It appears that the long legal saga of the Child Online Protection Act of 1998 (COPA) has finally come to a close. This morning, according to AP, the U.S. Supreme Court rejected the government’s latest request to revive the law, which was stuck down as an unconstitutional violation of the First Amendment by lower courts and never went into effect.

COPA was an effort by Congress to modify the Communications Decency Act of 1996 (CDA) in response to the Supreme Court’s decision in Reno v. ACLU finding that the CDA was unconstitutionally over-broad. COPA sought to narrow the scope of regulation and protect minors from sexual material on the Internet by making it a crime for someone to “knowingly” place materials online that were “harmful to minors.” The law provided an affirmative defense from prosecution, however, to those parties who made a “good faith” effort to “restrict[ ] access by minors to material that is harmful to minors” using credit cards or age verification schemes. Although narrower than the CDA, COPA was immediately challenged and also blocked by lower courts because it was still too sweeping in effect. Moreover, the courts found there were other “less restrictive means” that parents could use to deal with objectionable content — such as Internet filters.

Following the initial challenge, COPA then became the subject of an epic, decade-long legal battle that finally concluded today when the U.S. Supreme Court refused to revisit the law. COPA had already been reviewed by the Supreme Court twice before — in 2002 and 2004.  Thus, a third visit to the Supreme Court by COPA would have been something of a historical development in the world of First Amendment jurisprudence. But with the Supreme Court’s rejection of the government’s appeal today, lower court rulings stand and COPA will remain unconstitutional and unenforceable.

The key recent legal battle occurred in the Third Circuit Court of Appeals, which upheld a lower court ruling striking down COPA. The Third Circuit’s full decision is here. And I penned a 3-part series on the lower court ruling by Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, here, here, and here. Also make sure to check out this summary of COPA’s legal journey that Alex Harris penned last November.

While COPA is now dead and buried, it would be foolish to think this is the end of efforts to legislate on this front. Although it remains unclear what the legislative response will look like during a time of Democratic rule, I am certain that legislation will be floated in short order (i.e., “Son of COPA”) to try to get around the constitutional issues and regulate objectionable online content. If legislators were smart, they’d avoid legally risky solutions like more centralized filtering mandates or age verification requirements. They’d be on safer ground to consider going the subsidy route and finding a way to get parental control tools in the hands of more families and institutions. I’m not saying that I favor such subsidies, merely that such an approach would almostly certainly pass legal muster and probably wouldn’t even be challenged in court. They might also consider more public education / PSA-driven approached to online safety. Those approaches may end up finding more support in a Democratic Congress and administration anyway.

[More coverage at NYT, Reuters, CNet and Ars.]

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:

• Balance of Questioning by Justices: Generally speaking, things did not go as well as I had hoped they would.  The justices asked some tough questions for both counsels, but some of the justices seemed surprisingly deferential to the FCC. When Fox lawyer Carter Phillips rose to speak, for example, he was almost immediately interrupted by a barrage of questions from Justice Scalia and Chief Justice Roberts, who both seemed sympathetic to the FCC’s argument that the agency had taken sufficient steps to justify its change of policy about “fleeting expletives” on TV or radio. Scalia, in particular, was probably the most deferential to the agency throughout the questioning this morning.  Not a good sign for the broadcasters or the First Amendment.

• The Chicken-Egg Debate about What Drives Culture:  Scalia also raised the most hard-nosed questions about the impact of such words on our culture. In terms of the ‘chicken-and-egg’ debate about whether media influences society or media just reflects society, Scalia clearly believes that media drives culture. He suggested that broadcasters had unduly influenced culture.  Again, not good for the broadcasters or free speech advocates, but other justices didn’t say much on this issue.

• The APA & Substantive Constitutional Issues: Souter (joined by Roberts and Scalia) also led a line of questioning about whether Fox was essentially asking for a new test under administrative law that provided less deference to an agency when substantive First Amendment cases where being considered. There have always been sticky admin law / APA-related issues involving agency deference when substantive issues and constitutional rights were at stake.  It will be very interesting to hear what, if anything, the Court has to say about that in this case. But, at least from the tone of the questioning I heard today, the Justices still seem quite deferential to agency decision-making even if free speech issues are in play.  Again, really not good for the broadcasters, but this could tip the opposite direction in the final decision.

