Supremes toss FCC’s Fox, NYPD Blue actions for lack of notice.

It looks like we may all be going on another spin around the Indecency Merry-Go-Round. The Supreme Court has vacated the Second Circuit’s most recent decisions in the Fox and NYPD Blue cases and shipped them back down for further proceedings. The Supremes’ decision has just been released, so we have not yet had time to get it into the hands of the Swami for full-tilt swamification. Look for a post on that shortly.

In the meantime, a very quick read of the Court’s decision – which was 8-0, with Justice Ginsberg issuing an interesting concurring opinion and Justice Sotomayor sitting this one out – indicates that our earlier prognostication got the correct bottom line (even if we didn’t get the justice count quite right). While the decision to vacate the lower court’s rulings, which favored the broadcasters, would ordinarily be seen as a victory for the FCC, that is not the situation here. Instead, the Supremes have determined that neither Fox nor ABC had adequate notice of exactly what the FCC’s indecency policy prohibited. Accordingly, the Commission’s determinations penalizing Fox and ABC for their broadcasts have now been set aside.

But, as we predicted, the Court stopped short of even thinking about reconsidering its 1978 Pacifica decision.

In fact, it assiduously avoided even coming close to PacificaPacifica, 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.