of the mechanical recording to a more efficient, centrally-located facility, while providing the end-user precisely the same end-result – the ability to view video content of the viewer’s choosing at a time and place convenient to the viewer.

The networks and studios initially won their case in United States District Court, convincing that court that Cablevision's system constituted a copyright violation.  Cablevision countered that there was no effective difference between (a) this cheaper method of storing content and (b) the use of multiple set-top DVR units. Since the latter approach was directly analogous to reliance on separate VCRs, and since individualized, private-use VCR recording had been held not to constitute copyright infringement, Cablevision prevailed on appeal to the U.S. Court of Appeals for the Second Circuit.  The nets and studios asked the Supremes to review the Second Circuit’s decision, and the Supremes have now declined the opportunity with the standard, brutally unilluminating, nine-sentence order (“The petition for a writ of certiorari is denied.”). That leaves the Second Circuit decision in place and Cablevision’s RS-DVR system alive and kicking.

This becomes the latest in a long line of cases, dating back to the Court's 1984 decision in Sony Corp. of America v. Universal City Studios, Inc. (the "Betamax" case), that allow for "time shifting" of television programs by a viewer for his or her later viewing in his or her own home.  It is expected to increase the use of cable set-top boxes with DVRs, which will, in turn, impact the advertising revenues collected by television networks.

Broadcasting and Cable magazine talks to veteran attorneys who have argued before or went to school with Judge Sotomayor and come to some conclusions as to how she'll affect media interests. 

The Freedom Forum tackles multiple topics within the First Amendment:

• David Hudson writes about Sotomayor's First Amendment views.
• Charles Haynes takes on religious freedom.
• And here's veteran Court watcher and First Amendment scholar Ron Collins' take.

The Reporters Committee for Freedom of the Press does -- as it has for all recent Supreme Court nominess -- an extensive review of past opinions affecting the First Amendment and Freedom of Information Act here.  

Popsci.com is just happy that we have a  "tech-savvy" nominee

Wired agrees.

While the National Tech Journal notes that her private practice was steeped in intellectual property issues.

And, just for fun, Tony Mauro of American Lawyer Media opines  in the USA Today on how Justice Souter's department may finally result in camera coverage of oral argument. 

Majority Opinion (Justice Scalia, joined by Chief Justice Roberts and Justices Alito, Thomas and Kennedy)

Justice Scalia wrote the Court’s majority opinion. He commenced by tracing the history of the Commission’s application of the indecency statute (18 U.S.C. §1464) from its start in the 1975 Pacifica decision (addressing a broadcast of George Carlin’s famous “Filthy Words” monologue, a ruling that eventually ended up in the 1978 Supreme Court decision in F.C.C. v. Pacifica Foundation).  

 (We won’t go into all that legal history here. If you’re interested, contact our colleague Joe Di Scipio, who has put together a way cool PowerPoint presentation tracing the recent development of indecency regulation.)

Scalia’s majority opinion held that the APA does not require an agency to engage in a “heightened review” of its prior policy decisions before reversing course on those policies. Instead, according to Scalia, an agency must only (1) acknowledge that it is changing its policies and (2) show good reasons for the change. (In Scalia’s view, the Second Circuit had improperly required such “heightened review”.)  Justice Scalia also flatly smacked down any notion that heightened review is required when the change affects a constitutional right, as suggested by Fox’s counsel during oral argument.

Applying this new, minimal standard of accountability, Scalia found that the Commission had not acted in an arbitrary or capricious manner.  The Commission’s forthright acknowledgment that it was “break[ing] new ground”, combined with an equally forthright disavowal of earlier, contrary, decisions as “no longer good law”, was sufficient, especially where the FCC hadn’t imposed an actual penalty. He further found that the Commission’s change – at least on a theory that allowing fleeting utterances would lead to more fleeting utterances – was perfectly rational because technology to bleep out these words is widely available. 

The final section of the Scalia opinion garnered the support of only three other Justices, as Justice Kennedy did not join this section. In that section Scalia criticized the opinions of his dissenting colleagues.  He disagreed with Justice Breyer’s dissenting sentiment that the Court must engage in increased oversight of an independent agency because these agencies are “less political”.  According to Scalia, an independent agency endures a different kind of oversight, with Congressional oversight replacing Presidential oversight.  He pointed out that the FCC’s change in its indecency enforcement was directly traceable to Congressional pressure.