• Scarcity v. Abundance as a Regulatory Rationale: There was a very interesting line of questioning raised by Justice Ginsburg that lead to a shocking response from U.S. Solicitor General Gregory Garre. She asked about what impact the Internet and online speech cases has had — or should have — for the case before the court. She stressed how much things had changed since the Court’s Pacifica holding in 1978 and implied that might have some bearing on the matter before the court today. [This was one of the key points I raised in my amicus with CDT, in which we argue that changing technological and marketplace realities have a profound bearing on this case and FCC regulation of speech in general].

Amazingly, Solicitor General 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 rationale” for regulation on its head.  Back in the old days, we were told broadcasting had to be regulated because it was scarce.  Today, by contrast, the government tells us we have to regulate broadcast platforms because of media abundance. Damned if you do, damned if you don’t!

This line of questioning generally helps the broadcasters, but if the Court doesn’t reach the substantive First Amendment issues in its decision, then it’s meaningless.

• Community Standards: On a related note, Justice Ginsburg also asked some sharp questions about the continuing sensibility of the “contemporary community standards” test for broadcast television and radio regulation. She wanted to know how the FCC determines these things and how they surveyed the public to determine what “the community” thought was appropriate for broadcast TV and radio. Solicitor General Garre didn’t really have a good answer, and how could he; this is arbitrary government at its worst. The FCC is asking us to believe that a handful of vocal anti-free speech advocates speak for all Americans when they complain to the FCC about various shows. It’s a farce. Millions of average American viewers just turn off the TV and go to bed happy each night after watching TV; they don’t send in a letter to the FCC saying that they liked what they saw. By contrast, the regulatory advocates bombard the FCC with complaints and then the FCC says that counts as the will of the people.

Anyway, these questions about community standards generally help the broadcasters, but I doubt the court will follow through with this line of reasoning in their final decision. They should, however, because it is silly to think the relevant “community” can be determined just by considering broadcast in isolation.  After all, more and more kids these days are watching video online and via other alternative media distribution platforms.

• The End of Live TV & Radio?: There were several questions from Justices Breyer and Scalia about tape delays and whether broadcasters had the ability to essentially delay all live programming to make sure no dirty words got through.  I thought the justices would have understood why ending live television and radio was a bad idea, but some of them sounded like they were enamored with that notion. Again, very, very troubling for the broadcasters. (Incidentally, during this line of questioning, I found myself thinking how now might be a good time to invest in the tape delay technology business! Seriously, if the FCC wins this case, it may be that every broadcaster in America has to invest in tape delay equipment and rigorously scrub live TV on the fly.  Just think how silly this is in the age of the Internet and instantaneous online video.)

• • –

Again, these are just my initial thoughts. I need to go through the transcript again later and digest everything again before I say anything more.  Overall, however, I am concerned for the First Amendment after this morning’s arguments in the Supreme Court. We could get a close decision in favor of the FCC and the agency’s ongoing effort to expand content controls.

On the other hand, it’s difficult to get a read on some the members of the court. After all, Justices Alito and Thomas didn’t say a peep today, and Justice Kennedy only spoke up once or twice.  And just because some of them asked hostile questions that seemed deferential to the FCC, that doesn’t automatically mean they will ultimately vote in the agency favor in this case.  We’ll just have to wait till next spring or summer to get their final verdict.

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.

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:

• SCOTUS Wiki page for the case
• SCOTUS Blog argument preview
• Adam Liptak, “Must It Always Be About Sex?” New York Times
• William Triplett, “Fox v. FCC heads to Court,”Variety
• David G. Savage, “On the Supreme Court Docket: bleeeeeep,” Los Angeles Times
• Joan Biskupic, “Supreme Court to Hear FCC Appeal over Dirty Words,” USA Today

Along with my friends John Morris and Sophia Cope of the Center for Democracy & Technology, I have just submitted an amicus brief to the Supreme Court in the potentially historic free speech case FCC v. Fox, which will be heard in November.

[Reminder: 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. The full 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.]

The FCC v. Fox case could become the most important First Amendment-related Supreme Court case since FCC v. Pacifica Foundation, which just turned 30 years old last month. Of course, it could be that the Supreme Court simply sticks to the procedural questions regarding whether the FCC moved too far, too fast in reversing it’s long-standing policy of restraint regarding “fleeting expletives.” That’s essentially what the Second Circuit did. On the other hand, the Supremes might reach the substantive First Amendment issues tied up in the Pacifica case. We just won’t know for sure until the case is handed down.

