The case is Fox Television, Inc. v. FCC, and it holds the policy violates the First Amendment.
The court concluded that the current policy — which is considerably broader than the one upheld in FCC v. Pacifica Foundation (1978) — is unconstitutionally vague. A few key passages:
[W]hen Judge Leval asked during oral argument if a program about the dangers of pre-marital sex designed for teenagers would be permitted, the most that the FCC’s lawyer could say was “I suspect it would.” With millions of dollars and core First Amendment values at stake, “I suspect” is simply not good enough….The FCC assures us that it will “bend over backwards” to protect editorial judgment, at least in the news context, but such assurances are not sufficient given the record before us. Instead, the FCC should bend over backwards to create a standard that gives broadcasters the notice that is required by the First Amendment….
The court also cited (pp. 29-32) many instances in which broadcasters seem to have been actually deterred from airing items — or covering people and events — by the risk of massive fines, especially massive fines based on fleeting expletives. L.A.’s own Sandra Tsing Loh makes a cameo appearance in footnote 30.
If the Solicitor General asks the Supreme Court to hear the case (as the Bush Administration’s Solicitor General did in the earlier phase of the case, which involved an administrative law challenge to the indecency restrictions rather than a First Amendment challenge), I think the Court will likely say yes. And if that’s so, the Court may revisit the question that Justice Thomas flagged in the previous phase of the case — whether broadcast radio and television should continue to be treated as less constitutionally protected than other media (including cable television and the Internet). Here’s Justice Thomas’s analysis of the question:
I join the Court’s opinion, which, as a matter of administrative law, correctly upholds the Federal Communications Commission’s (FCC) policy with respect to indecent broadcast speech under the Administrative Procedure Act. I write separately, however, to note 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. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969); FCC v. Pacifica Foundation, 438 U.S. 726 (1978). Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity. “The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so” in these cases.
In Red Lion, this Court upheld the so-called “fairness doctrine,” a Government requirement “that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage.” The decision relied heavily on the scarcity of available broadcast frequencies. According to the Court, because broadcast spectrum was so scarce, it “could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacophony of competing voices, none of which could be clearly and predictably heard.” To this end, the Court concluded that the Government should be “permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium.” See also id. (concluding that “as far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused”). Applying this principle, the Court held that “[i]t does not violate the First Amendment to treat licensees given the privilege of using scarce radio frequencies as proxies for the entire community, obligated to give suitable time and attention to matters of great public concern.”
Red Lion specifically declined to answer whether the First Amendment authorized the Government’s “refusal to permit the broadcaster to carry a particular program or to publish his own views[,] … [or] government censorship of a particular program.” But then in Pacifica, this Court rejected a challenge to the FCC’s authority to impose sanctions on the broadcast of indecent material. [R]elying on Red Lion, the Court noted that “broadcasting … has received the most limited First Amendment protection.” The Court also emphasized the “uniquely pervasive presence” of the broadcast media in Americans’ lives and the fact that broadcast programming was “uniquely accessible to children.”
This deep intrusion into the First Amendment rights of broadcasters, which the Court has justified based only on the nature of the medium, is problematic on two levels. First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transitory facts, e.g., the “scarcity of radio frequencies,” Red Lion, to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” In breaching this principle, Red Lion adopted, and Pacifica reaffirmed, a legal rule that lacks any textual basis in the Constitution. Indeed, the logical weakness of Red Lion and Pacifica has been apparent for some time: “It is certainly true that broadcast frequencies are scarce but it is unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media.”
Highlighting the doctrinal incoherence of Red Lion and Pacifica, the Court has declined to apply the lesser standard of First Amendment scrutiny imposed on broadcast speech to federal regulation of telephone dial-in services, cable television programming, and the Internet. “There is no justification for this apparent dichotomy in First Amendment jurisprudence. Whatever the merits of Pacifica when it was issued[,]… it makes no sense now.” The justifications relied on by the Court in Red Lion and Pacifica — “spectrum scarcity, intrusiveness, and accessibility to children — neither distinguish broadcast from cable, nor explain the relaxed application of the principles of the First Amendment to broadcast.” … “It is ironic that streaming video or audio content from a television or radio station would likely receive more constitutional protection than would the same exact content broadcast over-the-air[.”]
