I’ve been commenting on yesterday’s Supreme Court decision in FCC v. Fox, and criticizing the logic of the majority’s decision the case, which was driven solely by procedural / admin law considerations. [See Part 3.] I also discussed Justice Thomas’s very interesting concurring opinion, which took a serious look at the constitutional issues in play here and signaled his willingness to potentially overturn Red Lion and Pacifica. [See Part 4.] In this fifth installment, I will briefly outline some of the dissenting arguments.
Justice Stephen Breyer penned a lengthy dissent and was joined by Justices Stevens, Souter and Ginsburg. Like the Scalia majority decision, the Breyer dissent also focused on the procedural / APA-related issues at stake in the case. Breyer, however, was not buying the FCC’s assertion that it had adequately justified its significant expansion of indecency enforcement in recent years. Whereas the majority deferred to the agency and found “no basis in the Act or this Court’s opinions for a requirement that all agency change be subjected to more searching review,” the four dissenting justices saw things quite differently. Breyer noted that while the “law grants those in charge of independent administrative agencies broad authority to determine relevant policy,” it “does not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences.” He goes on to appropriately note that:
Federal Communications Commissioners have fixed terms of office; they are not directly responsible to the voters; and they enjoy an independence expressly designed to insulate them, to a degree, from “‘the exercise of political oversight.’” [citations omitted] That insulation helps to secure important governmental objectives, such as the constitutionally related objective of maintaining broadcast regulation that does not bend too readily before the political winds. But that agency’s comparative freedom from ballot-box control makes it all the more important that courts review its decision making to assure compliance with applicable provisions of the law — including law requiring that major policy decisions be based upon articulable reasons.
Breyer goes on to restate much of what is already clear from the APA and all that surrounds it. “[A]n agency must act consistently. The agency must follow its own rules,” he notes. Moreover:
“The law has also recognized that it is not so much a particular set of substantive commands but rather it is a process, a process of learning through reasoned argument, that is the antithesis of the “arbitrary.” This means agencies must follow a “logical and rational” decisionmaking “process.”
Finally, while admitting that agencies have generally been granted “generous leeway” to establish new policies, “this leeway is not absolute,” Breyer notes. Breyer then finds that the FCC did not measure up to these standards when crafting and announcing changes to its indecency enforcement policies. I will spare you all the details which you can read for yourself, but I think Breyer makes a very solid case that that the agency over-stepped its bounds and acted in a way that was “arbitrary, capricious, [and] an abuse of discretion.” Alas, Breyer could not find one more vote to make that the majority holding in this case.
Incidentally, in separate dissents, Justices Ginsburg and Stevens had some feisty things to say about the FCC’s actions and the majority decision. Justice Ginsburg appropriately noted that “there is no way to hide the long shadow the First Amendment casts over what the Commission has done. Today’s decision does nothing to diminish that shadow.” On the question of the continuing wisdom of the Pacifica decision, which Justice Thomas hinted he was ready to revisit and potentially overturn, Justice Ginsburg had this to say:
The Pacifica decision, however it might fare on reassessment, was tightly cabined, and for good reason. In dissent, Justice Brennan observed that the Government should take care before enjoining the broadcast of words or expressions spoken by many “in our land of cultural pluralism.” 438 U. S., at 775. That comment, fitting in the 1970’s, is even more potent today. If the reserved constitutional question reaches this Court, see ante, at 26 (majority opinion), we should be mindful that words unpalatable to some may be “commonplace” for others, “the stuff of everyday conversations.” 438 U. S., at 776 (Brennan, J., dissenting).
What a strange world we live in when Justices Ginsburg and Thomas are jointly leading a First Amendment revolution!
Finally, in his separate dissent, Justice Stevens argued that, “The FCC’s shifting and impermissibly vague indecency policy only imperils these broadcasters and muddles the regulatory landscape. It therefore makes eminent sense to require the Commission to justify why its prior policy is no longer sound before allowing it to change course.” He goes on to discuss semantic issues and the dangers of allowing the government to regulate speech and determine the context in which it is appropriate and when it is not. It makes for some very entertaining reading that you just don’t see every day in a Supreme Court decision. He states:
There is a critical distinction between the use of an expletive to describe a sexual or excretory function and the use of such a word for an entirely different purpose, such as to express an emotion. One rests at the core of indecency; the other stands miles apart. As any golfer who has watched his partner shank a short approach knows, it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent. But that is the absurdity the FCC has embraced in its new approach to indecency.
Having spent many frustrating hours on the links attempting to master the (inappropriately-named) “gentleman’s game,” I can vouch for the level of vulgarity uttered during seemingly all moments of play, and I certainly can’t remember anyone thinking that sexual or excretory functions where the subject of discussion. Anyway, Justice Stevens goes on to conclude that:
Even if the words that concern the Court in this case sometimes retain their sexual or excretory meaning, there are surely countless instances in which they are used in a manner unrelated to their origin. These words may not be polite, but that does not mean they are necessarily “indecent” under §1464. By improperly equating the two, the Commission has adopted an interpretation of “indecency” that bears no resemblance to what Pacifica contemplated. Most distressingly, the Commission appears to be entirely unaware of this fact, see Remand Order, 21 FCC Rcd., at 13308 (erroneously referencing Pacifica in support of its new policy), and today’s majority seems untroubled by this significant oversight. Because the FCC has failed to demonstrate an awareness that it has ventured far beyond Pacifica’s reading of §1464, its policy choice must be declared arbitrary and set aside as unlawful.
Again, regrettably, this logic did not carry the day.