Scalia also criticized Breyer’s fear that small broadcasters will be unduly burdened by this decision because they do not have the means to purchase and employ technology to prevent the broadcast of fleeting expletives.  The Trenton-born, Queens-raised, primarily metropolis-living Scalia placed his faith in the goodness of small town folk who will know how to check their tongues during live television broadcasts.  As Scalia sees it, absent the threat of the utterance of a fleeting expletive in locally-produced programming, small market broadcasters really face no enforcement dangers at all, because the Commission has repeatedly said it will not act on utterances emanating from live breaking news events in national programming. 

And, finally, the constitutionality of the FCC’s indecency policy?  Scalia simply didn’t go there, other than to say that the issue could (and likely would) be raised on remand to the Second Circuit.

Concurring Opinion (Justice Thomas)

Justice Thomas concurred as only Thomas could:  by raising an issue that nobody really wanted to discuss, questioning the continuing validity of the “scarcity doctrine” (the  underlying rationale for the FCC’s regulation of broadcast content).  

He found this continued restriction on the First Amendment right of broadcasters troubling for two reasons: (1) the Court adopted in 1969 in Red Lion Broadcasting Co. v. F.C.C. and reaffirmed in Pacifica a rule that had no basis in the original text of the constitutional (because, of course, little boxes electronically providing music, news and other information were not known to the Founding Fathers); and (2) even if one assumes that the scarcity of physical spectrum does justify some regulation of broadcasters’ content, the availability of multiple electronic information sources – digital television/cable television/satellite television/the Internet/iPod/and God-knows-what – means there’s simply no scarcity anymore.  Thomas’s opinion invited reconsideration of Red Lion and Pacifica (and, one might argue, previewed what would be a key fifth vote in favor of striking down regulation of indecent content as violating of the First Amendment). 

 Concurring Opinion (Justice Kennedy)

Justice Kennedy joined all but one part of the majority opinion. He expressed some sympathy for Breyer’s view that heightened review of an agency’s decision is necessary when a longstanding rule or policy is being changed.  In Kennedy’s words, the necessary question is “whether an agency’s reasons for the change, when viewed in light of the data available to it, and when informed by the experience and expertise of the agency, suffice to demonstrate that the new policy rests on principles that are rational, neutral and in accord with the agency's proper understanding of its authority”.  Where there is an established body of evidence supporting an agency’s policy, any change in that policy must be overwhelmingly supported by new evidence which shows why circumstances have changed.

Kennedy found that FCC met this standard (whether or not that standard was “heightened”).  While the FCC’s reasons for the change in its fleeting expletive policy were not, in Kennedy’s view, so “precise, detailed, or elaborate as to be a model for agency explanation”, they nonetheless “were the sort of reasons an agency may consider and act upon.”

What’s particularly interesting is that, while Kennedy may have won the battle for the FCC on this particular application of the indecency rules, he may end up winning the war against future agency actions of this ilk.  If one adds Justice Kennedy’s vote to the four dissenting votes, we might see the Court apply the higher standard in the next case of agency deviation from a prior policy position. 

Dissenting Opinion (Justice Stevens)

In addition to joining Breyer’s dissent, Justice Stevens wrote separately to emphasize two points.  First, he disagreed with the majority’s assessment that the FCC need not fully explain a departure from its prior interpretation of the indecency rules.  Second, the Pacifica decision was not as broad and sweeping as the majority thinks it was (Stevens, of anyone on the current Court, would be the one to know: he is not only the sole current member who was on the Court in 1978, but he wrote the majority opinion in Pacifica).  

His primary quarrel with Scalia regarded the extent of the Court’s holding in Pacifica.  He interpreted Scalia as believing that a proper interpretation of the Pacifica decision would treat as “indecent” any expletive that has a sexual or excretory origin.  Justice Stevens reemphasized his view of the very limited nature of Pacifica: that it related only to Carlin’s use of the words as broadcast in the middle of the day when children were likely to be in the radio listening audience.  That limited holding was supposed to be the outer limit of the FCC’s indecency rules.  And it was... for nearly 30 years.  Justice Stevens could not square the Pacifica holding and FCC’s subsequent interpretation with this Court’s approval of an FCC action that removes any distinction between the use of these words in a sexual or excretory fashion and the use of the same words in a non-sexual, non-excretory, clearly-just-a-profanity-for-the-sake-of-profanity fashion.

Dissenting Opinion (Justice Ginsburg)

Also joining Breyer’s dissent, Justice Ginsburg wrote to chastise the Court for avoiding the First Amendment issues presented in this case. Her short, but in our minds, sweet, opinion, questioned whether punishment for these fleeting expletives would be consistent with the First Amendment.  Again, viewing this in conjunction with the other dissenters and Justice Thomas’s concurring opinion, one might wonder whether the indecency regulations will survive for the long haul.  

