Argument preview: 4-letter words and TV, Round II

At 11 a.m. on Tuesday, the Supreme Court will hold one hour of oral argument on the constitutionality of the government’s ban on “indecency” on television and radio, in the case of Federal Communications Commission v. Fox Television Stations (10-1293).  Defending the policy will be U.S. Solicitor General Donald B. Verrilli, Jr.   Representing broadcasting companies will be Carter G. Phillips of the Washington office of Sidley Austin and Seth P. Waxman of the Washington office of Wilmer Cutler Pickering Hale and Dorr, each with 15 minutes of time.  The case will be heard by eight Justices, since Justice Sonia Sotomayor is recused.

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Background

Two years after barely surviving a narrower legal challenge in the Supreme Court, the Federal Communications Commission’s sweeping ban on TV and radio programs it considers to be “indecent” is back before the Court to see if the policy can withstand the ultimate test: the Constitution’s First Amendment.   In April 2009, the Court, dividing 5-4, overturned a Second Circuit Court decision that federal communications law did not give the FCC the authority to impose the ban.  After that, the Second Circuit in July 2010 nullified the policy again, this time finding it too vague to satisfy the First Amendment.   In the first round before the Justices, the case had involved the ban as it applied to four-letter words, even if they were uttered “fleetingly,” only a single time.  As the case returns, it now also involves the validity of the ban as the FCC applied it to brief nudity scenes written into program scripts.

The outcome of the case may settle just how far the government may go to police single uses of the “F-word” and the “S-word” and fleeting portrayals of nudity on the air.   The broadcast companies and other media organizations regard the case as one of very high stakes for their freedom of expression, and the FCC, on its side, regards the case as a fundamental test of the government’s power to act against what Justice Antonin Scalia has described as “the coarseness of public entertainment.”

It is important to note, at the outset, that this controversy is not about obscenity.   Federal communications law bars both obscene and indecent material from TV and radio broadcasts, but the fact is that the Constitution does provide protection for a good deal of “indecent” expression, while providing no protection at all for obscene utterances.  This case is focused entirely on the FCC’s authority to regulate broadcasts that it deems to be “indecent.”

For nearly three decades, the FCC had followed an indecency policy that was quite tolerant of profanity on TV and radio, making no effort to forbid incidental or fleeting use of such utterances; it was only interested in their deliberate, repeated use, as in the famous radio monologue, “Filthy Words,” by comedian George Carlin.  The government’s attack on the Carlin recitation led to the most important constitutional ruling so far on broadcast “indecency” — the Court’s 1978 decision in FCC v. Pacifica Foundation, upholding the policy as it then existed.

The FCC made a sharp turn in policy in March 2004, when it announced that its policy would no longer allow the use of single expletives, however fleeting, on radio and TV.  The ban, though, is not around-the-clock; it applies only to broadcasts between 6 a.m. and 10 p.m., a time period when the Commission believes it is most likely that children will be watching or listening.  One incident that had played a role in the policy change was rock singer Bono’s use of the “F-word” during a Golden Globes award ceremony on NBC-TV in January 2003.  Bono was not punished, because that incident had occurred before the policy had changed.

As the FCC took its policy back to the Supreme Court last April, after the Second Circuit nullified it, the new case involves three broadcast incidents — two dealing with four-letter words, one with nudity.

The “fleeting expletives” part of the case focuses upon two broadcasts on Fox TV of the Billboard Music Awards — one on December 9, 2002, during which singer-actress Cher used the “F-word” to dismiss her critics, and one on December 10, 2003, when actress Nicole Richie used both the “F-word” and the “S-word” in an exchange with “The Simple Life” co-star Paris Hilton, disdainfully referring to the low quality of that program series.

The FCC ruled that both broadcasts violated the indecency ban, but, as with the Bono broadcast, it declined to impose any punishment, on the premise that broadcast licensees did not have notice at the time of those shows of the change in policy that would come later.  In 2006, the FCC again found the two broadcasts in violation of its policy, but once more declined to impose any punishment.   That was the status of litigation as it went to the Supreme Court the first time, resulting in the ruling that communications law did, indeed, permit the Commission to formulate the policy in its broader form.  The Court’s main opinion, written by Justice Scalia, said it was reasonable for the agency to “conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children.”