Second, 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. As NBC notes, the number of over-the-air broadcast stations grew from 7,411 in 1969, when Red Lion was issued, to 15,273 by the end of 2004. And the trend should continue with broadcast television’s imminent switch from analog to digital transmission, which will allow the FCC to “stack broadcast channels right beside one another along the spectrum, and ultimately utilize significantly less than the 400 MHz of spectrum the analog system absorbs today.”
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.
These dramatic changes in factual circumstances might well support a departure from precedent under the prevailing approach to stare decisis. “In cases involving constitutional issues” that turn on a particular set of factual assumptions, “this Court must, in order to reach sound conclusions, feel free to bring its opinions into agreement with experience and with facts newly ascertained.” For all these reasons, I am open to reconsideration of Red Lion and Pacifica in the proper case.
Alast says:
The opinion finally strikes at the heart of the problem in Pacifica… the morass created by the “context” test that the FCC has complete discretion to abuse. That unfettered discretion was always unworkable, unconstitutional, and should have been discarded a long time ago.
July 13, 2010, 2:58 pmKamal says:
Good! Let’s see if Scalia et all find a way to mess this up too.
July 13, 2010, 3:06 pmJohn Thacker says:
Well, we know from the last time this went to the FCC that Justice Thomas is explicitly sympathetic to the First Amendment claims, and would overrule Red Lion and Pacifica. Justice Stevens went the other way on administrative law, but said he would continue to uphold Red Lion and Pacifica– but with him off when this goes back to the Supreme Court, it could be interesting.
July 13, 2010, 3:12 pmJohn Thacker says:
Too bad they didn’t cite Justice Thomas’s concurring opinion when Fox v. FCC went to the Supreme Court before.
July 13, 2010, 3:13 pmGo Horns! says:
My guess is that SCOTUS overrules Red Lion/Pacifica on the ground that the times have changed. If they were to uphold this opinion on the vagueness challenge it would be hard to distinguish it away in a challenge to an obscenity statute.
July 13, 2010, 3:25 pmScore One For The Good Guys « The 401st Blow :: Thoughts On Media says:
[...] earlier phase of the case that made it to the Supreme Court, definitely visit the always compelling Volokh Conspiracy. Tagged with: FCC, fleeting explicitives, Fox, [...]
July 13, 2010, 3:43 pmcecil kirksey says:
I agree. I just read the latest SCOTUS definition of obscene. Talk about lack of clarity!!! As I read the 2CA opinion about vagueness I could only think about the definition of obscene.. So I think you are correct: the FCC rules being vague will not be the basis for upholding the 2CA if the SCOTUS still wants to regulate what it deems to be obscene. It would be interesting to read the opinion of EV.
July 13, 2010, 3:45 pmAdam Berkowicz says:
It’s disappointing that such a ruling would come as a result of changing times, when in reality Red Lion/Pacifica should be overturned because time is irrelevant to Constitutional interpretation.
July 13, 2010, 4:15 pmGo Horns! says:
I think that a legislature could right a statute to regulate obscenity that is not vague. It would just need to be very specific about what is prohibited. As an example, “the distribution of images depicting deficating in a person’s mouth is prohobited and punishable by up to 5 years’ imprisonment.” Then courts apply the SCOTUS test to determine whether the statute is prohibiting an obscentity. Probably doesn’t need to be that specific to past the vagueness test, but the legislatures trying to use a test for the validity of a law as the law doesn’t give enough clear warning about what is and isn’t prohibited.
July 13, 2010, 4:26 pmDilan Esper says:
It’s disappointing that such a ruling would come as a result of changing times, when in reality Red Lion/Pacifica should be overturned because time is irrelevant to Constitutional interpretation.
