The potentially momentous case of Federal Communications Commission v. Fox Television ended on June 21 not with a bang but a whimper. True, a unanimous Supreme Court vacated the FCC’s rulings that the “fleeting expletives” in two TV programs and the fleeting nudity in a third were “indecent.” But it did so on the narrow ground that the agency violated the due process rights of the networks by failing to give them fair notice of its new, harsher censorship policies, and it refused to address the First Amendment issues at the heart of the case.
Only Justice Ruth Bader Ginsburg, in a concurring opinion, would have reached the constitutional issue: whether the FCC’s longstanding, shifting, unpredictable, vague, and often discriminatory regime of censoring constitutionally protected expression on the airwaves violates the First Amendment.
There was ample evidence in the case of discriminatory enforcement and of the overall chilling effect of the FCC’s vague policy, especially on nonprofit and community stations that broadcast valuable, cutting-edge art and documentary programming but must self-censor because they cannot afford even one of the agency’s massive fines. Moreover, the 1978 Supreme Court precedent from which the agency’s anomalous power to punished constitutionally protected speech on the airwaves derives – the notorious case of FCC v. Pacifica – rested on a rationale that was weak when it was announced and, as Justice Ginsburg suggested, is flatly untenable today: the “uniquely pervasive” nature of broadcasting and its “unique accessibility” to children.
Why, then, did the Supreme Court refuse to reach the real issue: the dubious validity of Pacifica in light of a vastly changed media landscape, and the unconstitutionality not only of the FCC’s recent rule against fleeting expletives but of its indecency enforcement over the past 34 years? Why did it decide not to decide?
Fans of judicial restraint might explain it by citing the familiar rule, relied on by Justice Anthony Kennedy in his opinion, that the Court’s “normal practice” is to decide cases on narrow grounds and “decline to decide cases not before it.” But here, the question of the indecency regime’s constitutionality was fully before the Court. Besides, this Supreme Court has been remarkably activist, particularly in First Amendment cases. One need only recall the way it reached way beyond the issues it needed to decide in Citizens United v. Federal Election Commission to open the door to unlimited electoral campaign spending by for-profit corporations.
Undoubtedly, the strategy of the two attorneys who argued for the networks played a role. Both of them urged the Court not necessarily to get rid of FCC censorship, but merely to make it less vague and arbitrary. One of them asserted, inexplicably, that the system “worked perfectly fine” until 2004; the other offered suggestions for changing the rules so that broadcasters could know what to censor. But even they are probably disappointed in the narrow win they achieved: the Court did not even say that the new fleeting expletives rule, as applied, was unconstitutionally vague – only that the networks were not on notice of the impending rule change at the time that the two fleeting expletives – uttered by Cher and Nicole Richie at Billboard Award events – were broadcast.
Perhaps in this politically sensitive area, the justices wanted to defer to the executive branch, anticipating that the FCC itself might mends it ways, revoke the fleeting expletives rule, and return to a less aggressive policy of censorship, or none at all. If so, it was an abdication of judicial responsibility. Given the pressures brought to bear on the FCC to ramp up enforcement in the 34 years since Pacifica and the highly charged symbolic power of this “family values” issue, the political branches of government are the least likely to adhere to constitutional standards. That’s when the role of the courts is crucial.
If one is prone to reading tea leaves, one can find in Justice Kennedy’s brief opinion hints that the FCC may ultimately have a hard time defending nearly any indecency policy against a subsequent First Amendment challenge. He notes twice that the Pacifica decision was exceedingly narrow, and emphasizes the particular importance of fair notice when First Amendment rights are at stake. Why, then, did he not come out and say that at the very least, the fleeting expletives rule is unconstitutional?
The fact is that a majority of the justices were almost surely unwilling to agree to this positiion, no less to overturn Pacifica. Their views were evident at oral argument, with Chief Justice John Roberts and Justice Antonin Scalia expressing the most explicit hostility to the First Amendment claims. Apart from Justice Ginsburg, only Justice Elena Kagan signaled support for the First Amendment challenge. Justice Sonia Sotomayor might have voted with them, but she recused herself. Justice Breyer is squishy on the First Amendment when it comes to social policy arguments for shielding minors from potentially inappropriate material. And Justice Kennedy, as his opinion demonstrated, is oddly squeamish about the common four-letter words that were at the heart of the Fox case: he wrote “f***” and “s***” instead of straightforwardly describing what was said. It was a sad retrogression from the Court’s franker approach 40 years ago in the famous case of Cohen v. California, affirming a person’s right to wear a jacket with the message “Fuck the Draft.” As the law professor and Huffington Post blogger Geoffrey Stone pointed out:
Lawyers and judges deal with the real world. They deal with murder and greed and rape; they deal with enhanced interrogation and brutality and gruesome wounds; they even deal [with] vaginas (unlike some legislators these days). It is their responsibility as professionals to deal in a mature and straightforward manner with all sorts of unpleasantness. … Especially in a First Amendment case, lawyers and judges have to be willing to say the words out loud, even if it makes them uncomfortable. To do otherwise is to deny the realities of the case before them. It is to put their own sensitivities above their obligations to their clients and to the law. It is, in short, unprofessional.*
It is also a disservice to the producers, directors, writers, performers, presenters, and audiences on broadcast television and radio.
Update: On June 29, in the course of refusing to consider the FCC’s appeal from a Third Circuit decision vacating its punishment of CBS-TV for the Janet Jackson Super Bowl “wardrobe malfunction,” Chief Justice John Roberts warned that “it is now clear that the brevity of an indecent broadcast – be it word or image – cannot immunize it from FCC censure. … Any future ‘wardrobe malfunctions’ will not be protected on the ground relied on by the court below.” Roberts was thus signaling that in his view, the FCC’s strict new rules against “fleeting indecency” are constitutional. See “Court Strikes Down Penalty for ‘Nipplegate.”
*This article previously appeared on the Free Expression Policy Project, which existed from 2000-2017.
For background on the earlier stages of the case, including the Supreme Court argument, and on the FCC’s long history of arbitrary enforcement, see:
Justices Are Split on Broadcast “Indecency”
FCC’s Censorship of “Indecency” is Unconstitutional
What is the Fuss About Janet Jackson’s Breast?,
A Huge Victory for Free Speech on the Airwaves
Supreme Court Blushes at Those “S-words” and “F-words
and the friend-of-the-court brief submitted to the Supreme Court in an earlier stage of the case on behalf of the ACLU, the Directors Guild, and ten other groups.
On Citizens United, see “A Win for Free Speech or a First Amendment Disaster?”
* “Geoffrey Stone, “What the F***?” See also, to the same effect, Adam Liptak, “A Word Often Heard, Except at the Supreme Court.”