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Wednesday, June 20, 2012, Alert No. 2,400.
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Supreme Court Again Ducks First Amendment Issue in FCC v. Fox Television

6/21. The Supreme Court issued its opinion [23 pages in PDF] in FCC v. Fox Television, the long running proceeding regarding the Federal Communications Commission's (FCC) attempt to fine television broadcasters for unscripted fleeting expletives and nudity nearly a decade ago.

Summary. The Court of Appeals held in 2010 that the FCC violated the First Amendment free speech rights of broadcasters. The Supreme Court vacated. It held that the FCC failed to give notice, in violation of the Fifth Amendment due process clause. It added that it did "not address the First Amendment implications of the Commission's indecency policy".

On the one hand, the Supreme Court has left in place a judicial interpretation (FCC v. Pacifica) of the First Amendment that is hopelessly outdated in light of new programming delivery platforms, and parental control technologies. The FCC remains free, for now, to regulate and censor indecent content on broadcast television, and impose fines, provided that it has given advance notice of what is prohibited by its regulatory regime.

On the other hand, the Supreme Court may merely have ducked the First Amendment issue in order to decide it another day. In the just released opinion, Justice Ruth Ginsburg stated in a separate opinion, that she is ready to overturn the landmark opinion upon which FCC authority to censor broadcast indecency is based, FCC v. Pacifica

Also, while the Justice Clarence Thomas quietly joined in the opinion of the Court in the present opinion, he wrote in a concurring opinion to the Supreme Court's 2009 opinion in this proceeding that when the First Amendment issue is before the Court, he is ready to overturn not only Pacific, but also Red Lion.

On July 13, 2010, the U.S. Court of Appeals (2ndCir) issued its opinion [32 pages in PDF] holding that the FCC's indecency policy "violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here".

The just released Supreme Court opinion vacates the judgments of the Court of Appeals, and remands. The Court held that the FCC "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".

This disposition, it should be noted, also fails to put members of Congress, FCC officials and television broadcasters on notice regarding what are the First Amendment free speech clause limitations upon Congressional or FCC censorship of indecent speech.

While "It is emphatically the province and duty of the judicial department to say what the law is", Marbury v. Madison, 5 U.S. 137 (1803), after two Court of Appeals opinions, and two Supreme Court opinions, the nation is still left without a clear statement of what the law is on this key issue.

Constitution. The First Amendment provides in part that "Congress shall make no law respecting ... the freedom of speech, or of the press ...".

However, the Supreme Court has construed this clause as if it provided that "Congress may make laws limiting freedom of speech ... if they satisfy the evolving standards or principles set by the Judiciary".

In particular, the Supreme Court has held that the FCC, which derives it authority from Congressional statute, may regulate television broadcast speech which it deems indecent.

See, 1978 opinion in FCC v. Pacifica Foundation, 438 U.S. 726. That opinion upheld the FCC's order penalizing the broadcast of a dirty words monologue by a comedian named George Carlin. See also, 1969 opinion in Red Lion v. FCC, 395 U.S. 367. That opinion upheld the FCC's regulatory regime named "fairness doctrine", under which the FCC compelled speech.

The Fifth Amendment provides in part that "No person shall ... be deprived of life, liberty, or property, without due process of law ..."

Administrative History: the FCC Fines. The just released opinion relates to FCC penalties imposed on television broadcasters for unscripted or fleeting statements or nudity dating back to 2002.

The FCC relied upon 18 U.S.C. § 1464, which provides in full that "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both."

However, neither the statute, nor any FCC rule, provided that fleeting expletives and momentary nudity could be found actionably indecent.

On November 6, 2006, the FCC adopted and released an Order [36 pages in PDF] regarding complaints that four broadcast television programs contained indecent and/or profane material within the meaning of § 1464. This order is FCC 06-166.

The Order concluded, among other things, that comments made by Nicole Richie during "The 2003 Billboard Music Awards" and by Cheryl LaPiere during the "The 2002 Billboard Music Awards" were indecent and profane. Both used the word "fuck" in unscripted live statements.

LaPiere said, "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." Richie said, "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." The Supreme Court noted that the episode of an ABC television program titled "NYPD Blue" at issue disclosed "nude buttocks of an adult female character for approximately seven seconds and for a moment the side of her breast".

See also, stories titled "FCC Releases Indecency Orders" in TLJ Daily E-Mail Alert No. 1,332, March 20, 2006, and "FCC Releases Order on Remand Regarding Broadcast Indecency" in TLJ Daily E-Mail Alert No. 1,484, November 7, 2006.