Back in the Second Circuit, the Fox TV case produced a ruling saying that that court was not bound by the Supreme Court’s Pacifica decision, because the Justices had not dealt in that case with the vagueness issue.  It also refused to follow a D.C. Circuit Court ruling in 1991 that had rejected a vagueness challenge to the policy, saying that it was not bound by a ruling in another circuit and, in any event, it did not find that ruling persuasive.   On the vagueness point, the Second Circuit said that broadcasters were left to guess whether an expletive would be treated by the FCC as integral to a program, or whether it would consider a particular broadcast to be a bona fide news interview.  In making that comment, it cited a series of other FCC orders dealing with other single-expletive broadcasts.  The Circuit Court also said that the flexibility that the agency insisted was a feature of its policy — focusing in each case on context — resulted in a variable enforcement standard that not even the Commission itself could spell out or apply consistently.

The ruling in the Fox TV case was followed in a separate ruling, bringing into the controversy the FCC’s policy as it applied to fleeting exposures of nudity on TV and radio.  In February 2003, ABC-TV had broadcast an episode in the popular police drama, NYPD Blue, in which a female actress was shown disrobing in a bathroom — a scene that revealed a portion of one of her naked breasts, and several full views of her buttocks, and contained the image of a little boy apparently embarrassed at her appearance.  The camera several times scanned the rear image of the naked woman.

Treating this intentionally scripted display as a violation of its indecency policy, the Commission levied a fine of $27,500 each on several stations that were either owned by or were affiliated with the ABC-TV network (overall, the fines totaled $1.24 million).  The agency also concluded that the display of the woman’s buttocks was a display of an excretory organ, and thus fit within the policy. It also determined that, in context and balance, the materials were patently offensive by contemporary community standards for general audience TV.    It called the show an episode that was “pandering, titillating and shocking” in the images of the woman and the reaction of the boy, who had been viewed by a camera aiming between the woman’s legs.  Also visible, behind the boy’s head, from another camera angle, was the woman’s partially revealed naked torso.

ABC and its affiliates took the case to the Second Circuit, with that court concluding last January that the ban on fleeting nudity was no different for constitutional purposes from the ban on fleeting four-letter words.   The FCC, the Circuit Court remarked, used the same context-based approach that the Fox TV ruling had found to be too vague under the First Amendment.  That ruling, it said, was binding on all panels in the Second Circuit, and it thus wiped out the fines along with the policy.   In that case as in Fox TV, the Second Circuit nullified the policy in its entirety, not just as it had been applied in the specific enforcement actions at issue.

Petition for Certiorari

The FCC returned to the Supreme Court last April — this time backed by the administration of President Barack Obama — to seek full validation of the broader ban that the agency had been enforcing since 2004.  The new Administration’s defense was just as energetic as that of the George W. Bush Administration.  The Court, the government argued, should review the agency policy both for fleeting words and for fleeting nudity, raising two issues for the Court — one for each branch of the policy.  (When the Court accepted the case for review, last June 27, it rewrote the issue it would decide, combining both aspects of the policy into a single question of whether the policy violated either the First or Fifth Amendments.)

In its petition, the government relied on two levels of conflict it saw in the Second Circuit ruling: a conflict with the Pacifica Foundation ruling in 1978 which, the FCC argued, had upheld the very context-based feature of FCC enforcement that the Second Circuit had condemned, and a conflict with the D.C. Circuit Court’s rejections of vagueness claims about earlier versions of the policy.

It also, however, made a broad policy argument: the Second Circuit’s approach, if upheld, would require the Commission to sacrifice its flexible, context-based approach, and turn instead to “hard-and-fast rules prohibiting certain words and images with no meaningful consideration of context.”  That approach, the petition argued, “would be easily circumvented, and it would raise serious First Amendment problems of its own.”   In attempting to judge when an utterance is indecent, the FCC said, the agency must judge the context in which the utterance had appeared.

