SCOTUS Seems Inclined to Overturn the FCC's Indecency Policy, but Not the Decision That Authorized It

This morning the Supreme Court heard oral argument in FCC v. Fox, which poses the question of whether the federal ban on "broadcast indecency" violates the First Amendment. In 2010 the U.S. Court of Appeals for the 2nd Circuit said it did because it was unconstituionally vague. "By prohibiting all 'patently offensive' references to sex, sexual organs, and excretion without giving adequate guidance as to what 'patently offensive' means," the court said, "the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive." Fox and the other networks challenging the FCC's policy are urging the Supreme Court not only to uphold the 2nd Circuit's ruling but to overturn FCC v. Pacifica, the 1978 decision that approved content-based regulation of broadcasting on the grounds that the medium was "uniquely pervasive" and "uniquely accessible to children."

Justice Sonia Sotomayor has recused herself from the case because she served on the 2nd Circuit until 2009. That creates the possibility of a tie, in which case the appeals court's decision would stand. Judging from the justices' previous positions and their comments during the oral argument, that outcome is reasonably likely, and there may even be five votes for overturning the FCC's current policy. It seems much less likely that a majority will favor overturning Pacifica, even though its logic was shaky to begin with and has been further undermined by three decades of technological progress.

During an earlier round of this case, the Supreme Court ruled, in a 2009 opinion by Justice Antonin Scalia, that recent changes in he FCC's approach to "fleeting expltives" did not violate the Administrative Procedure Act (APA). Justices Ruth Bader Ginsburg and Stephen Breyer dissented, deeming the commission's shift in policy "arbitrary and capricious." Breyer, in an opinion joined by Ginsburg (along with David Souter and John Paul Stevens, who are no longer on the Court), expressed a special concern (which he reiterated today) about the impact on small stations that might inadvertently air an expletive. In a separate dissent, Ginsburg wrote: "There is no way to hide the long shadow the First Amendment casts over what the Commission has done. Today's decision does nothing to diminish that shadow." Justice Clarence Thomas agreed with Scalia that the FCC had complied with the APA, but he reiterated his longstanding skepticism of the constitutional justification for regulating what TV and radio stations air. Thomas said Pacifica and Red Lion Broadcasting v. FCC, a 1969 decision that upheld the so-called fairness doctrine, "were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity." He declared himself "open to reconsideration of Red Lion and Pacifica in the proper case."

During today's oral argument, Thomas (as is his custom) did not say anything, but Ginsburg continued to signal her skepticism about the constitutionality of the FCC's policy, expressing sympathy for the view that it is difficult to predict what the commission will deem indecent. Justice Elena Kagan, who joined the Court in 2010, also raised points favorable to the broadcasters:

I think that the…networks really are saying: Well, even if some regulation is permissible, the kind of regulation that the FCC has done here is regulation that gives it complete discretion as to what kind of speech to go after and what not to go after; that it has not tied itself in any way to any kinds of standards….The way that this policy seems to work, it's like nobody can use dirty words or nudity except for Steven Spielberg….There's a lot of room here for FCC enforcement on the basis of what speech they think is kind of nice and proper and good. And so that's a serious First Amendment issue.

Breyer likewise seemed inclined to uphold the 2nd Circuit's decision, although he emphasized that "we don't have to overrule Pacifica." Justice Anthony Kennedy, who voted with the majority in 2009, challenged Solicitor General Donald Verrilli to justify the legal distinction between broadcast TV and programming delivered via cable, satellite, or fiber-optic lines:

It's not apparent to many people which [channels] are broadcast and which are not. But you're saying that there's still a value, an importance, in having a higher standard or different standard for broadcast media on the  television. Why is that, when there are so many other options, and when it's not apparent to many viewers which of the two they're watching?

Kennedy deemed Verrilli's answer—that broadcasters can be regulated because the government licenses them—"circular," asking the government's lawyer to identify "a functional, pragmatic, practical difference," which he never did. That does not mean Kennedy is ready to join Thomas in overturning Pacifica, but he could supply a fifth vote for making the FCC come up with a new policy.

By contrast, Scalia, Justice Samuel Alito, and Chief Justice John Roberts (who all agreed in 2009 that the FCC had not been "arbitrary and capricious") expressed sympathy for the view that the FCC's content regulations serve a valuable function. Scalia said the indecency ban has "symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts." Roberts said all the government wants is "a few channels where…they are not going to hear the S-word, the F-word," and "are not going to see nudity." And even while declaring that "broadcast TV is living on borrowed time" and will soon go "the way of vinyl records and eight-track tapes," Alito worried that lifting the indecency ban would lead to "a lot of people parading around in the nude and a stream of expletives" on networks like Fox. In any case, he said, since the broadcast channels to which the ban applies eventually won't exist, "why not let [the ban] die a natural death?" Maybe because it's unconstitutional. For more on that, see my column tomorrow.

The transcript of the oral argument is here. SCOTUSBlog has case-related documents, including amicus briefs, here. Of particular interest: The ACLU brief includes a bunch of examples that illustrate the chilling effect of the indecency ban, and the Cato brief explains in detail why Pacifica's reasoning is obsolete.