The Second Circuit Court of Appeals handed down an important 53-page decision today in the case of Fox Television Stations v. Federal Communications Commission. This was the indecency case involving the FCC’s new policy for “fleeting expletives.” [The "Janet Jackson case" is taking place in the 3rd Circuit Court of Appeals and oral arguments will be held in September.]
In a 2-1 decision, the Second Circuit ruled that “the FCC’s new policy sanctioning “fleeting expletives” is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy.” As a result, the FCC’s order is vacated and remanded to the agency. Specifically, the Court held:
We find that the FCC’s new policy regarding “fleeting expletives” represents a significant departure from positions previously taken by the agency and relied on by the broadcast industry. We further find that the FCC has failed to articulate a reasoned basis for this change in policy. Accordingly, we hold that the FCC’s new policy regarding “fleeting expletives” is arbitrary and capricious under the Administrative Procedure Act.
The decision goes on to demonstrate how, over just the last few years, the FCC has arbitrarily thrown out 30+ years worth of precedent on this front in order to greatly expand the scope of its regulatory authority over speech on broadcast TV and radio.
While the decision was reached solely on the procedural issues at hand, the Court had some very important things to say about the First Amendment-related concerns that were raised by the networks and the other groups and individuals who filed in the case. I filed a joint amicus brief in the case along with John Morris and Sophia Cope of the Center for Democracy & Technology. And, as I explain below, I was happy to see that many of our concerns were taken seriously by the court when discussing the free speech implications of this case.
The Court begins its constitutional analysis on pg. 31 of the ruling by noting that, “As an initial matter, we note that all speech covered by the FCC’s indecency policy is fully protected by the First Amendment.” They continue [and I have highlighted the important points here]:
With that backdrop in mind, we question whether the FCC’s indecency test can survive First Amendment scrutiny. For instance, we are sympathetic to the Networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague….
We can understand why the Networks argue that FCC’s “patently offensive as measured by contemporary community standards” indecency test coupled with its “artistic necessity” exception fails to provide the clarity required by the Constitution, creates an undue chilling effect on free speech, and requires broadcasters to “steer far wider of the unlawful zone,” Speiser v. Randall, 357 U.S. 513, 526 (1958).
That’s pretty strongly worded stuff, but wait, it gets better. Much better. In our joint amicus brief, one of the things that the scholars at CDT and I had asked the Court to do in this case is to consider the importance of recent holdings in Internet and cable industry-related decisions. And that’s exactly what the Court did next:
The Networks’ position is further buttressed by the Supreme Court’s decision in Reno v. ACLU, 521 U.S. 844 (1997), which struck down as unconstitutionally vague a similarly-worded indecency regulation of the Internet. The Court found that the statute’s use of the “general, undefined terms ‘indecent’ and ‘patently offensive’ cover large amounts of nonpornographic material with serious educational or other value. Moreover, the ‘community standards’ criterion as applied to the Internet means that any communication available to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.” Id. at 877-78. Because of the “vague contours” of the regulation, the Court held that “it unquestionably silences some speakers whose messages would be entitled to constitutional protection,” and thus violated the First Amendment. Id. at 874. Because Reno holds that a regulation that covers speech that “in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs” is unconstitutionally vague, we are skeptical that the FCC’s identically-worded indecency test could nevertheless provide the requisite clarity to withstand constitutional scrutiny. Indeed, we are hard pressed to imagine a regime that is more vague than one that relies entirely on consideration of the otherwise unspecified “context” of a broadcast indecency.
But what of the famous argument in the 1978 Pacifica case, that broadcasting is “uniquely pervasive” in society and “uniquely accessible to children.” Echoing what the joint CDT-PFF amicus brief had argued, the Court said:
we would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children, and at some point in the future, strict scrutiny may properly apply in the context of regulating broadcast television. In light of this possibility, the Networks rightly rest their constitutional argument in part on the holding of [United States v. Playboy Entertainment Group], which involved a challenge to a statute requiring cable operators who provide channels primarily dedicated to sexually explicit or otherwise indecent programming to either fully scramble these channels or limit their transmission to the 10pm to 6am safe harbor period. 529 U.S. at 806. The Supreme Court, applying strict scrutiny, invalidated the statute because a less restrictive alternative to the prohibition existed: “One plausible, less restrictive alternative could be found in another section of the [Telecommunications] Act [of 1996]: § 504, which requires a cable operator, ‘upon request by a cable service subscriber . . . without charge, [to] fully scramble or otherwise fully block’ any channel the subscriber does not wish to receive.” Id. at 809-10.
The Court held: This “targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests.” Id. at 815. In so holding, the Court suggested its decision might go beyond the mechanistic application of strict scrutiny, and rely in part on a notional pillar of free speech–namely, choice… The Court specifically rejected the arguments that parents’ ignorance of this option, its underutilization, or its inability to be 100% effective rendered targeted blocking an ineffective alternative: “It is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.” Id. at 824.
The proliferation of satellite and cable television channels–not to mention internet-based video outlets–has begun to erode the “uniqueness” of broadcast media, while at the same time, blocking technologies such as the V-chip have empowered viewers to make their own choices about what they do, and do not, want to see on television. If the Playboy decision is any guide, technological advances may obviate the constitutional legitimacy of the FCC’s robust oversight.
Folks, that is some really strong stuff. What the Second Circuit is basically telling the FCC is that, if the agency chooses to push this case further and the First Amendment issues are teed up, the agency is potentially going to lose all its authority to regulate in this area.
It’s unclear what the FCC will do now in light of this. They could try to appeal and just make the case that its actions have not been arbitrary and capricious, but the Second Circuit laid out dozens of pages of evidence to the contrary. So, it would be a major uphill fight for the agency if they went that route. Plus, if the next ruling dealt more squarely with the First Amendment issues at stake, then the entire regulatory house of cards that the FCC has constructed might come crashing down.