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

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.