Dissenting Opinion (Justice Breyer, joined by Justices Stevens, Souter and Ginsburg)

Justice Breyer had problems with both the legal standard outlined by the majority and the way in which the FCC justified its departure from the prior indecency decisions.

His core belief was that, when changing a policy position, an independent agency should be held to a higher standard of review than when it is instituting a new policy or rule. Departing from an established rule requires proper explanation of both the rationale for the new rule and the reasons for departing from the established rule.  Simply put: an agency must be able to answer the question “Why did you change?” 

The FCC did not – and could not – answer this question.  When it abandoned its previous, largely “hands-off-fleeting-expletives” policy, it changed a 25-year-old policy with little to no explanation for its actions. What little explanation the FCC offered was lacking in basis.  Its entire explanation consisted of two sentences amounting to nothing more in effect than “we think our new approach is consistent with Pacifica”. 

As discussed above, Breyer feared the impact of the change on small broadcasters, who may not be able to afford and employ the technology cited by the majority as a relatively easy means of avoiding liability for the broadcast of fleeting expletives. The adverse impact is especially disturbing given the special importance of local broadcasting and its already-existing financial troubles.  Breyer supported these claims with a detailed, facts-and-figures type inquiry he would demand of the FCC or any other independent agency.

Finally, the dissent attacked the majority’s constitutional avoidance argument, saying that the doctrine has no place where an agency engages in a constitutionally suspect application of its rules.  He would remand the case to the FCC and require the agency to explain its actions in light of the First Amendment concerns that are clearly applicable.

So there you have it:  six opinions and 72 pages, in which the Court upheld the FCC's radical change in policy with regard to the broadcast of "fleeting expletives", but seemed to signal the possibility of greater oversight of future agency reversals of policy positions - and almost invited broadcasters to challenge the indecency rules and other content -based regulations on First Amendment grounds.

(Justices' photos from the Collection of the Supreme Court of the United States)

Indecency

As most everybody probably knows, this case involved the FCC’s determination that Fox had broadcast indecency during two awards shows. In one, Cher commented, “I’ve also had critics for the last 40 years saying that I was on my way out every year.  Right.  So  fuck ‘em”. In the other, Nicole Richie said, “Have you ever tried to get cow shit out of a Prada purse?  It’s not so fucking simple.”

The Commission had historically declined to go after the occasional, single use of such words as “fuck” and “shit”, uses which are referred to familiarly as “fleeting expletives”. Here, however, the Commission changed course and held that Fox’s broadcast of fleeting expletives was a violation. Fox appealed the ruling, raising two basic arguments. First, according to Fox, the FCC’s about-face on fleeting expletives was arbitrary and capricious, in violation of the Administrative Procedure Act (APA) – that is, the FCC failed to explain adequately why it was abandoning its previous policy. Second, Fox argued that even if the action survived the APA attack, the FCC’s new policy violates the First Amendment.

The Second Circuit in New York agreed with both of Fox’s arguments. But, because courts generally shy away from making constitutional determinations if they don’t have to – for the same reasons that you don’t undergo brain surgery if your problem can be effectively treated with less invasive and dangerous methods – the Second Circuit’s actual ruling was limited to the APA ground. That didn’t stop the Second Circuit, however, from including an extended discussion – referred to as “dicta” – in which it made clear that the Second Circuit was very skeptical of the constitutionality of the FCC’s new approach.

The Second Circuit decision effectively stopped the Commission’s indecency juggernaut in its tracks. The FCC asked the Supremes to review the case, and the Supremes agreed.

In his majority opinion, Justice Scalia held that, contrary to the Second Circuit’s view, the FCC did explain its change in policies, at least enough to satisfy the APA. Writing for himself, Chief Justice Roberts, and Justices Thomas, Kennedy and Alito, Scalia concluded that the Commission had recognized that it was shifting course and it had articulated sufficient reasons why it believed the new course to better. So as a matter of administrative law, the new fleeting expletives policy was properly adopted. (Of course, the other members of the Court – Justices Stevens, Ginsburg, Souter and Breyer – did not agree, but without that crucial fifth vote, all they could do was issue dissenting opinions.) Since the Second Circuit’s decision was limited to the APA/administrative law issue, the FCC won and the indecency policy lives on.

At least for a while.

Consistently with the doctrine of avoiding constitutional questions if at all possible, neither Scalia nor any other Justice (there were a total of four additional concurring and/or dissenting opinions) addressed the constitutionality of the new fleeting expletives policy. While the Second Circuit opinion had included the dicta discussion on that point, the Supreme Court recognized that dicta has no actual legal effect, so the Supreme Court could simply ignore it.

