Supreme Court oral arguments in FCC v. Fox (General Thoughts)

by on November 4, 2008 · 28 comments

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.

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