The petition also noted what it clearly considered a major factor in the agency’s favor: in the Court’s first decision in the Fox TV case, allowing FCC’s change of policy under its governing federal statute, the Court had explicitly commented that the context-based approach had been sanctioned by the Court in the Pacifica ruling.

Had the Second Circuit focused not on the broadened policy as a whole, but rather on the particular facts in the three broadcast incidents, it would not have upheld the broadcasters’ vagueness challenge, the Commission argued.   Even if the policy might be vague as applied to some broadcasts, the petition added, it certainly would not be vague as to all broadcasts.  Striking down the policy as a whole, the petition said, would mean that the FCC could not enforce it “against even the most graphic broadcasts,” such as graphic depictions or oral sex or an extended narrative about anal sex.

Taking on directly the argument of the Second Circuit that the current policy is vague because broadcasters cannot know when they have crossed the “indecency” line, the FCC contended that the broadcasting industry is “highly sophisticated” and thus should clearly have been on notice where that line would be in FCC enforcement actions.

While it conceded that the Second Circuit had closed its opinion in the Fox TV case by saying that it was not preventing FCC from adopting a policy that could be constitutional, the Commission petition said that the Circuit Court had not spelled out any alternative approaches that would satisfy its vagueness standard.

The broadcasters and organizations that had intervened in the case filed four separate briefs urging the Court not to hear the case.  Some argued that the FCC was using hyperbole to get the Court’s sympathy, and one even suggested that the Commission petition somewhat salaciously provided details about the exposure of the woman’s breasts in the NYPD Blue episode.  ABC-TV’s brief also defended that show’s approach to giving the viewers a realistic portrayal of how “gritty” life was in law enforcement, and noted that the network explicitly included on-screen and audio warnings when the show would contain nudity — warnings that, for any TV set equipped with a “V-chip,” would have prevented children from seeing it.

On the legal points, the broadcasters sought to persuade the Court that the Pacifica Foundation ruling should be of no value to the FCC today, because that decision was predicated in part upon the restraint that FCC had shown in its policy up to that time — a restraint that, the challengers contended, the Commission walked away from in 2004.  The votes of Justices that were necessary to uphold the then-enforced policy, one of the briefs implied, would not have been available for the sweeping policy that the FCC is now seeking to enforce.  Much has changed in FCC policy, the briefs argued, since that ruling came down in 1978, and the Commission has since pushed its ban to the limits.

Moreover, some of those briefs pointed out that, while the government had sought to summon precedents that supported its claims, it neglected entirely to mention the Supreme Court’s 1997 decision in Reno v. ACLU, striking down a prohibition on indecency that the briefs said was virtually identical to the approach the FCC was now following.  Fox TV’s brief said that the FCC “remarkably, does not cite Reno even once, much less explain why it does not control the proper disposition of this case.”   Language that was too vague in the context of the Reno case, that brief added, “cannot suddenly become the model of clarity in another” (quoting from the Second Circuit ruling in Fox TV).  (The Reno decision struck down the federal Communications Decency Act, Congress’s first attempt to take steps to regulate obscenity and indecency on the Internet.)

The Fox TV brief, in a final effort to convince the Court not to take on the case, dropped in a suggestion that, if the Court did accept review, the industry would be coming in with demands that the Court reconsider other precedents that had upheld federal regulation of broadcasters, in essence giving them less First Amendment protection than other media — a difference that was no longer justified given the realities of the much wider communications marketplace these days.   Similarly, ABC-TV’s opposition brief made passing comments about the need to reconsider those precedents.

The FCC, in reply, sought to dismiss the challengers’ complaint about the omission of the Reno precedent, saying that ruling came in an entirely different context, and involved a law that sought to bar indecency without making it at all clear what was being barred.

The FCC petition was among the group of cases the Court accepted for review at the end of the prior Term, carrying them over to the current Term.  The grant order noted that Justice Sotomayor had not taken part — apparently because, in her former role as a Second Circuit judge, she had had some role in that court’s reviews of the FCC policy.

