Second Circuit Strikes Down FCC’s Current Indecency Restrictions

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.