And with this we know why Adam Berkowicz will never be on the Supreme Court.
Seriously, if “time is irrelevant to Constitutional interpretation”, than flogging is permitted by the cruel and unusual punishment clause, drug testing and thermal imaging are not searches, and nothing on the internet is protected by the free press clause.
Of course, time is NOT irrelevant to constitutional interpretation.
July 13, 2010, 4:32 pmGo Horns! says:
Unless it is a Terry stop. All snark aside, I think the ease of dissemination was never a valid point. I never understood why children needed to be protected from words that they wouldn’t be allowed to hear as adults because the children needed to be protected from the words (I wish I could take credit for this, but I heard it in a stand-up act).
July 13, 2010, 4:33 pmJohn Thacker says:
Actually, time being relevant to Constitutional interpretation cuts the other way on thermal imaging than how you imply. See Kyllo v. United States. It was those who thought that time was irrelevant who thought that thermal imaging was a search, whereas those who thought that changing technology was relevant thought that it was not a search (because anyone could detect the heat coming off the house.) Those who said that it was a search argued that people at the time of the Fourth Amendment’s adoption as well as now would have not expected their heat escaping their house to be detectable and would have thought it private. Those who said that it was NOT a search said that “time was relevant” and that nowadays people should expect the heat that they emit to be detected.
All the justices seemed to agree that if changing technology made thermal imaging very common and available to the average person, then using it could become no longer a search because it wouldn’t fall into a reasonable expectation of privacy.
Similarly, many who would say that “time is irrelevant” with regards to the Internet would argue that the free press clause applies regardless of the medium. And others who argue that “time is relevant” would argue argue that the free speech clause never envisioned the Internet, so it doesn’t apply.
The sound bite that “time is [ir]relevant” can contain contradictory meanings.
July 13, 2010, 4:40 pmAdam Coates says:
Question: doesn’t this reasoning mean that ultra-wide-band radar and other equipment, if sufficiently common-place, voids any right to privacy that one might have in their bedroom? I.e., we couldn’t “expect” prviacy because technology clearly exists that could violate our privacy? That seems like a strange result, but perhaps I’m missing something (haven’t read that ruling in particular). Care to enlighten?
July 13, 2010, 4:45 pmGabriel Rossman says:
the reductio ad absurdum i like to use in thinking about Red Lion is to recognize that the Miami Herald is printed on paper, much of which comes from trees harvested from publicly-owned and finite in size forests. thus by the logic of Red Lion the court should have ruled for the state of Florida in Tornillo and held that the first amendment doesn’t really apply to newspapers either.
July 13, 2010, 5:19 pmJohn Thacker says:
Yes, it is kind of worrisome. At the same time, none of the justices were really happy with the issue, regardless of which line they fell on.
Justice Stevens brought up that very problem in his dissent– but he at the same time thought that the privacy interest in preventing thermal imagery was “trivial” since it wasn’t the same thing as visual.
The common law in the area basically says that if you don’t go to the minimal trouble to, say, close your blinds, then police officers don’t have to actively avert their eyes. What that means in the sense of heat was debated. It does seem to make sense that people have a higher expectation of privacy against some new technology that they didn’t know existed, but in the long term that doesn’t seem helpful.
July 13, 2010, 5:37 pmDilan Esper says:
Actually, time being relevant to Constitutional interpretation cuts the other way on thermal imaging than how you imply. See Kyllo v. United States. It was those who thought that time was irrelevant who thought that thermal imaging was a search, whereas those who thought that changing technology was relevant thought that it was not a search (because anyone could detect the heat coming off the house.)
That may describe the mindset of the author of the opinion, but there are, in fact, plenty of people who reject originalism and who think that Kyllo is rightly decided.
Further, I would argue that Kyllo is a cheat on originalism, and that Scalia cheats on originalism all the time to get the results he wants. (See, for instance, affirmative action cases, or his explanation of Loving v. Virginia.)
Finally, I was responding to a claim that time is “irrelevant” to constitutional adjudication. I don’t think even originalists claim this. For instance, see Bork’s discussion of libel law and New York Times v. Sullivan.
