ABC/Fox Indecency Case Seen Bolstered by Supreme Court’s First Amendment Rulings

The 1978 Pacifica ruling barring the broadcast of any of seven curse words during the daytime and evening is in play, constitutional law professors said. They said the justices may not address what level of regulatory scrutiny the FCC’s policy of censuring broadcasters for airing a single curse word or brief nudity goes to. If the issue of scrutiny doesn’t come up during oral argument, the professors said that will signal the justices are inclined to revisit the Pacifica case entirely and not issue a ruling only on the merits of the ABC’s NYPD Blue and Fox’s Billboard Music Award shows. Spokespeople for the commission and the two networks had no comment.

June’s rulings in the Brown v. Entertainment Merchants Association videogames case (CD June 28 p14) and Sorrell v. IMS Health don’t involve broadcasters, which under Pacifica and other Supreme Court rulings have been afforded less First Amendment protection than other media. So it’s hard to read too much into those cases, the constitutional law professors said. What Brown and Sorrell show is the overall predisposition of both liberal and conservative justices on the high court to rule in favor of free speech, they said. The 8-1 decision this year letting anti-gay activists picket military funerals also demonstrates the court’s leanings on First Amendment issues, said Harvard Law School Professor Mark Tushnet.

A lawyer for an indecency foe that plans to side with the FCC in the ABC/Fox case acknowledged the court may find in favor of the networks. The justices may nonetheless try to find a way to let the agency continue to regulate indecency, said Robert Sparks, representing the Parents TV Council. A First Amendment lawyer who accurately predicted the outcome of the first Fox case, when the high court in 2009 sided with the FCC on administrative law grounds, said Brown portends a ruling in favor of that network and ABC this time around. “Brown was a very strong First Amendment decision: Five members of the court were very skeptical of anything other than very precise drafting of any restrictions on freedom of speech,” said Kevin Goldberg of Fletcher Heald, a law firm with many broadcast clients. “That certainly is going to come into play here, and they've been moving that way for the last few years,” so “this is not a great First Amendment court from the FCC’s perspective,” he added. “I don’t think the FCC feels any better after Brown."

"It’s hard to predict the weather, but these are certainly dark clouds on the horizon,” said Sparks. It was hard to see why the justices heard Brown, because the case had been upheld by the 9th U.S. Court of Appeals, he said. “Still, they must have had a purpose, and the purpose probably suggests that they are taking a pretty strict view in the First Amendment area,” and “the broadcasters are certainly cheered by Brown,” said the appellate lawyer. “They can argue that regulation of broadcast indecency must be measured under ’strict scrutiny.'” It’s still hard to see the Supreme Court making the indecency statute “toothless,” he said. “I think they're going to try to find a way to regulate indecency, not throw it out the window."

"The level of scrutiny will turn on whether the broadcast medium is a special medium or not” in the indecency case, said Tushnet. “Going in, the broadcasters have the upper hand.” Much of the outcome in ABC/Fox depends on how much the justices there “adhere to the notion that the broadcast media is different from other forms of media because of the old scarcity rationale, which I assume is going to be put under some pressure in the case,” the professor said. “A strong majority thinks the First Amendment imposes very substantial limitations on government power” -- at least outside the context of broadcast programming, he said. “If you are willing to protect a funeral protest in Snyder v. Phelps and the violent videogames in Brown, it’s really hard to see how you could possibly avoid” ruling against the government’s ability to regulate fleeting expletives, Tushnet said.

Brown used strict scrutiny of regulation to strike down California’s videogame sales law, but “on the other hand, the court has treated television and radio differently and also has treated sexual speech over these media differently,” said Dean Erwin Chemerinsky of the University of California at Irvine’s law school. There’s also one less justice who might have voted to throw out FCC indecency policy because Sonia Sotomayor recused herself from the case for unspecified reasons, said Professor Eugene Volokh of the UCLA Law School. A Supreme Court spokeswoman declined to comment on the recusal. On the court overall, “it seems pretty clear there is some sentiment to go back on Pacifica, not to broaden it,” Volokh said.

The FCC seeks to define as indecent one curse word, versus the repeated swearing heard on the radio during George Carlin’s comic stand-up routine that was the subject of the Pacifica decision, Volokh said. The justices may consider ABC/Fox to amount to a “vaguer restriction” on speech that “wouldn’t be applied to the logic of the broadcasts under Pacifica,” he said. “And I think there is going to be at least some sentiment on the court for rejecting Pacifica.” Recent Supreme Court decisions show the justices take “a pretty broad view of free speech,” Volokh said. “There is a pretty good chance that the court is going to side with Fox and ABC here,” he added: The question is “whether they are going to side on a narrow basis” or on “a broader basis and just say Pacifica is wrong and needs to be reversed.”