Supreme Court oral arguments in FCC v. Fox (Background)

by on November 3, 2008 · 23 comments

Supreme CourtTomorrow morning, the U.S. Supreme Court will hear oral arguments in the potentially historic free speech case of Federal Communications Commission v. Fox Television Stations, Inc. I plan on attending and will try to post some thoughts about how the arguments played out here later tomorrow afternoon or evening. [I won't be able to live blog of Twitter it because no electronic devices are allowed in the courtroom, which I've always thought is outrageous.] In the meantime, here again is the background of the case.

The FCC v. Fox case is the indecency case involving the FCC’s new policy for “fleeting expletives.” I wrote about the Second Circuit Court of Appeals decision here and the full 2nd Circuit decision is here. [By contrast, the so-called "Janet Jackson case" -- CBS v. FCC -- took place in the Third Circuit Court of Appeals and that court recently handed down a decision that also went against the FCC. I wrote about the Third Circuit's decision here.]

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.” The decision demonstrates how, over just the past few years, the FCC has arbitrarily thrown out 30+ years worth of precedent and greatly expand the scope of its regulatory authority over speech on broadcast TV and radio. As a result, the FCC’s order was vacated and remanded to the agency. The agency appealed the decision, however, and the Supreme Court accepted it for review.

As I noted back in August, I submitted an amicus brief to the Supreme Court along with my friends John Morris and Sophia Cope of the Center for Democracy & Technology. In that brief, we argued that this case will have profound ramifications for the future of the First Amendment and the regulatory treatment of old and new media platforms alike. It is important that the FCC not be permitted to so casually change its regulatory approach, as it did in the matter before the Court today. The FCC’s new approach has created a confusing and arbitrary regulatory atmosphere that leaves many speakers wondering what they can and cannot say on broadcast television and radio stations today.

It’s also vital that the Court recognize how the FCC is being unduly influenced by a small handful of particular vociferous special interest groups who are artificially inflating the number of indecency complaints and attempting to propagate the myth that they speak for the masses. It is important for the Supreme Court to not allow a small minority to achieve a “heckler’s veto” over content on television or radio.

Finally, it is important that the Supreme Court rein in the FCC in this matter to also ensure the agency does not seek to expand its powers to cover new media platforms. The First Amendment rights of speakers using cable, satellite, and even the Internet, could be at stake here. We live in an age of media and technological convergence and, therefore, it is vital the Court not allow the FCC to engage in a form of regulatory convergence by letting this old regime bleed over into new quarters.

What many of us will be listening for tomorrow during oral arguments is some sort of indication of whether the Court wants to get into the substantive First Amendment issues at stake here, or instead just stick to the procedural (APA) issues that were at the heart of the Second Circuit decision. In particular, a lot of us are wondering whether the Court will get into the the thorny issues and theories set forth in the Court’s controversial 1978 decision of FCC v. Pacifica Foundation.  This summer, upon its 30th anniversary, I penned a 6-part series of essays about the Pacifica decision and the “pervasiveness doctrine.”  It will be very interesting to see if pervasiveness is discussed tomorrow in the questioning by the justices. If it is, that could signal that the court might be willing to get into the substantive First Amendment issues here instead of merely addressing process-related concerns.

If you are interested in reading more opinions about the FCC v. Fox case, I have itemized all the amicus briefs before the court. [I have also blasted some folks on the Left who filed briefs in the case for failing to defend the First Amendment and instead calling upon the court to just defend their sacred regulatory cows (namely, the Red Lion decision and the "scarcity rationale" for FCC regulation of the media marketplace.)] Finally, here are a few additional articles or essays about the case that you might want to check out for basic background, or to see what others are saying:

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