As a result, the case now goes back to the Second Circuit for “further proceedings consistent with [the Supreme Court’s] opinion.”

But, thanks to the dicta portion of the Second Circuit’s decision, we all have a pretty good idea of what is likely to happen when the case toddles on back there: presumably, Fox will re-present its constitutional arguments and, if the Second Circuit still sees those arguments the way its saw them in 2008, we should be seeing a new Second Circuit decision declaring the FCC’s indecency policy to be unconstitutional. If and when that happens, we can expect the Commission to seek review, again, by the Supreme Court.

So the Supremes’ decision in Fox does little to alter the landscape in the short term. While the Commission may feel fortified by Scalia’s decision – and Acting Chairman Copps wasted no time in crowing about it – the fact is that the fleeting expletives policy is still not out of the woods by a long shot. Getting rid of the APA arguments merely clears the path toward some final resolution of the constitutional issues, possibly in the next couple of years.

If and when that happens, it’s reasonable to assume that the Second Circuit will stick to the position (outlined in its earlier dicta) that the policy can’t survive First Amendment analysis. Such a ruling could bring the case back to the Supremes. Interestingly, in his concurring opinion, Thomas expresses the view that the “scarcity rationale” – i.e., the traditional justification for governmental regulation of broadcast content – may no longer have any validity (if it ever had any validity at all – according to Thomas, the primary cases in which that rationale was articulated by the Court “were unconvincing when they were issued.”). Additionally, while Kennedy technically joined Scalia’s opinion, his own separate opinion oddly seems to lean more toward Breyer’s dissent than Scalia’s majority. 

As a result, there is at least some reason to speculate that the Court’s decision on the APA ground may not necessarily provide any reliable indication of how the Court would rule on the far more important constitutional ground.

At this point, though, we are off in the land of speculation. Lots of things could happen between now and whenever the constitutional argument might make it back to the Supremes. Still, while the reversal of the Second Circuit’s APA decision may be disappointing to many, there are enough glimmers of hope on the constitutional side that the immediate impact of the Supreme Court’s decision on indecency regulation can be shrugged off as very limited.

A major APA shift

The same cannot be said of the impact of Scalia’s APA analysis on FCC regulatory activities as a whole. And that’s the real story in the Supreme Court’s decision.

As noted above, the APA requires that the actions of federal agencies, including the FCC, not be arbitrary or capricious. More than 25 years ago, the Supreme Court interpreted that requirement, holding that an agency must “examine the relevant data and articulate a satisfactory explanation” for actions it takes. Since then, numerous courts of appeals have read that standard, in the context of changes in agency policy, to require that the agency also explain why the reasons underlying its original policy are no longer dispositive and why the new policy is preferable to the policy being abandoned. That gloss on the Supreme Court’s 1983 decision served to assure a measure of stability in agency policies, since the agency had to be able to explain why a new policy was preferable.

But Scalia’s majority opinion in Fox throws that gloss out the window.  The Second Circuit’s rationale for the APA portion of its decision was based to a significant degree on the fact that the Commission failed to explain why its old fleeting expletives policy was no longer valid. The Second Circuit’s approach was consistent with case law developed over more than a quarter of a century.  Characterizing that approach (and the lower courts’ consistent interpretation of the APA on which it was based) as imposing a “heightened standard” or a “more searching review”, Scalia declares that that interpretation is, well, just wrong. According to Scalia, when an agency decides to change an established policy,

it suffices that the new policy is permissible under the [agency’s governing] statute, that there are good reasons for it, and that the agency believes it to be better. [emphasis in original]

In other words, the Commission can change its policies without necessarily explaining why the reasons which underlay its to-be-abandoned policy are no longer operative or persuasive. Instead, the Commission can say simply “we prefer the new policy”, and that may satisfy the APA.

This is a huge and ominous change which accords the Commission potentially vast latitude to engage in largely unexplained reversals of policy. This new take on the APA’s requirements opens the door for regulatory zigging and zagging of all sorts in all areas of FCC activity. And this new take is, as of the release of the Supreme Court’s Fox opinion, the law of the land. No need to await any decisions on remand or further review by any court – Scalia’s pronouncement is now the way it is.

So the Fox decision does have sweeping effect, but not in the indecency area where we all might have expected it. The indecency aspect of the ruling doesn’t effect any fundamental changes. But on the APA side, its repercussions could be profound and long-lasting for everyone subject to FCC regulation.

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

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

Kevin Goldberg reports:

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

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

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

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

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

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

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

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

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

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

Harry Cole reports:

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

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

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

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

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

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

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

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

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