FCC asks Supreme Court to review Second Circuit indecency decisions in Fox and NYPD Blue.

Like a hard-core poker player on a losing streak, the Commission isn’t going to let a recent string of defeats on the indecency front discourage it. Au contraire, the FCC’s going double-or-nothing, putting all its chips in and looking to Lady Luck for a change in fortune: it has asked the Supreme Court to review both of the Second Circuit’s 2010-2011 indecency decisions. But there’s no guarantee that the Commission will even be dealt a hand in the next round . . . and if it does get dealt in, the odds may be against the FCC in what could turn out to be a very high stakes game.

The two cases involve (1) Fox’s broadcasts of the 2002 and 2003 Billboard Music Awards and (2) an episode of ABC’s NYPD Blue. We’ll spare you the historical details here – you can read about them in our previous posts (like here and here). The U.S. Court of Appeals concluded in the Fox case that the FCC’s indecency policy, as it has evolved in recent years, is unconstitutionally vague and fails to give broadcasters a clear enough idea of precisely what types of material may or may not be deemed “indecent”. In the NYPD Blue case the same court held that its Fox ruling applied equally not only to language (which had been at issue in Fox) but also to visual images.

The one-two punch delivered by the Second Circuit effectively scuttled the FCC’s efforts to enforce its quasi-ban on indecency.

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 LionRed 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.