Merits Briefs

The FCC’s brief on the merits is largely an expansion of the arguments it made at the petition stage, relying heavily upon the Pacifica Foundation ruling and arguing strenuously that the broadcasters could not possibly have understood that gratuitous use of profanity and nude scenes would be left unregulated by the FCC.   Indeed, the brief contended, the broadcasters themselves have taken steps to warn their audiences that such material in its program scripts may be offensive to listeners, and inappropriate for children.

Undeterred by the broadcasters’ claims that there is no parallel whatever between the indecency policy that the Court had upheld in Pacifica, and the FCC’s current policy, the agency’s brief said the core definition of what is “indecent” has never changed, and the later iterations of the policy have been issued simply to provide “further guidance” to broadcasters about what is, and is not, allowed.  Moreover, the brief said, the indecency policy is applied not to networks but to stations, who operate in a highly regulated industry that gives them genuine sophistication about what the rules are.

If broadcasters wish to continue offering the kinds of utterances and portrayals that they now know are barred by the FCC policy, they are entirely free to do so after 10 p.m., the Commission noted.   They are being restrained, it added, only to serve the FCC’s decades-old policy of protecting children from broadcasts that are not fit for them to see or hear.

In a legal thrust that has deeply alarmed the broadcast industry, the FCC’s merits brief sought to rely in part upon the Supreme Court’s 1969 decision in Red Lion Broadcasting v. FCC, a ruling that upheld broad regulatory power over licensed broadcasters on the premise that the airwaves were a scarce medium, so those given licenses to use it must do so with restraint and with awareness of their civic obligations.  The FCC invoked that precedent (even though it had not done so in its enforcement actions against Fox TV and ABC-TV) in its new brief as part of its argument that broadcast stations are given unique opportunities that must carry with them unique sensitivity to their audiences’ sensibilities.  The FCC also brought that into its argument in partial response to the comment by Fox TV and ABC-TV in opposing review that broadcasters would be seeking reconsideration of precedents underlying broadcast regulation generally, including the Red Lion precedent.

For years, the broadcast industry has sought to undermine the “scarcity rationale” for broadcast regulation, a feature of the Red Lion decision, arguing that the explosion in other media such as cable and broadband make it less necessary to keep tight restraints on only those who broadcast over the air.   (In fact, petitions are now pending in the Court asking the Court to overrule the Red Lion “scarcity rationale” because of the lower level of First Amendment protection that doctrine has allowed for licensed broadcasters compared to other media.  See, for example, Tribune Co., et al., v. FCC, docket 11-696.  Some of the criticism of Red Lion was strongly reinforced by Justice Clarence Thomas, in a separate opinion when the Court last ruled on FCC’s indecency policy two years ago.  He denounced that precedent as “unconvincing” when it was decided.)

In one of the merits briefs supporting the Second Circuit ruling, the concern both in the industry and among its customers over rehabilitating the Red Lion rationale is on full display.  That brief urgently cautioned the Court that it must decide this constitutional case, having to do with “censorship” of content, without even considering Red Lion and its focus on entry into the broadcast marketplace.

On the merits of the FCC policy, the broadcasters’ merits briefs take sometimes conflicting positions on the Pacifica Foundation precedent.  Fox TV’s brief, for example, lamented the “second class” constitutional status that licensed broadcasters have, and urged the Court to announce “firmly and finally” that that status must end in the wake of the rise of so many alternative media sources.  “The day has come,” the brief went on, “for the FCC’s indecency regime to be subjected to the same strict standards that apply to all government attempts to abridge freedom of speech.”   If the Court is not prepared “to revisit” that 1978 precedent, the Fox TV brief said, the precedent at least should not be allowed to expand beyond its origins.

Others in the industry fully embrace Pacifica, obviously because they see it as ratifying a policy of FCC restraint that was reserved for “extreme cases.”  The Court, some of the briefs suggested, need go no further than Pacifica to find that the FCC’s current policy wanders far from what the Court had validated in 1978.  As the brief for the trade group of ABC affiliated stations put it: “As Pacifica‘s carefully limited holding makes clear, the First Amendment protects even indecent speech against government regulation in circumstances other than those equivalent to the ‘verbal shock treatment’ ‘repeated over and over’ that Pacifica addressed.”

