January 17, 2012
It’s been 34 years since the Supreme Court heard FCC v. Pacifica Foundation, the landmark ruling that the Federal Communications Commission could constitutionally censor certain kinds of broadcasted speech.
Specifically, the Court ruled that it could determine what constituted indecency and prohibit it.
SCOTUS hasn’t had another case deciding the constitutionality of the FCC’s regulatory power over broadcast channels’ content – until now.
Fox’s (and ABC’s) challenge to the FCC’s regulatory power in Fox isn’t really trying to distinguish itself from Pacifica.
Instead, it’s arguing that Pacifica is outdated in the face of newer, 2004 FCC regulations.
What happened to prompt such changes?
During the 2003 Golden Globe Awards, U2 band member Bono exclaimed, upon receiving an award, “this is really, really, f**king brilliant. Really, really, great.”
After that incident, the FCC changed its regulations to prohibit, for the first time, a single, nonliteral use of an expletive (a “fleeting expletive”).
The high volume of complaints the FCC received following Janet Jackson’s “wardrobe malfunction” during the Super Bowl XXXVIII halftime show led the agency to significantly step up enforcement.
Coupled with Congress’s increasing the maximum FCC fine tenfold (also due to the wardrobe malfunction), the FCC’s new direction on enforcement was causing some unrest among media companies.
However, despite the changes since Pacifica – to the Court’s composition, to the FCC’s regulations, to the media, and to American culture in general – the result of Fox will almost certainly mirror Pacifica.
I can assert this prediction with some confidence because of my reading the oral arguments transcript for Fox, in which many of the Justices all but declared their position on the issue.
As per usual, I’ll start with the easiest Justices to predict.
In this case, they are Scalia and Kennedy.
During oral arguments, Kennedy declared a belief that the broadcast channels regulated by the FCC should stand as “an important symbol for our society that we aspire to a culture that’s not vulgar in — in a very small segment.”
Later, Scalia agreed, saying, “sign me up as supporting Justice Kennedy’s notion that this has a symbolic value…”
Though Justice Thomas is still under his vow of silence, the likeliest scenario is his siding with Kennedy and Scalia on this issue.
Justice Alito didn’t come out as openly on the issue.
Considering how concerned he was that limited the FCC’s authority was going to lead to rampant expletives and nudity, or that the Supreme Court was “intervening” to save a dying medium, it’s very likely he’s going to side with the FCC.
Chief Justice Roberts would have been the hardest of all to predict, if not for one exchange with Fox’s attorney:
After mentioning the FCC’s lack of enforcing the standard of indecency between 1927 and 1975, Roberts replied with, “Well, that’s because broadcasts didn’t commonly have this sort of — these sorts of words or these sorts of images.”
While there is the slight possibility that Roberts was relying on hard facts in making that assertion, the most likely scenario is that his statement reveals a nostalgia for the “good old days” reminiscent of a 1950’s sitcom.
Thus, Roberts will side with the FCC.
As far as the liberals go, Justices Kagan and Ginsburg will do the reverse.
Although certainly scrutinizing both sides’ arguments, Kagan and Ginsburg both, at times, made compelling legal arguments seemingly on behalf of Fox and ABC.
This position also certainly aligns with their respective ideologies as well, so this conclusion shouldn’t leave anyone scratching his head.
With Justice Sotomayor’s recusal, Justice Breyer is the last – and most difficult – to figure out.
In a vacuum, Breyer’s questions seemed to divulge very little of his own personal bias.
Viewed under the lens of his known judicial philosophy, though, the mystery thins, and his position – siding with the broadcasters – becomes clearer.
So, although Fox will certainly be a landmark First Amendment case, it won’t deviate much, if at all, from earlier precedent.
Are the FCC’s standards for indecency on television are too vague to be constitutional?
Lower Court’s Decision
REVERSE 5-3 (Majority: Roberts, Alito, Kennedy, Scalia and Thomas; Dissent: Kagan, Ginsburg, and Breyer; Recuse: Sotomayor).
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