So, while the rest of you are still watching your Saturday morning cartoons this weekend, I’ll be working hard to defend the First Amendment at the Federal Society’s 2008 “National Lawyers Convention.” I am speaking on a panel there on Saturday morning entitled “The FCC and the First Amendment” and will be going up against Federal Communications Commission Chairman Kevin Martin and Gregory Garre, the Solicitor General of the United States. The primary focus of our discussion will be the FCC v. Fox case that was recently heard by the Supreme Court. It should be an interesting conversation.
It looks like registration for the event is now closed, but I’ll try to blog about it afterwords. Not sure if they are taping it or not, but if I find a video or transcript I’ll post it later.
“The FCC and the First Amendment”
Saturday, November 22nd / 10:45 a.m. – 12:15 p.m. / East Room
- Mr. Miguel A. Estrada, Gibson, Dunn & Crutcher, and Former Assistant to the United States Solicitior General
- Hon. Gregory G. Garre, United States Solicitor General
- Hon. Kevin J. Martin, Federal Communications Commission
- Mr. Adam D. Thierer, The Progress and Freedom Foundation
- Moderator: Hon. Brett M. Kavanaugh, United States Court of Appeals, District of Columbia
Today was a big day — and not just because there was an election going on! As I mentioned yesterday, the other big news was that the U.S. Supreme Court was hearing oral arguments in the potentially historic free speech case of Federal Communications Commission v. Fox Television Stations, Inc. Again, all the background you need can be found in my post yesterday, so here I will just be summarizing my general thoughts about how the oral arguments played out this morning.
Unfortunately, because no electronic devices or even notepads are allowed in the courtroom, much of what I am relaying here is from memory or from the notes that I surreptitiously scribbled on a tiny piece of scrap paper when the guards weren’t looking. (And yes, I have been reprimanded before for taking notes in the Court!) The transcript has just been released, however, so you can read it through and judge for yourself. Anyway, here are some general thoughts:
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Tomorrow 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.
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