The FCC got a wake-up call yesterday in the Second Circuit Court of Appeals in New York City. The agency was there in court defending its recent actions in various indecency enforcement cases against Fox Television. Specifically, the question at hand was whether of not the use of a fleeting explicative should be categorically barred from the airwaves and punishable by massive fines if they are uttered. (You can find the video of the trial on C-Span’s website).
The 3-judge panel showed very little patience with the FCC and asked some sharp questions about its stepped-up crusade to regulate broadcast speech. (The case is Fox Television v. FCC and, as I mentioned here before, I filed a joint amicus brief in the case along with my friends at the Center for Democracy and Technology.)
Before a packed courtroom, FCC attorney Eric Miller was grilled by Second Circuit Judges Rosemary Pooler, Pierre Leval and Peter Hall on numerous issues. Here are a few highlights:
* Judge Hall asked Miller if the threat of FCC fines has become “a sword of Damocles hanging over the heads [of broadcasters]” since the rules seem quite vague and are applied in an arbitrary fashion. When Miller suggested that broadcasters have been given plenty of guidance regarding what the FCC believes is indecent, Hall and the other judges didn’t seem to be buying it. Judge Leval also asked why the FCC just doesn’t have broadcasters pre-screen shows with the Commission before airing them to see if they are OK. The FCC’s Miller responded that the FCC can’t do that since it would likely constitute “prior restraint,” a clear no-no in First Amendment law. But Judge Leval shot back: “What’s the difference between that and a system of ‘You guessed wrong – - gotcha!” It was an excellent question and Miller didn’t really have a good response. Judges Hall and Pooler followed up on this point and wonder just how objective and clear the FCC’s rules really were. Judge Pooler said “This seems to be a scheme that depends on what [the FCC commissioners] think” and not “objective criteria.” Miller responded that the FCC interacts with the public and various groups in making these determinations.
* At different points during the questioning, all three judges asked whether technological change – - namely, the rise of so many cable and satellite households over the past two decades, as well as the rise of the Internet – - has any bearing on this case. Judge Leval noted that “There are all these other zones that are unregulated” and yet broadcasting is treated differently. Perhaps, Judge Leval wondered aloud, the FCC is essentially trying to convert broadcast television into a sanitized zone where viewers could expect different rules to apply at all times. But as Fox’s legal counsel Carter Phillips pointed out in response, that raises some serious constitutional issues. Moreover, Phillips argued “from a viewer’s perspective there is no difference” between broadcasting and many of these new competing technologies.
* On a related note, Miller tried to make his case by stressing that broadcasting was still a “uniquely pervasive” force in our society and that kids are particularly vulnerable to unexpected broadcasts of an objectionable nature. The judges really went off on this point. Judge Pooler pointed out that “if [kids] lived in a bubble” the FCC’s argument about shielding them from unexpected encounters might make more sense. But because children likely unexpectedly experience many of the same words in the real world every day, it’s harder for the FCC to justify its actions.
In a particularly sharp exchange with Miller, Judge Pooler also pointed out that when so many parents allow there kids to have TVs and other media devices in their bedrooms, we should assume that those parents have implicitly accepted some level of risk and that it is their responsibility – - not the government’s – - to deal with objectionable material after that. “Parents could get the TV out of the bedroom” instead of having the FCC “galloping to the rescue” she argued. Pooler went so far as to ask Miller: “Do you see a limit to what [the FCC] can do to protect children in our society?” Miller responded that, in implementing the original indecency prohibitions, Congress has already made that choice for us in favor of FCC intervention. But, the judges responded at various point, beyond taking TVs out of bedrooms, parents also have various parental control tools at their disposal to help screen material, such as the V-Chip. Miller quickly responded (as the FCC had argued in its filing before the court) that the V-Chip is a failure and cannot be relied upon as an alternative to government censorship. Judge Pooler got pretty hot about this point and asked Miller why the FCC had not issued a single study in the last six years saying that the V-Chip was a failure to put the broadcasters on fair notice that they’d need to find alternative ways of dealing with objectionable content, including self-censorship. Again, Miller did not really have a good answer for the Court.
* There was also an extensive exchange between the judges and Miller about what qualified as “news” in the eyes of FCC regulators. The question was important because some of the programs that the FCC has sought to regulate in recent years have been news-related programs. The FCC’s Miller said there was no special exemption for news programs from the FCC’s indecency rules, but that the agency did attempt to tread cautiously when regulating speech in that context. But the judges were unpersuaded and one of them even asked what the FCC would do if a broadcaster simply claimed that all its shows were “news programs” in the hope of avoiding FCC regs or fines. Miller said that a broadcaster can’t simply slap the “news” label on anything and expect to get a free pass. But the judges then pointed out that this left the FCC in a position where they would increasingly be the arbiters of what constituted “news” in our society. And that’s a little troubling.
In sum, it was a bad day in court for the FCC. The consensus outside the courtroom after the oral arguments seemed to be that the FCC was in real trouble. It will likely take the court a few months to hand down its opinion, but when it does I expect it will be a slam-dunk in favor of the broadcasters and against the FCC.