Regardless, in the joint CDT-PFF amicus brief filed today, we argue that the FCC has both gone too far procedurally and that “the time is rapidly approaching for this Court to find that broadcast, like the Internet and other means of mass communication, ‘is entitled to the highest protection from government intrusion’ and that there is no longer a factual ‘basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.'” Citing Reno v. ACLU, 521 U.S. at 863, 870.”

A more detailed summary of our argument follows below. Our brief contends that the “pervasiveness rationale,” which is the basis of the FCC’s authority to regulate broadcast programming, is being challenged by technological convergence, the proliferation of new media platforms, and the widespread availability of parental control technologies. Video content available over broadcast television is available over a variety of other platforms, such as the Internet and mobile devices, and an increasing number of households subscribe to satellite or cable video services. “With broadcast television being just one of the myriad of ways that people can access lawful content (including indecent content), it no longer makes sense from a constitutional or policy perspective to give broadcast speech less First Amendment protection,” we argue.

Parental controls, such as the V-Chip and set-top box controls, allow parents to block content they deem offensive or inappropriate. Better yet, the rise of VCRs, DVD recorders, video on demand, and digital video recorders means that parents can tailor media consumption to their specific needs and values. Those tools are widely available and provide a less restrictive alternative to government regulation. As a result, the FCC can no longer justify broadcast television content censorship on “pervasiveness” grounds. [I have written much more about that point here, here and here.]

Our joint brief also states that complaint data the FCC cites as justification for the expansion of indecency enforcement, has been inflated through accounting changes. These changes in the way the complaints are counted, which were only instituted for indecency complaints, are in violation of the APA. These complaints, mostly generated by a single advocacy group, cannot be a substitute for an analysis of “community standards” and essentially represent a “heckler’s veto” that violates the First Amendment rights of other viewers.

The brief also cites the Commission’s inconsistent analysis of what it deems “indecent” as a violation of both the First Amendment rights of broadcasters and the APA. The inconsistency in what the FCC finds as indecent has a chilling effect on the free expression of content providers and provides inadequate guidance to broadcasters, which is required under FCC statutes.

The CDT-PFF brief can be found online here and I have also embedded the document below via the Scribd reader. [And those interested in this case might also be interested my recent law review article: “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.”]

Incidentally, other briefs that have been filed in the matter can be found here. And, last month, I wrote about how personally troubled I was about the lack of support from liberals who have already filed in this case. See: “Liberals Abandoning the First Amendment, Part 3: The Fox Case.”

I was on NPR’s “On the Media” program this weekend discussing the recent Third Circuit Court of Appeals decision striking down the FCC’s fines in the “Janet Jackson case.” As I noted in this lengthy analysis of the decision, the court said that the agency’s recent efforts to expand the parameters of “indecency” enforcement for broadcast programming went too far, too fast. “[T]he 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 Court held.

“On the Media” host Bob Garfield interviewed me for 5 minutes about the decision and its ramifications. The show can be heard here or you can just read the transcript there. Or you can just listen to it by clicking the button below…

The Federal Communications Commission (FCC) lost another major First Amendment-related case today involving its recent efforts to expand the parameters of “indecency” enforcement for broadcast programming. The case involves the now infamous “wardrobe malfunction” that occurred during an unscripted 2004 Super Bowl halftime performance involving singers Justin Timberlake and Janet Jackson. When Ms. Jackson’s breast was exposed on camera for nine-sixteenths of one second, the FCC immediately launched an investigation into the incident and fines were eventually levied on the grounds that the fleeting exposure of Ms. Jackson’s breast was a violation of broadcast decency standards. CBS challenged the FCC’s decision, leading to a legal showdown in the U.S. Court of Appeals for the Third Circuit.

In today’s decision, CBS Corp. v. FCC, the three-judge panel of the 3rd Circuit ruled that the Federal Communications Commission “acted arbitrarily and capriciously” when it imposed a $550,000 fine on CBS for the incident. The court’s 102-page decision, which can be found here, was decided squarely on procedural grounds. That is, it didn’t touch the more substantive speech-related issues or precedents such as the Pacifica or Red Lion decisions that constitute the foundations of all modern FCC broadcast regulation.

The case is important because it now joins the June 2007 decision handed down by the Second Circuit Court of Appeals in the case of Fox Television Stations v. FCC. That was the indecency case involving the FCC’s new policy for “fleeting expletives.” In that 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 was vacated and remanded to the agency. [And the FCC is now challenging the decision in the Supreme Court.]

