Supreme Court Punts 1st Amendment Issues in FCC v. Fox

WASHINGTON, D.C.—The U.S. Supreme Court today delivered its long-awaited second decision in the landmark indecency cases Federal Communications Commission (FCC) v. Fox Broadcasting and FCC v. ABC, Inc. There's just one problem: There isn't anything in the high court's analysis of the case that they couldn't have said four years ago when the case first came before them.

To be fair, all supporters of free sexual speech should be happy that the Supremes have let Fox Broadcasting off the hook for having aired the 2002 and 2003 Billboard Music Awards, where in the first case, actress/singer Cher commented, "I've also had my critics for the last 40 years saying that I was on my way out every year. Right. So fuck 'em," and in the second, "reality" actress Nicole Richie asked the rhetorical question, "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." (The last statement may have been a pun on the name of the show in which she co-starred, The Simple Life.) They also dismissed the $1.21 million in fines that the FCC levied against ABC for having aired an episode of NYPD Blue in which viewers were treated to seven seconds of actress Charlotte Ross's bare ass and a sideways shot of her bare breast. [Expletives unredacted here and below]

But those who remember the first high court decision in Fox Broadcasting are sure to be puzzled by this one. In the earlier decision, the Supreme Court studiously ignored the Second Circuit's ruling that the FCC's indecency rule, 18 U.S.C. §1464, was unconstitutionally vague and overbroad, instead opting to overrule that circuit's other finding, that the way the commission was currently interpreting that rule, in light of its 2004 "Golden Globes Order," was "arbitrary" and "capricious" under the federal Administrative Procedures Act (APA), and remanded the case to the Second Circuit for further proceedings.

As Justice Anthony Kennedy's opinion in Fox Broadcasting II (the current case) reflects, the FCC has had a long and notorious history of only intermittently (some might say "capriciously") applying its indecency standard to the broadcast media. Of course, the most famous case is 1978's FCC v. Pacifica Foundation—the George Carlin "Seven Filthy Words" case—but Justice Kennedy notes that in 1987 (near the end of Ronald Reagan's first presidential term), the FCC "determined it was applying the Pacifica standard in too narrow a way," and that "in later cases its definition of indecent language would 'appropriately includ[e] a broader range of material than the seven specific words at issue in [the Carlin monologue]'" as part of a "generic definition of indecency"—whatever in the hell that was.

However, "[e]ven under this context based approach, the Commission continued to note the important difference between isolated and repeated broadcasts of indecent material," Justice Kennedy wrote for the unanimous court, later quoting from a 2001 FCC policy statement intended "to provide guidance to the broadcast industry" regarding the FCC's indecency policies, which boiled down to three factors the FCC would consider in making indecency rulings:

"(1) [T]he explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value."

Of course, factor #2's requirement that the material in question "dwells on or repeats at length descriptions of sexual or excretory organs or activities" put it exactly in line with previous FCC practice not to consider "fleeting expletives" or "brief nudity" as violations of its indecency policies.

All that changed, though, with the FCC's "Golden Globes Order," which grew out of an incident during the 2003 Golden Globe Awards, where prize-winning singer Bono, upon receiving his award for Best Original Song, exclaimed, "This is really, really, fucking brilliant. Really, really great."

Of course, most people in modern society don't give a fuck about whether someone says "fuck" in everyday conversation, though some might get a twinge upon hearing it on radio or broadcast TV—it's everywhere on cable—but few would agree with the FCC's description of the word as "one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language," or that "any use of that word or a variation, in any context, inherently has a sexual connotation"—and that therefore, "fleeting expletives" like that one, said just once in a passionate outburst and not repeated, would now be fair game for indecency enforcement.

It is perhaps noteworthy that the Golden Globes Order comes near the end of George W. Bush's first term in office.

But clearly, Bono wasn't suggesting that Billboard magazine giving him an award meant that they (or anyone) should have sexual intercourse with him or them (or anyone), any more than someone on the street saying "Fuck you" means that they want to have sex with the target of the epithet. One would have to be insane to think that ... but we are talking about the FCC here!

But perhaps the most salient point, which forms the crux of the Supreme Court's decision, is that the Golden Globes Order was issued several months after the Cher, Richie and Ross incidents, so the networks could hardly have been put on notice that the "fleeting expletives" or Ross's bare ass were actionable, unless some people at those companies were mind-readers.

Indeed, in the current opinion, Justice Kennedy wrote a paragraph that should make every First Amendment attorney and advocate sit up and take notice:

"A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. See Connally v. General Constr. Co., 269 U. S. 385, 391 (1926) ('[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law'); Papachristou v. Jacksonville, 405 U. S. 156, 162 (1972) ('Living under a rule of law entails various suppositions, one of which is that "[all persons] are entitled to be informed as to what the State commands or forbids" ' (quoting Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) (alteration in original))). This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. See United States v. Williams, 553 U. S. 285, 304 (2008). It requires the invalidation of laws that are impermissibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained 'fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.' Ibid. As this Court has explained, a regulation is not vague because it may at times be difficult to prove an incriminating fact but rather because it is unclear as to what fact must be proved."