The broadcasters sharply attack what they say are the obvious variations in situations that the FCC will treat as violations of its policy.  One of the briefs catalogs, for example, how the FCC has treated the “F-word” and the “S-word,” and derivatives of them, very differently in different cases.  Dismissing the FCC argument that such variations show that the agency is paying close attention to actual context, the broadcasters say the variations demonstrate that the FCC itself cannot put anybody on notice when they actually will run afoul of its policy.

To the FCC’s argument that the broadcast stations could not have been surprised that fleeting expletives and fleeting nudity would be banned, the industry responds that the “notice” given to broadcasters was, rather, a 30-year policy in which such momentary utterances or displays would not get a station into trouble in Washington.   A switch of the kind adopted by the agency in 2004, the industry argued, clearly was a violation of elemental due process rights.

The amici filings in the case are only in part a predictable lot — with advocacy groups worried over the coarseness today of the broadcast medium and, indeed, in society in general, strongly supporting the FCC, and First Amendment advocacy groups equally fervently supporting the broadcasters’ challenge.  But on each side, a lively discussion also has broken out in several briefs opposing the suggestion of Fox TV and ABC-TV that the Court revisit the precedents that underlay government regulation of the broadcast spectrum.  To do that, some on each side are arguing, would undermine worthwhile laws and regulations that keep broadcasters in check, and, especially, laws that protect children.

Analysis

The constitutional task before the Court is difficult enough on its own to make it unlikely that the Court will reach out to reconsider the whole premise of government regulation of broadcasters, as it has been invited, at least implicitly, to do.  But even if the Justices stay focused on the First Amendment and the current FCC policy, they at least are going to have to examine anew the Pacifica Foundation decision, and perhaps to say with some specificity what it means today.  The two main combatants in this case have given starkly contrasting interpretations of how to apply that decision to today’s FCC indecency policy, with some on the broadcast side arguing that the current policy could not satisfy Pacifica‘s rationale, and the FCC arguing that the core of the policy really has not changed since 1978.

The Court no doubt is fully familiar with what the FCC policy now requires, having gone over it closely just two years ago in the first round of the Fox TV case, so the specific facts of the three broadcasts may not have much influence.   The only issue then, at least in its simplest form, is whether the policy satisfies the Constitution.   But given the fracturing of the Court in 2009, it very likely would not be easy to gather a majority one way or the other — especially with Justice Sotomayor not taking part.

The other Justices, of course, are aware that Justice Thomas — as he did in the first round — will be questioning, at least behind the scenes, the constitutional underpinnings of FCC regulation in general, and in relation to the indecency policy in particular.  And his vote may be really critical, given the division the last time around.  The five Justices who made up the majority then are still on the Court, but they were widely splintered in the ruling and might not stay together on the constitutional issue.  Most in doubt, it would seem, would be  Thomas and Justice Anthony M. Kennedy.  In 2009, Kennedy declined to join the part of the Scalia opinion that, in very sharp language, denounced the dissenting opinions.

Two of the dissenters at that time — Justices David H. Souter and John Paul Stevens — have left the Court, and Souter’s replacement — Sotomayor — is out of the case.  Whether Stevens’ successor, Justice Elena Kagan, would side with the FCC is hard to predict at this point. The other dissenters then were Justices Stephen G. Breyer and Ruth Bader Ginsburg. In one scenario, they could hold to their skepticism about the FCC’s current policy, and perhaps pick up Thomas and Kennedy on the constitutional point.  But, without Kagan, that still amounts to just four votes.

Scalia might well hold Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., especially if Scalia on the constitutional issue is as inclined toward the FCC as he was in 2009 on the policy point. And that bloc would then need to pick up Kagan’s vote, but even then, that would add to four — and the Second Circuit ruling might then be upheld by an even 4-4 split, without an opinion.   It can be assumed, then, that Scalia would work diligently to craft an opinion that could attract five votes, even bartering some new limits on FCC’s power in the process.

On Tuesday morning, the three lawyers taking turns at the lectern will try to shape the outcome as best they can, but they do not have a lot to go on as they look back at the Court’s 2009 lineup.