Judicial History. Broadcasters filed petitions for review with the Court of Appeals. In 2007, the U.S. Court of Appeals (2ndCir) vacated the order of the FCC on the grounds that the FCC violated the Administrative Procedure Act (APA). It did not rule on the First Amendment issues, but suggested that the FCC order would not satisfy First Amendment scrutiny. In 2009, the Supreme Court reversed, on APA grounds, without addressing the First Amendment issues. The Second Circuit, on remand in 2010, issued its second opinion, and again vacated the FCC order -- this time on First Amendment grounds.

Broadcasters fined by the FCC, including Fox Television Stations and ABC, filed petitions for review of the FCC's order with the Second Circuit. They argued both that the order is arbitrary and capricious in violation of the APA, and unconstitutional under the First Amendment.

On June 4, 2007, the Court of Appeals issued its divided opinion finding that "the FCC's new policy sanctioning ``fleeting expletives´´ is arbitrary and capricious" under the APA. The Court of Appeals did not also rule on the Constitutional challenge, but strongly hinted that if required to address that issue, it would find the FCC's policy unconstitutional. See, story titled "2nd Circuit Vacates and Remands FCC Profanity Order" in TLJ Daily E-Mail Alert No. 1,590, June 4, 2007. That opinion is reported at 489 F. 3d 444.

The FCC did not then withdraw or modify its order. Rather, it petitioned the Supreme Court for writ of certiorari. On April 28, 2009, the Supreme Court issued its divided opinion [72 pages in PDF], reversing the Court of Appeals.

The Supreme reversed and remanded in a 5-4 split. Justice Scalia wrote the majority opinion in which Justices Roberts, Thomas, Alito and Kennedy joined. The majority ruled solely on the APA issue: "We find no basis in the Administrative Procedure Act or in our opinions for a requirement that all agency change be subjected to more searching review. The Act mentions no such heightened standard."

The Court wrote that the Constitutional issues "will be determined soon enough, perhaps in this very case. ... We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time."

See, story titled "Supreme Court Reverses in FCC v. Fox" in TLJ Daily E-Mail Alert No. 1,932, April 28, 2009.

On July 13, 2010, the Second Circuit issued its opinion [32 pages in PDF], on remand from the Supreme Court. That opinion is also reported at 613 F. 3d 317.

It held that the FCC's indecency policy "violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here". It vacated the FCC's order.

See also story titled "2nd Circuit Holds FCC Indecency Policy Violates First Amendment" in TLJ Daily E-Mail Alert No. 2,103, July 13, 2010.

The government again sought review by the Supreme Court.

Opinion of the Supreme Court. Justice Anthony Kennedy wrote the just released opinion of the Supreme Court. Chief Justice Roberts, and Associate Justices Scalia, Thomas, Breyer, Alito, and Kagan joined. Justice Ginsburg wrote a separate opinion. Justice Sonia Sotomayor did not participate.

The Court wrote that "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." It added that "This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment."

This principle "requires the invalidation of laws that are impermissibly vague." The Court elaborated that a punishment fails to comply with due process if a 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."

Moreover, the Court wrote, there are two elements: "first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way."

The Court then wrote that the regulatory history of this proceeding "makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent; yet Fox and ABC were found to be in violation. The Commission’s lack of notice to Fox and ABC that its interpretation had changed so the fleeting moments of indecency contained in their broadcasts were a violation of §1464 as interpreted and enforced by the" FCC failed to provide fair notice.

The FCC "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."

Back in 2007, in its first opinion, the Supreme Court held that this change of interpretation of the statute did not amount to a violation of the APA. In this opinion, the Supreme Court holds that it does amount to a violation of the 5th Amendment due process clause.

The Court ducked the First Amendment issue, and by failing to address whether Pacifica remains good law, left Pacifica in place, at least until the Court decides to decide.

The Court added that "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. It is argued that this Court’s ruling in Pacifica ... should be overruled because the rationale of that case has been overtaken by technological change and the wide availability of multiple other choices for listeners and viewers." However, "These arguments need not be addressed here. In light of the Court’s holding that the Commission's policy failed to provide fair notice it is unnecessary to reconsider Pacifica at this time."

Finally, the Court wrote this: "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."

Ginsburg Opinion. Justice Ruth Ginsburg wrote a one paragraph opinion, labeled as "concurring in judgment".

