Why does a Supreme Court case with the potential to be a major ruling result in a narrow, much less significant decision?

Consider the case of Federal Communications Commission v. Fox Television Stations, which was widely expected to be a major test of First Amendment limits on federal regulation of television and radio broadcast content.  But instead, the Court’s ruling turned out to be a narrow one that resolved little and left major questions for another day.

So what happened? This column does not offer any inside knowledge of why the Court did not reach the major issue it faced; rather, it attempts to explore what may be possible explanations, given the way the Court works.

The case seemed to be teed up perfectly for a major free speech ruling. The issue was whether, consistent with the First Amendment, the FCC may punish the broadcast of fleeting indecency – either brief nudity or expletives uttered on live television.

The focus of the appeal was on several separate incidents. The FCC took action against Fox for expletives uttered by Cher on a 2002 live broadcast of the Billboard Music Awards and by Nicole Richie on the 2003 Billboard Music Awards. Both broadcasts were found to violate the FCC indecency policy, although no fines were imposed. The FCC also took action against ABC for a 2003 episode of the television show NYPD Blue that showed a woman’s naked buttocks. The FCC fined forty-five ABC affiliated stations $27,500 each for airing the episode. The Commission based its actions on its own indecency policy, which it changed in 2004 to provide that the rule against indecency would no longer be limited to prolonged descriptions of sexual and excretory acts; instead, it would also be enforced against brief, one-time incidents.

The march to the Supreme Court followed a long and somewhat tortured path, with appeals to the Second Circuit, a remand to the FCC, another round of appeals to the Second Circuit, and an initial trip to the Supreme Court – resulting in a 2009 ruling that the FCC had properly justified its new policy under federal law governing rulemaking by agencies like the FCC. Back again to the Second Circuit the case went, this time for a ruling that the FCC’s indecency policy was unconstitutional because it was too vague to satisfy the due process guarantee of the Fifth Amendment and interfered with free speech in violation of the First Amendment. And then the FCC took the case to the Supreme Court for the most recent, although possibly not the last, incarnation.

So after this big build-up, what caused the Court to issue a narrow ruling that neither Fox nor ABC had sufficient notice that the FCC indecency policy would be applied to brief expletives or nudity? Why did the Court decline to rule on the free speech implications of the FCC policy?

It is possible, of course, that there is no story behind the Court’s decision – that is, that the Justices simply opted to decide the case on the narrowest possible grounds. It is a recognized judicial principle that courts should generally try to decide cases on the narrowest ground and avoid reaching broad constitutional pronouncements unless really necessary. The Court’s ruling that Fox and ABC did not have fair notice of what the law was is a constitutional ruling, finding that the FCC’s actions did not provide the networks with basic due process required by the Fifth Amendment. But this is a much narrower constitutional ruling than a decision evaluating the First Amendment implications of the entire indecency policy for the whole broadcast industry.

But numerous other scenarios are possible and perhaps more likely, drawing on the way the Court handles the process of deciding cases that have been argued.

The FCC case was argued on January 10 and decided on June 21.  It seems highly unlikely that it took the Court five months to produce the relatively modest eighteen-page opinion by Justice Anthony Kennedy, on behalf of himself and six other Justices, or the one-paragraph opinion by Justice Ruth Bader Ginsburg, who concurred only in the judgment.  (Justice Sonia Sotomayor was recused from the case, no doubt because she was involved in the case as a judge on the Second Circuit.)

Why unlikely? Under the Court’s procedures, the Justices would have discussed the case in their private conference and voted on the outcome by Friday, January 13, at the latest.  The vote would have been followed in short order by an assignment of one of the Justices to serve as the author of the Court’s opinion; that assignment would be made by either the Chief Justice or – if he were in the dissent – the senior Justice in the majority.

In the normal course of the Court’s operations, a draft opinion would almost certainly have been completed by mid-March. If that opinion resembled the final version that the Court released last month, and there were no dissenting opinions, it would likely have been ready for release many weeks earlier than June 21.

Given the Court’s usual secrecy surrounding its deliberations and in the absence of the apparent leaks that have marked the aftermath of the healthcare ruling, we can only explore the possibilities of what might have transpired. First, it is possible that after the Justices attempted to grapple with the complexity of defining indecency in a constitutionally acceptable manner, they simply ran out of time or were focused on the health care cases.

A second possibility is that the Justices spent some weeks trying to achieve agreement on the application of free speech standards to the FCC’s indecency rules but were simply unable to come up with a workable approach. It is not an easy task. The problem of definitions has long plagued efforts to regulate sexually explicit material, from legal battles over obscenity in the 1960s and 1970s to struggles within the FCC over how to enforce indecency standards in recent decades. Given how much time elapsed between the argument and the decision, it is possible that another opinion was drafted for the Court but failed to command sufficient consensus.

A third possibility, a variation on the second explanation, is that there were too many different approaches among the Justices. Justice Ginsburg has made it very clear that she wants to review the entire FCC indecency policy under free speech principles. Justice Clarence Thomas has suggested that he would reconsider whether there is any basis under the First Amendment for FCC regulation of broadcast content. There are undoubtedly some Justices who think the indecency policy, and broadcast regulation more broadly, pose no First Amendment problems.

A fourth possibility is that with only eight Justices participating in the case, the Court might have found itself deadlocked four to four over First Amendment principles. A tie vote would lead to a summary affirmance of the lower court, but the Justices would likely not have wanted to summarily affirm the Second Circuit holding that the indecency policy violates the First Amendment.

These are all possible explanations for the Court’s failure to reach the important First Amendment issues. One thing on which the Justices could rely, for certain, is that the legal battles over the FCC’s indecency policy will not end. One FCC commissioner, in response to the Court’s ruling, said the Commission faces a backlog of 1.5 million complaints about indecency involving nearly ten thousand television broadcasts. Whether the FCC adheres to the current policy or makes changes in enforcement, the Court is likely to have more opportunities in the years ahead to consider the free speech implications of FCC indecency policy.

Posted in Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): One that got away, SCOTUSblog (Jul. 12, 2012, 3:23 PM), http://www.scotusblog.com/2012/07/scotus-for-law-students-sponsored-by-bloomberg-law-one-that-got-away/