Argument Preview: FCC v. Fox TV Stations
on Nov 1, 2008 at 6:31 pm
At 10 a.m. Tuesday, the Supreme Court will hear one hour of argument in Federal Communications Commission v. Fox Television Stations, et al. (07-582). Lyle has prepared the following preview, which also appears at this link on ScotusWiki. The Wiki entry also includes the documents filed in the case. Solicitor General Gregory G. Garre will argue for the FCC, and Carter G. Phillips for Fox TV and the other broadcasters involved. Chief Justice John G. Roberts, Jr., has denied a request to release promptly the audiotape of the argument. A written transcript will be available within about an hour after the argument concludes, and will be posted on this blog as soon as it is available.
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Nearly 30 years ago, in July 1978, the Supreme Court ruled for the first time that the Constitution allowed the government to prohibit the broadcast, on radio and TV, of vulgar words that were indecent, though not obscene. That was the ruling in FCC v. Pacifica Foundation. Justice John Paul Stevens, the author of the main opinion in Pacifica, is the only member of the Court still serving. The Commission is back again, seeking to enforce a more restrictive policy on broadcasts of indecency. In the case of FCC v. Fox Television Stations, et al. (07-582), the Court will be reviewing FCC’s claim that it has the power to punish a station for even the single use of a vulgar word – specifically, two four-letter words, one a sexual epithet, the other a bit of barnyard or toilet slang.
Background
Since the Radio Act of 1927 was passed, federal law has provided that “No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication” – a provision since extended to television. The FCC, however, did not begin to spell out a policy on what the word “indecent” meant until 1975. It did so then in response to a complaint from a father who had heard on a New York radio station owned by Pacifica a monologue by satirist George Carlin, titled “Filthy Words.” The man heard the expletive-filled broadcast at 2 in the afternoon, while driving with his young son in the car. The Commission did not then punish Pacifica, but said it was putting the complaint in its files and might take action if it got more complaints about indecent broadcasts. Pacifica took the FCC to court, and the D.C. Circuit Court struck down the Commission’s “declaratory order,” treating it as a kind of censorship forbidden either by the Radio Act or by the Constitution’s First Amendment. After the Supreme Court ruled in favor of the FCC and against Pacifica, in a decision that notably remarked that of all forms of communication, broadcasting had “the most limited First Amendment protection.” For years thereafter, the Commission followed a policy of acting against broadcasters only if a broadcaster used indecent language in a sustained or repeated way. Congress specified that the FCC could only apply the indecency ban to radio and TV broadcasts aired between 6 a.m. and 10 p.m. – times when children might well be listening or watching.
The post-Pacifica policy stood until March 2004, when the agency changed its mind. Thereafter, it said, even a single use of “the F-Word” on the air would be treated as illegal. The FCC also made it clear that, among other single banned words, a four-letter word meaning excrement and some variations of the word “bull–” are also banned. It makes exceptions, such as for news broadcasts or other situations in which the context suggests the words are not being used to convey vulgar meaning. The agency changed its approach after getting complaints about two broadcasts on Fox television of the Billboard Music Awards – the show in 2002 when singer-actress Cher used “the F-Word,” and the show in 2003 when actress Nicole Richie used variations of that word and used the four-letter excrement word – and a broadcast on NBC-TV in 2003 of the Golden Globe Awards, when rock singer Bono used a variation of “the F-Word.” It was actually the Bono comment that led the FCC, in March of 2004, to announce its policy shift so that it would no longer tolerate single uses of vulgar words on the air. It did not punish Bono, however, because it said it had previously allowed “isolated or fleeting’ used of expletives during broadcasts. But, in reaction to the complaints about Cher and Nicole Richie and the Billboard programs, the FCC in February 2006 issued what it called an “omnibus order”, stressing the ban on single usage violations. Again, though, it imposed no sanctions, because it concluded that broadcast licensees lacked adequate notice of its new policy before the broadcasts. Fox TV, joined by other broadcasters, complained to the Second Circuit Court about the new policy, but that Court did not rule initially, because the FCC recalled the case to respond more explicitly to the broadcasters’ complaints. It modified its order somewhat, but reaffirmed the ban on single expletives. The case then returned to the Second Circuit, which struck down the new policy as arbitrary and capricious under federal communications law. It did not rule, however, on the broadcasters’ constitutional challenges under the First Amendment. But it did comment that it doubted that the FCC policy could survive scrutiny under that Amendment. It said, though, that it would allow the FCC a chance to provide a “reasonable explanation” for its change of mind.