She wrote that "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."

She also referenced Justice Thomas concurring opinion in the Supreme Court's 2009 opinion.

Justice Thomas. Justice Clarence Thomas joined in the opinion of the Court in the just released opinion. However, he wrote a concurring opinion to the Supreme Court's 2009 opinion. At that time he suggested that he was ready to overturn both Red Lion and Pacifica.

His failure to write a separate opinion to the just released opinion may indicate that he has retreated from his 2009 stand. Or, it may be the case that having expressed his views in 2009, it would have been redundant and unnecessary to restate them.

In 2009, Thomas noted "the questionable viability of the two precedents that support the FCC's assertion of constitutional authority to regulate the programming at issue in this case. ... Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity."

He reviewed the scarcity and pervasiveness rationales, and concluded that these opinions expound a "legal rule that lacks any textual basis in the Constitution", and that they possess "logical weakness" as well as "doctrinal incoherence".

He continued that "even if this Court's disfavored treatment of broadcasters under the First Amendment could have been justified at the time of Red Lion and Pacifica, dramatic technological advances have eviscerated the factual assumptions underlying those decisions. Broadcast spectrum is significantly less scarce than it was 40 years ago."

Moreover, "traditional broadcast television and radio are no longer the ``uniquely pervasive´´ media forms they once were. For most consumers, traditional broadcast media programming is now bundled with cable or satellite services. ... Broadcast and other video programming is also widely available over the Internet. ... And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices. ... The extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today."

In This Issue
This issue contains the following items:
 • Supreme Court Again Ducks First Amendment Issue in FCC v. Fox Television
 • FCC to Resume Enforcement of Broadcast Indecency Policy
 • Reaction to Supreme Court Opinion in FCC v. Fox
Washington Tech Calendar
New items are highlighted in red.
Thursday, June 21

The House will meet at 9:00 AM for legislative business. See, Rep. Cantor's schedule.

The Senate will meet at 10:30 AM. It will resume consideration of S 3240 [LOC | WW], a huge bill pertaining to agriculture. It also includes provisions related to rural telecommunications, broadband and telemedicine. See, story titled "Senate to Take Up Farm Bill with Rural Broadband and Telemedicine Provisions" in TLJ Daily E-Mail Alert No. 2,391, June 6, 2012.

10:00 AM. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Visitor Center.

10:00 AM. The Senate Judiciary Committee (SJC) will hold an executive business meeting. The agenda again includes consideration Brian Davis (to be a Judge of the USDC/MDFl). See, notice. The SJC will webcast this hearing. Location: Room 226, Dirksen Building.

10:00 AM. The Senate Finance Committee (SFC) will hold a hearing titled "Russia’s WTO Accession - Administration’s Views on the Implications for the United States". See, notice. Location: Room 215, Dirksen Building.

12:15 - 1:45 PM. The Federal Communications Commission's (FCC) will host an event to discuss FCC Chairman Julius Genachowski's "Mobile Action Plan". The speakers will be Renee Wentzel (Legal Advisor to Genachowski) and John Leibovitz (FCC). Lunch will be served. The Federal Communications Bar Association (FCBA) asserts that this is an event of its Wireless Committee. Location: Wiley Rein, 1776 K St., NW.

1:30 PM. The Senate Judiciary Committee's (SJC) Subcommittee on Antitrust, Competition Policy and Consumer Rights will hold a hearing titled "The Universal Music Group/EMI Merger and the Future of Online Music". The witnesses will be Lucian Grainge (Universal Music Group), Roger Faxon (EMI Group), Irving Azoff (Live Nation Entertainment, Inc. and Front Line Management Group), Edgar Bronfman (Warner Music Group Corp.), Martin Mills (Beggars Group Ltd), and Gigi Sohn (Public Knowledge). The SJC will webcast this hearing. See, notice. Location: Room 226, Dirksen Building.

2:30 PM. The Senate Intelligence Committee (SIC) will hold a closed hearing or mark up titled "Intelligence Matters". See, notice. Location: Room 219, Hart Building.

Friday, June 22

The House will not meet. See, Rep. Cantor's schedule.

The American Intellectual Property Law Association (AIPLA) will host an event titled "AIPLA 4th Annual Trademark Boot Camp". For more information, contact aipla at aipla dot org or call 703-415-0780. Location: Alexandria, VA.

