Analysis
The federal government’s battered policy against what it considers to be “indecent” programming on television has weathered two showdowns in the Supreme Court in the past three years. But, on Thursday, the Court impliedly posed a question: whether that Federal Communications Commission policy — if left as is — would survive a third such encounter. The signals were not promising for the FCC.
The new ruling in FCC v. Fox Television Stations, et al. (10-1293), of course, did not strike down the policy. It nullified specific orders by the FCC enforcing its policy, and avoided the First Amendment issue altogether. FCC thus does retain the option of going right ahead to regulate broadcasts of single uses of four-letter words and momentary glimpses of provocative nudity, as if nothing had changed. It also has the option of reconsidering, but anything new it writes will again be tested constitutionally, so either way, there will be a third round.
Interestingly, the two options for the FCC were reflected in dueling reactions by interest groups on Thursday. The Family Research Council, a conservative advocacy group. said the Court had given “the FCC the green light to continue imposing indecency fines on the networks.” On the other end of the spectrum, the American Civil Liberties Union, a liberal advocacy group, said: “Although today’s decision is a narrow one, the indecency regime is now on life support.” It could take a while, maybe two years or so, to see who was right.
The Court struck down orders that the FCC had issued, finding violations of its “fleeting” indecency standards by Fox TV and ABC-TV, and it did so on the premise that those orders were unconstitutionally vague, under the Constitution’s Due Process Clause. What the Court meant by that was that the two broadcasting companies had not been warned in advance of the “abrupt change” that the FCC would make in its policy in 2004, so they had no way of knowing when a specific broadcast would cross the line into a forbidden area.
If that were all that might be meant about the concept of vagueness under the Due Process Clause, then the FCC would be able to take action now against virtually any fleeting expletive or momentary display of nudity, since its policy has been in place for the past eight years and everybody is on notice. (It was not in place when the specific broadcasts at issue before the Court were aired.) That was the kind of vagueness that the Court primarily found to exist in the enforcement actions specifically at issue.
But there is another way to look at vagueness beyond the mere absence of advance notice: a policy can be vague if it is applied in some circumstances, but not in others, but there is no clear distinction between the situations where it is applied and when it is not. That concept played less of a role in the Justices’ new ruling, but it was mentioned. The Court noted that the Second Circuit Court, in finding the policy to be too vague, had found that the FCC had enforced its policy on fleeting profanity in inconsistent ways, creating some exceptions to the policy but doing so under opaque reasoning, such as whether a broadcast was artistic, or educational, or newsworthy.
Justice Anthony M. Kennedy’s opinion discussed the two notions of vagueness: notifying regulated parties of what is required of them, and making a policy clear and precise enough that it is not enforced “in an arbitrary or discriminatory way.”
As this long-running controversy returns to lower courts, and to the FCC, it is the second notion that is likely to have more impact on whether an indecency policy for broadcast TV survives the next constitutional round. If the FCC does not re-think its policy, and find new ways to spell it out with greater precision, the policy likely is going to be more vulnerable. Justice Kennedy, while saying that the Court was not deciding the constitutionality of the existing policy, made a point of remarking that the new decision left the Commission “free to modify” its policy, and then the courts would be free to react. In the context of this opinion, that probably should be interpreted as an invitation for the FCC at least to ponder whether it needs to make a change that gives broadcasters a more reliable sense of when they will get into trouble with the policy.
But among the other questions that the Kennedy opinion said were not being decided now was whether the Court at some point will reconsider its 1978 decision in FCC v. Pacifica Foundation. That is the ruling that first validated a broadcast indecency policy carried out by the FCC, and its continuing validity was challenged in the briefing in the new Fox TV case. Notably, Justice Ruth Bader Ginsburg, in a brief opinion Thursday saying that she joined only in the result, not in Kennedy’s reasoning, called for “reconsideration” of the Pacifica precedent.
In doing so, she cited a separate opinion by Justice Clarence Thomas, in the Court’s 2009 ruling in an earlier phase of the Fox TV case, arguing that technological change in broadcasting and communications generally had undermined the Pacifica rationale. (Thomas’s opinion then also questioned the continuing validity of a 1969 decision by the Court, in Red Lion Broadcasting v. FCC, upholding Congress’s power to put more restrictions on expression in the broadcast medium than in print. It is unclear whether there is any push within the Court now to reconsider the Red Lion ruling, although there is a pending set of cases that could bring up that issue — the cases, likely to be acted upon soon, test the FCC’s limits on cross-ownership of newspapers and TV or radio stations [dockets 11-691, 11-696, 11-698].)
The new Fox TV ruling was decided by an eight-member Court, because Justice Sonia Sotomayor was disqualified, presumably because she had had something to do with the case in her former role as a Second Circuit Court judge. It is possible that the Sotomayor recusal helped account for the fact that, although the Court pondered this case for some five months after the oral argument, the final decision emerged in a surprisingly narrow way. Conceivably, with an eight-member Court, the Justices could not come up with a five-member majority either way on the constitutionality of the FCC policy, so the due process, lack-of-notice approach was adopted as a fallback to avoid a four-to-four split that would have simply upheld the Second Circuit ruling nullifying the policy.
Plain English summary:
The Federal Communications Commission, the government agency that regulates radio and television stations (and, sometimes, those stations’ networks), in 2004 changed its policy on what it would consider to be “indecent” and thus could not be put on the air on radio or TV between 10 a.m. and 6 p.m. when children might be watching or listening. Before 2004, the FCC banned vulgar four-letter words only if they had been repeated over and over again. With the change in policy, the FCC said it would ban even a single, fleeting use of such a word during the daytime hours. It later said that it would also ban even momentary glimpses, on TV, of a nude body if it was shown in a sexually provocative way. The Supreme Court was asked in this case to decide whether it violates the free-speech rights of radio and TV stations, and their networks, for the FCC to impose such a broad ban. In deciding the case, however, the Court did not settle whether the FCC policy was unconstitutional under the First Amendment. It said only that broadcasters had a constitutional right to be warned in advance of what was forbidden, and the FCC had imposed its changed policy after the broadcasts had aired, not before. The FCC has the option now of reconsidering its policy, or keeping it as is, and awaiting a new constitutional challenge in court. The Court’s ruling was by unanimous vote, but Justice Sonia Sotomayor did not participate, because she had some involvement with the case earlier when she was a judge on the Second Circuit Court of Appeals in New York.
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