July 13, 2010, 5:46 pmShelbyC says:
Heh. By that logic, if burglary became very common, it wouldn’t be a search to walk into your house and look in your drawers, because you wouldn’t have a reasonable expectation of privacy there either.
July 13, 2010, 5:48 pmDilan Esper says:
By that logic, if burglary became very common, it wouldn’t be a search to walk into your house and look in your drawers, because you wouldn’t have a reasonable expectation of privacy there either.
The Katz reasonable expectation of privacy test is reminiscent of Churchill’s defense of democracy– it’s the worst system imaginable, except for all the others.
It’s really impossible to figure out what constitutes a “reasonable” search without taking into account what people consider to be private. And that does subject the law to changing mores. But there’s really not any other choice, especially since originalism is a non-starter when it comes to lots of aspects of modern technology.
July 13, 2010, 6:27 pmSteve says:
Sadly, if we start seeing more cussing on TV, we’ll miss out on things like this:
Monkey-fighting snakes: Proof that movies edited for TV are a bad thing (video+)
July 13, 2010, 7:08 pmPeter Gerdes says:
But not one that would otherwise pass constitutional muster. The problem is that in order to qualify as obscenity you have other redeeming value. In other words congress can’t pass a law that would ban news outlets from showing some attention seeker from shitting in the president’s upturned open mouth from an overpass as that would constitute news. Also what if some famous couple was being prosecuted on the basis of a video that they made purportedly showing them defecating in each other’s mouths would the public be unable to view the evidence? What then about a movie depicting these events?
The reason obscenity laws are necessarily vague is they must allow vague exceptions for items that are of political, artistic, etc.. import.
July 13, 2010, 7:33 pmPeter Gerdes says:
The problem isn’t the notion of a reasonable expectation of privacy. It’s a pretty good test. The problem is that the legal term is now only distantly related to what people reasonable view as private (i.e. those things which society judges are appropriate to get particularly upset about people peeking into). In catering to the needs of law enforcement or rigid adherence to the nonsensical third party doctrine the legal notion has lost track of the underlying societal values, e.g., the obvious fact that we judge ourselves to be more violated if our email or private journal is read than if a cabinet in our kitchen is needlessly opened once the police are in our dwelling yet the protections go the other way.
July 13, 2010, 7:50 pmJamieWard says:
I’m sorry, why is it constitutional to ban speech that is obscene? Does the First Amendment exempt obscene speech from our freedom?
July 13, 2010, 8:03 pmAlast says:
Time is irrelevant…. but times are not.
Hanging a horse thief was neither cruel not unusual in 1800. Today it is. This is not because time passes, but because times have changed — “times” being the mores and standards of the society of the time.
July 13, 2010, 8:40 pmRob P says:
Because the Supreme Court said so, and yes.
Miller v. California, 415 U.S. 23.
July 13, 2010, 9:20 pmJohn Thacker says:
So you’re saying that the Supreme Court could suddenly decide that freedom of the press is obsolete because “times are different now?” In a certain sense, of course they could rule that way, and one could argue that they did in the case of Red Lion and Pacifica. But I think it’s a lot easier to interpret the Constitution consistent across all times and taking into account modern technology than people pretend.
July 13, 2010, 10:36 pmmarkm says:
Certainly! But that statute would be obscene.
July 13, 2010, 11:41 pmAdam Berkowicz says:
It’s extremely misleading to label either Scalia or Bork as true originalists.
Furthermore, concerning the idea of “cruel and unusual punishment”, we need not look at what the Founders considered cruel and unusual, but simply what those words meant in the late 18th century. Until the context is updated via the amendment process, the meaning shouldn’t change either.
July 14, 2010, 12:45 amArmando Yunker says:
I enjoyed reading your site, thankyou.
July 14, 2010, 1:12 amDavid Newton says:
With respect to the original meaning etc of words, what I believe should be the proper process to follow is that the meaning of the words at the time when they were put into the constitution should be followed. However the consequences of that meaning can change over time.
