As I noted earlier, the U.S. Supreme Court today handed down a historical First Amendment decision in the case of Federal Communications Commission v. Fox Television Stations. The Court ruled in the FCC’s favor by a 5-4 margin. My initial general thoughts are here. In this piece, I’ll talk a bit more about the majority’s decision in the case.
The most important thing to realize about the Court’s 5-4 decision in FCC v. Fox is that the Court has intentionally dodged all the serious constitutional issues in play here and instead decided the case solely on procedural grounds. “We decline to address the constitutional questions at this time,” the majority says. (p. 26) Writing for the majority, Justice Scalia says:
There is… no basis in the Act or this Court’s opinions for a requirement that all agency change be subjected to more searching review. Although an agency must ordinarily display awareness that it is changing position… and may sometimes need to account for prior fact finding or certain reliance interests created by a prior policy, it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one. It suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change adequately indicates.
Of course, it’s not entirely unusual for the Court to decide important regulatory cases by sticking to administrative law / APA issues, but what’s different in this case is that we’re not talking about the regulation of widgets here. We are talking about the regulation of freedom of speech and expression. Shouldn’t the administrative law analysis change a bit when the issues at stake implicate profound constitutional imperatives? I think so, but the majority doesn’t address that.
Moreover, because they dispense with all constitutional considerations, the majority never gets around to answering how much continuing sense this broadcast speech regulatory regime makes in an age of media and technological convergence. I discussed the illogical “First Amendment Jurisprudential Twilight Zone” that has developed in this field in this essay, this law review article, and a video presentation. Sadly, today’s decision just makes matters more confusing and unfair. After all, those children that the Court thinks the FCC might be protecting with these regulations are currently over on YouTube and Hulu watching all those same shows!
On a related note, the majority also never mentions its recent Internet jurisprudence, which has all gone squarely in favor of robust First Amendment protection for the Net and online speakers. In particular, the “least restrictive means” test that has developed in those cases (i.e., deferring to user self-help tools before allowing state regulation) is completely ignored by the majority in this case. Again, welcome to the jurisprudential Twilight Zone.
Finally, I must address the stunning assertion that Justice Scalia sets forth in the last paragraph of his decision, which is the only one that addresses Pacifica and the constitutional issues at stake here. In that paragraph, Scalia adopts the shocking logic set forth by Solicitor General Gregory Garre during oral arguments for this case. As I pointed out in my summary of the oral arguments, during questioning from the justices, Garre suggested that the government actually had a stronger case today when it regulates broadcast platforms differently than all other forms of media. His reasoning: Precisely because there are so many other unregulated platforms where kids might see or hear objectionable media, it was vital for the government to quarantine one platform and make sure it is safe from objectionable programming. This is an astonishing argument for the government to set forth as a rationale for regulation as it essentially turns the old “scarcity” and “pervasiveness” rationales for regulation on their heads. Back in the old days, we were told broadcasting had to be regulated because it was scarce or because it was pervasive in our lives. Today, by contrast, the government tells us we have to regulate broadcast platforms because of media abundance. In other words, it’s ‘damned if you do, damned if you don’t’ for broadcasters! There is no escape from regulation under this logic.
Amazing, Justice Scalia, endorses this logic in today’s decision:
The Second Circuit believed that children today “likely hear this language far more often from other sources than they did in the 1970’s when the Commission first began sanctioning indecent speech,” and that this cuts against more stringent regulation of broadcasts. Assuming the premise is true (for this point the Second Circuit did not demand empirical evidence) the conclusion does not necessarily follow. The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children. [p. 26]
What is Justice Scalia — a strict constitutionalist — doing endorsing these inventions and reinventions of contorted theories of the First Amendment? It’s bad enough that he is allowing a constitutional abomination like Pacifica to stand, but here we have him rubber-stamping its reinvention by a creative-minded solicitor. This is judicial activism with a vengeance!!
[Next up… I will discuss the very interesting concurring opinion by Justice Thomas.]