Petition for Certiorari
The FCC and the Justice Department, however, did not take up the offer to provide an explanation for its policy, believing that it would be futile to try in view of the Circuit Court’s negative comments about its chances of surviving the First Amendment. The petition for certiorari, filed Nov. 1, 2007, raised only a statutory question, not a constitutional argument. It asked whether the Circuit Court was wrong in striking down the single usage ban under the indecency provision of communications law. The Commission and the Department contended that the lower court “appears to have put the FCC to a choice between allowing any free use of any expletive no matter how graphic or gratuitous, or else adopting a (likely unconstitutional) across-the-board prohibition against expletives. There is no reason that the Commission must choose between those per se rules.” The petition argued that, even though the lower court had merely remanded the case, it still merited Supreme Court review at this point because the FCC had already explained its policy fully, and it could not gain anything by trying again to persuade the Circuit Court to reconsider its musings about constitutionality. Fox TV and the other broadcasters, in responding to the petition, argued that the Court should not turn away from its general practice of refusing to hear cases that have only been returned to a federal agency for a new look. They also noted that there is no split in the Circuit Courts on the legal issue, and they rejected the FCC argument that the Second Circuit ruling conflicted with the Court’s Pacifica ruling in 1978. The Circuit Court, they said, had not even resolved whether the FCC could regulate single expletives as indecent. But, they added, the Circuit Court ruling was correct, anyway. The Supreme Court, apparently unwilling to make the FCC try again to justify its policy, granted review on March 17. Oral argument is scheduled for Tuesday, Nov. 4.
Merits Briefs
The Commission, renewing its complaint that the Circuit Court has tied its hands so that it must ban all fleeting expletives, or none, contended that nothing in federal administrative law requires the FCC to use a “blunt instrument” in its regulation of broadcast indecency. “The use of an expletive by, for example, a wire-tapped organized-crime figure on a news program is far removed from the use of the same word in a dialogue on an awards show.” The two, it contended, should not have to be treated the same way. But the Commission also challenged the Court to rule that, as an expert agency, the FCC is better suited than the courts to decide on the meaning a single, vulgar word has in the broadcast setting. Evaluating connotations of language, the brief said, is what the FCC does. Besides, it contended, the fine points of language may be lost on children, and it is the Commission’s duty to protect them from the shock of vulgarity on the airwaves. That brief, however, has stirred up a sharp new controversy on another level by suggesting that the broadcasters were barred from raising in the Supreme Court their First Amendment challenge to the revised FCC policy. To bring that issue up now, the Commission contended, would be to allow the broadcasters to make an argument that they should have raised by filing a cross-petition, which they did not do. Since the Second Circuit did not address the constitutional argument, the brief asserted, the broadcasters would be seeking broader relief than they got in the Circuit Court, and that should be out of their reach given the case’s present posture. In response, the broadcasters, in two separate merits briefs, sought to make the First Amendment challenge a centerpiece of the case at this stage. Fox TV’s brief said the FCC was now asking the Court to “act as if there are no constitutional issues implicated.” The constitutional issues, the brief said, “remain critically important to a proper consideration of the issues.” If the policy ultimately were to be declared unconstitutional, it added, an opinion on the administrative law issue “would be academic.” The regulation of indecent speech, according to Fox TV, “necessarily implicates core First Amendment values, and the administrative law analysis simply cannot be divorced from the constitutional one.” A change in agency policy that curbs more speech must be justified not only by a full explanation, but also “by proof that the policy represents the ‘least restrictive’ means to address a real, established harm.” The three commercial networks – NBC, CBS and ABC – opened their separate brief with a blunt assertion: “This is a case about the First Amendment.” The brief moved deeply into that argument, suggesting that the new FCC approach is invalid because it is unconstitutionally vague that has led to arbitrary enforcement, and is invalid as a content-based restriction based on a supposition – never embraced by the Court – that a “fleeting utterance of an expletive poses” a threat to children’s well-being. That brief also sought to counter the FCC argument that the broadcasters were seeking to expand the Second Circuit ruling, contending that there is no way the Supreme Court can uphold the FCC policy without “departing from fundamental principles of First Amendment law.” If the case turns solely on well-settled notions of administrative law, according to the three networks’ brief, that is not an issue that is worthy reviewing, and the grant of review should be dismissed.
Analysis
The Supreme Court’s willingness to grant review of this case does not guarantee that it will decide the case on the merits. Lingering in the case is the question of whether the case was ready for Supreme Court review, after akkm since the FCC did not undertake any new review following the Second Circuit decision, instead proceeding directly to the Supreme Court. Once the Justices have gone over the merits briefs, and the discussion at oral argument, they could opt to let the case go back to the FCC to see if it can produce a fuller rationale for its policy change. The FCC’s attempt to head off any review by the Court on the First Amendment questions that the broadcasters say remain in the background has added a potentially significant complication to the Justices’ review. They could have to sort out just what is before them and, indeed, whether they should use their discretion to reach out for constitutional issues that were not definitively resolved by the Circuit Court. If the Court should agree that the FCC does have the authority, under communications law, to enforce its new policy on single expletives, it would then have two options: address the statutory and First Amendment challenges that the broadcasters are still pressing, or let the Second Circuit explore those formally in the first instance. But if the Court should rule that the FCC simply does not have the authority, statutorily, to regulate “fleeting expletives,” there would be no need to address the constitutional issue.