Monday, June 25

Deadline to submit to the Federal Communications Commission (FCC) replies to oppositions to the petitions for reconsideration of the FCC's latest Low Power Radio Service order. The FCC adopted and released this Fourth Report and Order and Third Order on Reconsideration on March 19, 2012. It is FCC 12-29 in MB Docket No. 99-25. See, notice in the Federal Register, Vol. 77, No. 105, Thursday, May 31, 2012, at Page 32075. See also, petition of the Educational Media Foundation, petition of Hope Christian Church of Marlton and others, petition of Corner Media, and petition of Kyle Magrill. And see, story titled "FCC Releases Two Items Regarding Local Community Radio Act" in TLJ Daily E-Mail Alert No. 2,351, March 20, 2012.

Deadline for Facebook to respond to the interrogatories propounded by Rep. Ed Markey (D-MA) and Rep. Joe Barton (R-TX) in their June 4, 2012, letter [3 pages in PDF] regarding Facebook's plans to allow children under 13 to use Facebook. See, story titled "Rep. Markey and Rep. Barton Write Facebook Regarding Plans to Target Children" in TLJ Daily E-Mail Alert No. 2,391, June 6, 2012.

Tuesday, June 26

15th anniversary of the Supreme Court's opinion in Reno v. ACLU, 521 U.S. 844 (1997).

8:00 AM - 5:00 PM. The Department of Commerce's (DOC) National Institute of Standards and Technology (NIST) will host an event titled "National Cybersecurity Center of Excellence Workshop". The deadline to register is 5:00 PM on June 19. See, notice in the Federal Register, Vol. 77, No. 87, Friday, May 4, 2012, at Page 26511-26512. Location: Universities at Shady Grove, 9630 Gudelsky Drive, Rockville, MD.

Wednesday, June 27

10:00 AM. The House Commerce Committee's (HCC) Subcommittee on Communications and Technology (SCT) will hold a hearing titled "The Future of Video". See, notice. Location: Room 2123, Rayburn Building.

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Intellectual Property, Competition and the Internet will hold a hearing titled "International IP Enforcement: Protecting Patents, Trade Secrets and Market Access". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The House Intelligence Committee (HIC) will hold a closed hearing titled "Ongoing Intelligence Activities". See, notice. Location: Room HVC-304, Capitol Visitor Center.

1:00 - 3:15 PM. The DC Bar Association will host a presentation titled "Cloud Computing Transactions Workshop: A Systems Approach to Avoiding Thunderstorms". The speakers will be Ward Classen (Computer Sciences Corporation) and Philip Porter (Hogan Lovells). The price to attend ranges from $89 to $129. Reporters are barred from attending most DC Bar events. CLE credits. See, notice. For more information, call 202-626-3488. Location: DC Bar Conference Center, 1101 K St., NW.

Thursday, June 28

10:00 AM. The House Judiciary Committee's (HJC) Subcommittee on Crime, Terrorism, and Homeland Security will hold a hearing titled "Identity Theft and Income Tax Preparation Fraud". See, notice. Location: Room 2141, Rayburn Building.

10:00 AM. The Senate Commerce Committee (SCC) will hold a hearing titled "A Need for Privacy Protections: Is Industry Self Regulation Adequate?". The witnesses will be Bob Liodice (Association of National Advertisers), Peter Swire (Ohio State University), Berin Szoka (Tech Freedom), and Alex Fowler (Mozilla). Location: Room 253, Russell Building.

FCC to Resume Enforcement of Broadcast Indecency Policy

6/21. The five Commissioners of the Federal Communications Commission (FCC), and key members of Congressional oversight committees, made statements regarding the Supreme Court's June 21, 2012, opinion [23 pages in PDF] in FCC v. Fox Television Stations.

They appear intent on continuing the FCC's indecency based regulation of broadcast speech.

FCC Chairman Julius Genachowski stated in a release that "the FCC will carry out Congress's directive".

FCC Commissioner Mignon Clyburn stated in a release that "Citizens depend on laws that protect their families, and look to both industry and government to ensure that no child is unduly influenced by harmful material before they reach the age of understanding."

FCC Commissioner Jessica Rosenworcel stated in a release that "I will work with my colleagues to help ensure that parents can protect their children from harmful content and that the agency faithfully implements its authority under the law."

FCC Commissioner Robert McDowell stated in a release that "We owe it to the American public and the broadcast licensees involved to carry out our statutory duties with all deliberate speed. I look forward to working with the Chairman, my Commission colleagues and FCC staff to reduce the backlog of indecency cases, along with more than 300 license renewal applications that have remained pending in light of this litigation, as soon as possible."