This is very similar to what the 3rd Circuit said today in the CBS case. Specifically, the court held that:

Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure. Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS. (p. 14)

The court reached that finding by noting that the agency’s previously “restrained” enforcement policy had changed quite suddenly and dramatically, and without much justification. “[A]n an agency must be afforded great latitude to change its policies, but it must justify its actions by articulating a reasoned analysis behind the change,” the court argued. (pp. 30-31) “The agency’s obligation to supply a reasoned analysis for a policy departure requires an affirmative showing on record.” (p. 32). But the FCC failed in that regard, the court said:

The Commission’s conclusion on the nature and scope of its indecency regime – including its fleeting material policy – is at odds with the history of its actions in regulating indecent broadcasts. In the nearly three decades between the Supreme Court’s ruling in Pacifica and CBS’s broadcast of the Halftime Show, the FCC had never varied its approach to indecency regulation based on the format of broadcasted content. (pp. 36-37)

The FCC was basically arguing that its actions in the Fox and CBS cases were nothing new and that the agency should be allowed to impose significant new penalties for fleeting words or images. But neither the 2nd or 3rd Circuits bought that argument. In today’s decision the 3rd Circuit, for example, the judges held:

In sum, the balance of the evidence weighs heavily against the FCC’s contention that its restrained enforcement policy for fleeting material extended only to fleeting words and not to fleeting images. As detailed, the Commission’s entire regulatory scheme treated broadcasted images and words interchangeably for purposes of determining indecency. Therefore, it follows that the Commission’s exception for fleeting material under that regulatory scheme likewise treated images and words alike. Three decades of FCC action support this conclusion. Accordingly, we find the FCC’s conclusion on this issue, even as an interpretation of its own policies and precedent, “counter to the evidence before the agency” and “so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43. Because the Commission fails to acknowledge that it has changed its policy on fleeting material, it is unable to comply with the requirement under State Farm that an agency supply a reasoned explanation for its departure from prior policy. (pp. 47-48)

As you might have guessed from the context of that passage, the State Farm case referenced by the court dealt with how an agency must reach a decision by examining relevant data and articulating a reasonable explanation for the rational connection between that data and the decision made by the agency. Again, the court today held that the FCC did not pass that test nor the requirements of the Administrative Procedure Act: “Consequentially, the FCC’s new policy of including fleeting images within the scope of actionable indecency is arbitrary and capricious under StateFarm and the Administrative Procedure Act, and therefore invalid as applied to CBS.” (p. 49)

The court also rejected the FCC’s assertion that CBS should be held liable on the common law doctrine of respondeat superior, which allows liability to be imposed on employers for the actions of employees. The question is: Where Timberlake and Jackson CBS employees? The court said no:

it is undisputed that CBS’s actual control over the Halftime Show performances did not extend to all aspects of the performers’ work. The performers, not CBS, provided their own choreography and retained substantial latitude to develop the visual performances that would accompany their songs. Similarly, as the FCC notes, CBS personnel reviewed the performers’ selections of set items and wardrobes, but the performers retained discretion to make those choices in the first instance and provided some of their own materials.

Instead, the court held that Timberlake and Jackson were “independent contractors” for CBS and that the FCC was trying to breathe far too much life into the doctrine:

Under the FCC’s rationale, band members contracted to play a one-song set on a talk show or a “one-show-only” televised concert special presumably would be employees of the broadcaster. These performers – who frequently promote their work through brief contractual relationships with media outlets – would be “employees” of dozens of employers every year.

So, what happens next? It’s likely that the FCC will appeal, just as it has in the 2nd Circuit Fox case. One wonders why the agency doesn’t just throw in the towel. As my boss Ken Ferree, President of PFF, noted in response to today’s decision: “Perhaps it is time to read the handwriting on the wall: the guardians of our First Amendment freedoms in the courts are not going to allow the FCC to play the role of media supernanny. A free and vibrant, even if occasionally coarse, marketplace of speech is the cornerstone of a free society. We allow government to meddle in that marketplace at our peril.”

You will not be surprised to hear that I agree with Ken! And I summarized some additional concerns about the FCC’s expanded activism on this front in a joint amicus brief with the Center for Democracy & Technology to the 3rd Circuit before this case was heard. You can find that filing here.