When applied to the first amendment this would mean that the meaning of “abridging the freedom of speech” should be the same now as it was when it was ratified in 1791. However the scope of that freedom has changed as new mediums have been invented. Telegraphs, telephone calls and internet communications have come into being since 1791. Since the language of the first amendment is technology-neutral it applies to them just as much as to printed newspapers, letters or any other form of speech in 1791. If on the other hand the first amendment had said “abridging the freedom of speech in books” then it would not be technology-neutral and would be a fundamentally different animal.
The fourth amendment is a much more tricky beast since it explicitly specifies things immune from “unreasonable searches and seizures”. Does email count as “papers”? Does a car count as “effects”? Do different standards apply to “papers” as opposed to “houses”? What a lot of people object to is the the judicial meaning of “unreasonable searches and seizures” has drifted very much outside of every day experience. In that phrase the time-sensitive portion of it is “unreasonable”. The dictionary definition of unreasonable in 1791 should be used and does not change. What changes with time is what comes within that definition of “unreasonable”.
Moving to indecency restrictions declared unconstitutional in Fox Television v FCC we come to the technology neutral nature of the first amendment. Nowhere in the first amendment is there any mention of what speech it applies to: it applies to all speech equally. Consequently restrictions based on whether speech is “commercial” or “non-commercial” or over what medium speech is distributed would seem to be prima facia unconstitutional. With respect to these indecency restrictions this appears to be close to the opinion the court has delivered. It should also be noted that nowhere in the first amendment does it mention about the relative power of those speaking. Consequently any restrictions based on the ability of those to access a medium would not be applicable under the first amendment. However it should be noted that this section is now tempered by the equal protection and due process clauses of the fourteenth amendment which does provide a basis for restrictions on speech where the equal protection of speakers is threatened by an overmighty person or entity or where due process is being threatened by the same.
July 14, 2010, 7:58 amAdam Berkowicz says:
That’s an excellent way of putting it, David. The only thing I would add is that, in the event of technology clashing with the 4th Amendment, or even the 8th Amendment, those things should either be addressed at the state level (as some states still have the option of death by gun line), or, if circumstances warrant, another amendment would be in order.
July 14, 2010, 8:33 amSCOTUSblog » Wednesday round-up says:
[...] SCOTUSblog, NPR, the Wall Street Journal, the New York Times, Constitutional Law Prof Blog, the Volokh Conspiracy, the Washington Post, PrawfsBlawg, First One @ One First, and the L.A. Times – note, the Supreme [...]
July 14, 2010, 9:53 amuh_clem says:
This is a big fucking deal!
/biden
July 14, 2010, 11:02 amCarl Spackler says:
I think the FCC would be better off not pushing this case to the S.ct right now.
But if the case where beofre the court what weight would the court give to the fact that broadcasters obtain a license to use the spectrum. Its much differnt than the internet, newspapers or even cable TV becuase with broadcasters theri medium is owned by the public. In that sense doesnt the public have some right to limit the content? Wouldnt that justify intermediate as opposed to strict scrutiny?
July 14, 2010, 11:17 amAdam Berkowicz says:
One thing to keep in mind is that, despite language that pushes the boundaries of Pacifica, shows like South Park and It’s Always Sunny in Philadelphia continue to bring in solid ratings. This is not to state explicitly that the language used is the sole reason for viewer-ship, but that the words used, such as shit, are much more commonly accessible than they were, perhaps, a generation ago.
July 14, 2010, 11:35 amShelbyC says:
That doesn’t make any sense. Which founders wouldn’t have have considered forcing someone to pee so you can examine its contents a search? Or scanning the inside of their house? And I’m not sure why stuff on the internet would be any less protected than a hand-written letter is under the speech or press clause. Of course, if time is relevant then flogging, or drawing and quartering for that matter, may or may not be permitted depending on what effect some judge determines time has had on the constitution.
July 14, 2010, 11:39 amfalafalafocus says:
Burglary is not a technology.