FCC Commissioner Ajit Pai stated in a release that the opinion "does not call into question the Commission's overall indecency enforcement authority or the constitutionality of the Commission’s current indecency policy."

Sen. John Rockefeller (D-WV), the Chairman of the Senate Commerce Committee (SCC), stated in a release that "I am encouraged by the Supreme Court's decision today to throw out the ruling by the 2nd U.S. Circuit Court of Appeals on regulating broadcast indecency standards."

Sen. Rockefeller said that "The decision leaves in place the FCC's authority to protect children from indecent programming.  This is a victory for those of us who believe that we must be doing more, not less, to give the FCC and parents all across America the resources they need to protect their children from indecent programming."

Rep. Greg Walden (R-OR), the Chairman of the House Commerce Committee's (HCC) Subcommittee on Communications and Technology, used this occasion to tout his bill, HR 3309 [LOC | WW], the "Federal Communications Commission Process Reform Act of 2011". See, story titled "House Passes FCC Process Reform Act" and related stories in TLJ Daily E-Mail Alert No. 2,361, March 30, 2012.

He stated in a release that "once again the need for the FCC to conduct its business through a more transparent and orderly process, allowing for better input and decision-making. How much longer can we allow bad process to produce bad results? The time is now for reform, such as those included in the FCC Reform Act."

Reaction to Supreme Court Opinion in FCC v. Fox

6/21. Technology groups have long argued that the Federal Communications Commission's (FCC) regulation of broadcast speech is inconsistent with the First Amendment free speech clause.

The Center for Democracy and Technology (CDT), Public Knowledge (PK), Tech Freedom (TF), Cato Institute and Electronic Frontier Foundation (EFF) filed an amicus curiae brief in this case in which they argued that "In the modern media environment, the FCC no longer has the constitutional authority to regulate speech under a reduced standard of scrutiny based on FCC v. Pacifica Foundation, 438 U.S. 726 (1978), when the same speech, if communicated by any medium other than broadcast television, would receive full First Amendment protection."

They also argued that "Not only are new technologies changing the way people watch programs, they are changing the way content is controlled by the consumer. Consumers now have unprecedented freedom of choice to avoid exposure to inappropriate content".

After the Supreme Court released its opinion, Emma Llanso, Policy Counsel at the CDT, stated in a release that "Between the Second Circuit's earlier opinion finding that the FCC's indecency policy violated the First Amendment, and Justice Ginsburg and Thomas today raising similar doubts about the policy's constitutionality, the FCC is on notice that the courts are increasingly skeptical of its regulation of broadcast indecency".

She added that "Broadcast has become just one of many ways that people can access media, and user empowerment tools give parents a greater ability than ever before to select content they decide is appropriate for their children. These developments undermine any argument that the FCC's regulation of broadcast indecency is necessary or constitutional under the First Amendment."

Berin Szoka, head of the TF, stated in a release that "For the second time, the Supreme Court has allowed the FCC to continue censoring broadcast television."

He criticized Pacifica, and added that "Today's decision lets stand an odious precedent that will allow the FCC to write censorship rules for the third time. Essentially, the Court has kicked the can down the road to some future court to decide whether some media are less equal than others under the First Amendment."

John Bergmayer of the PK stated in a release that "We have been, and still are, concerned with the First Amendment problems caused by the FCC's current indecency rules. But those problems will have to be addressed another time."

Broadcasters stated that their programming will not change. Dennis Wharton of the National Association of Broadcasters (NAB) stated in a release that the "NAB has long believed that responsible industry self-regulation is preferable to government regulation in areas of programming content. We don't believe that broadcast programming will change as a result of today's decision, given the expectation from viewers, listeners and advertisers that our programming will be less explicit than pay-media platform providers."

He added that "As broadcasters, we will continue to offer programming reflective of the diverse communities we serve, along with program blocking technologies like the V-chip that empower parents in monitoring media consumption habits of children."

Groups that lobby the Congress and FCC for government censorship of indecency are pleased with the Supreme Court's ruling.

For example, Patrick Trueman of Morality in Media stated in a release that "The real import of today's ruling is that the FCC is free to enforce indecency law". He also complained about "the foul language and pornography that is now so common on cable television", which is not subject to the 18 U.S.C. § 1464 regulatory regime.

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