It's clear analysis like that above which should give adult producers and retailers hope that the Supreme Court will one day come to its senses and recognize that even under the Miller standards, the so-called "definition" of "obscenity" employs terms—"community standards"; "prurient interest" and its usual "definitional" words "morbid," "degrading," "unhealthy"; and "patently offensive"—that cannot possibly "provide a person of ordinary intelligence fair notice of what is prohibited."

But getting back to the case at hand, the high court noted that at the very least, the FCC should have let the broadcasters "know what is required of them so they may act accordingly," and that "precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way." As to the first point, everything the FCC had written prior to the Golden Globes Order had made it clear that momentary lapses of language or nudity by broadcasters would be overlooked, and as to the second, both Fox Broadcasting and ABC noted several instances where, even after the issuance of the Golden Globes Order, the FCC had nonetheless let slide the vulgarities and nudity shown during PBS broadcasts of Steven Spielberg's movies Saving Private Ryan and Schindler's List, as well as the expletive uttered during at least one breakfast-time TV broadcast of an interview with a cast member of the reality show Survivor.

One section of Justice Kennedy's opinion that those fighting 18 U.S.C. §2257, the federal recordkeeping and labeling law, might want to note is the Solicitor General's argument that the high court can't overturn the current FCC rule as unconstitutionally vague "because the Commission did not impose a sanction where Fox lacked such notice." In other words, because the FCC didn't try to fine Fox for broadcasting "shit" and "fuck," Fox hadn't suffered the injury necessary for the court to consider whether the FCC's rule was "void for vagueness."

Justice Kennedy's response to that argument is instructive: "This 'policy of forbearance,' as the Government calls it, does not suffice to make the issue moot. Though the Commission claims it will not consider the prior indecent broadcasts 'in any context,' it has the statutory power to take into account 'any history of prior offenses' when setting the level of a forfeiture penalty. Just as in the First Amendment context, the due process protection against vague regulations 'does not leave [regulated parties] . . . at the mercy of noblesse oblige.'" (This last quote from U.S. v. Stevens, the 2011 dog-fighting videos case.)

This is one of the exact same arguments the Department of Justice (DOJ) has made in Free Speech Coalition's lawsuit against §2257: That the law doesn't apply to non-commercial producers of sexually explicit materials—say, a couple making a home sex movie for their own exclusive use—because, well, the DOJ now says it doesn't. The Third Circuit saw through that argument in its overturning of the lawsuit's dismissal by the trial judge, noting that with the administration changing every few years, the plaintiffs can't count on the DOJ never to go back on its word.

(The court also shot down the FCC's argument on the basis that even though Fox wasn't fined, the violation on its record would cause "reputational injury"—so it's probably a good time to point out that "Fox Broadcasting" and the "Fox News Channel" are two different entities.)

"The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent," the opinion penultimately concludes. "Therefore, the Commission's standards as applied to these broadcasts were vague, and the Commission's orders must be set aside."

VICTORY! Right? Not quite.

"It is necessary to make three observations about the scope of this decision," Justice Kennedy stated. "First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission's indecency policy."

WHAT? Those "First Amendment implications" were exactly the reason the Supremes remanded the case to the Second Circuit in the first place, and that circuit made it abundantly clear that the FCC's ruling didn't even survive intermediate scrutiny—and now the court is saying that although it asked for consideration of the free speech issues, it's going to ignore them because it can???

"Here, the Court rules that Fox and ABC lacked notice at the time of their broadcasts that the material they were broadcasting could be found actionably indecent under then-existing policies," Justice Kennedy wrote as his "second observation." "Given this disposition, it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and subsequent adjudications. ... Third, this opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements. And it leaves the courts free to review the current policy or any modified policy in light of its content and application."

So: Although Fox Broadcasting and ABC are now off the hook for having broadcast a couple of common "vulgar" words and an actress's bare ass, the Supreme Court has "kicked down the road" the real central issue in the case: The fact that what's considered "indecent" is so time-dependent that the meaning changes at least yearly such that rules against it must fall to legitimate First Amendment considerations. Worse, it allows the FCC to continue its current insane policy that there's something harmful to the American public if it hears someone on TV or radio even once say, "cocksucker," "cunt," "fuck," "motherfucker," "piss," "shit" or "tits"—George Carlin's "seven filthy words"—or sees something every human sees every day: the naked human body.That is not a "victory" for free speech.

To her credit, Justice Ruth Bader Ginsburg, in a concurrence (which Justice Clarence Thomas joined), stated, "In my view, the Court's decision in FCC v. Pacifica Foundation was wrong when it issued. Time, technological advances, and the Commission's untenable rulings in the cases now before the Court show why Pacifica bears reconsideration."

That's one savvy old lady, and President Obama might want to consider long and hard whether she should be elevated to Chief Justice if the job opens up. But sadly, considering that the Fox Broadcasting/ABC opinion doesn't even set out the words at issue, opting instead for "f***ing" and "s***," America is probably several years away from a sane "indecency" policy.

In any case, the high court remanded both the Fox Broadcasting and ABC cases to the Second Circuit "for further proceedings consistent with the principles set forth in this opinion," though it's unclear what the appeals court will be allowed to do with them. The Supremes seem to have foreclosed any First Amendment considerations of the cases, but maybe there's something non-obvious that will allow the Second Circuit to overturn the Golden Globe Order.

Frankly, we're not going to bet on it.