This whole “time is irrelevant to the interpretation” discussion seems off point. I understood that originalists view time (or “times”, if you prefer) as irrelevant to the interpretation of the text, not that the application of that interpretation is locked in time. In other words, an originalist would view what is a “search” as set based on what the founders believed a search meant, but the court would then need to apply that basic definition of a “search” to a heat sensor, not that a heat sensor is/is not a search because the founders didn’t have such technology.
July 14, 2010, 12:13 pmShelbyC says:
The logic doesn’t require the reason for loosing the expectation of privacy to be a “technology”.
July 14, 2010, 12:41 pmShelbyC says:
July 14, 2010, 12:49 pmDilan Esper says:
So you’re saying that the Supreme Court could suddenly decide that freedom of the press is obsolete because “times are different now?”
No, because eliminating the free press entirely is not permitted by constitutional text.
It is, however, perfectly consistent with constitutional text to hold, for instance, that the rules with respect to Internet journalists are different than those of print journalists. (I am not advocating this, mind you– I am simply saying that just because a constitutional rule changes over time as new issues comes up doesn’t mean the courts have the authority to overturn a constitutional provision entirely.)
July 14, 2010, 2:03 pmDilan Esper says:
That doesn’t make any sense. Which founders wouldn’t have have considered forcing someone to pee so you can examine its contents a search? Or scanning the inside of their house?
This is pure speculation and mindreading, and since the only purported advantage of originalism, which supposedly outweighs all the unjust results it produces in particular cases, is that it constrains the judge, the fact that it forces a judge into speculation and mindreading (and thus allows the judge to import his or her own preferences into the minds of the framers) is a serious objection indeed.
July 14, 2010, 2:05 pmShelbyC says:
Perhaps, but what does the passage of time have to do with that fact? Do you think that if somebody wrote a Constitution yesterday that protected people from unreasonable search and siezure, the analysis would be any different?
July 14, 2010, 2:31 pmOrenWithAnE says:
Indeed. It turns on the reasonable expectation of privacy.
Now, burglary has been forbidden at common law (and every other system of law) since time immemorial. That alone ought to establish beyond any doubt that citizen’s expectation of privacy in their personal affairs is one that society is willing to accept as reasonable.
Quite the opposite, obscenity was never covered in the protected objects in the first instance.
July 14, 2010, 3:58 pmShelbyC says:
And that wouldn’t change if people started committing more burglaries, or if scanning equipment became better.
July 14, 2010, 4:19 pmShelbyC says:
And “reasonable expectation of privacy” is funny anyway. If the cops announced that next week, they’d be searching everybody’s bedrooms, nobody would have an expectation of privacy in their bedroom.
July 14, 2010, 4:21 pmfalafalafocus says:
I’m not sure that is an accurate statement of the law. In any event, Kyllo dealt with technology that was not generally available in the public and held that there was still a reasonable expectation of privacy on that basis. The logical leap you are making about changing standards for what is reasonable in society is more related to Katz than Kyllo.
July 14, 2010, 5:45 pmDilan Esper says:
Perhaps, but what does the passage of time have to do with that fact? Do you think that if somebody wrote a Constitution yesterday that protected people from unreasonable search and siezure, the analysis would be any different?
I think we’d have 200 years less of precedent, traditions, tests, collective understandings, etc., and a different set of debates and initiating circumstances, so yes, it would be quite different.
July 14, 2010, 8:17 pmWednesday round-up | theConstitutional.org says:
[...] SCOTUSblog, NPR, the Wall Street Journal, the New York Times, Constitutional Law Prof Blog, the Volokh Conspiracy, the Washington Post, PrawfsBlawg, First One @ One First, and the L.A. Times – note, the Supreme [...]
July 15, 2010, 1:47 pmBob says:
“Abuse” implies they do it deliberately. You really think the FCC has an agenda when they impose these fines arbitrarily? Nah, they’re just blowing with the wind.
July 18, 2010, 7:03 pm