Supreme Court Seen as Overturning FCC’s ‘Fleeting’ Indecency Policy
The Supreme Court is increasingly seen as likely to side with broadcasters and rule against the government by striking down the FCC’s censuring of broadcasts with fleeting expletives or brief nudity, industry lawyers specializing in the First Amendment said Tuesday. They said last term’s rulings in cases touching on violent videogames in Brown, access to data in IMS Health and allowing a funeral protest in Snyder all show a court generally inclined to side with First Amendment petitioners. Panelists spoke at an event at the MPAA that was organized by the Media Institute.
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Some speakers noted it’s hard to discern a coordinated direction the court is headed on free speech. “They're more like an amoeba, with nine different parts going off,” Lee Levine of Levine Sullivan said of the justices. First Amendment scholars not allied with either side had said recent rulings bode well for ABC/Fox (CD July 6 p4).
There hadn’t been much First Amendment “jurisprudence in recent years,” said moderator Bruce Sanford of Baker Hostetler. “But not any longer. We have some boffo material,” with Janet Jackson’s breast “and a little nudity” in the upcoming term, he said of the consolidated ABC and Fox case the high court will hear oral argument on. Bob Corn-Revere of Davis Wright, participating in ABC/Fox for the industry, said he expects oral argument in January. Floyd Abrams of Cahill Gordon, who prevailed in the Pentagon Papers case 40 years ago, used his opening remarks to rail against WikiLeaks for its irresponsible leaks of information outing government sources who could face retribution, but said the website still deserves First Amendment protection.
"The last term especially … laid a fantastic foundation for arguing a wide variety of First amendment issues,” Corn-Revere said. “I would say I am a glass overflowing kind of guy -- I would say the court is moving in profoundly” positive directions on freedom of expression, he said. He mentioned Snyder v. Phelps and Sorrel v. IMS. “So maybe it is a good thing that the indecency cases have taken as long as they have to reach the Supreme Court,” Corn-Revere said of the 2002 and 2003 broadcasts.
"It does seem to be a continuation of the Stevens case and the Phelps case of a very muscular approach to the First Amendment,” said Katie Fallow of Jenner & Block. In U.S. v. Stevens, the Supreme Court last year struck down a law barring the possession or distribution of depictions of animal cruelty, and Fallow helped represent the videogame industry in Brown. “No matter how low value, offensive or even potentially harmful speech may be,” Brown said, “the first Amendment protects it across the board,” she noted. The decision shows “an aversion to having government make the distinction” of what’s approved and not, Fallow said.
If the high court considers how the landmark 1978 Pacifica ruling, allowing the commission to fine broadcasters for repeated indecency, comports with current commission policy, it may be hard to justify how the agency acted in the current cases, Fallow said: “I want to be hopeful” but the court can be extremely hard to predict. Levine said he'd “be very surprised if the fleeting expletive policy survived” this case, but the question is whether it’s a “narrow ruling” or does it go to Pacifica.
Whether the court revisits Pacifica “to some degree depends on how far it goes in the briefings,” American University law Professor Steve Wermeil said of the coming industry briefs on ABC/Fox. He wondered whether they'll invoke the Red Lion decision on spectrum scarcity, arguing there’s not a shortage of frequencies now and so the government can’t treat broadcasting differently from other media. Corn-Revere noted that “the court doesn’t have to go so far as Pacifica to strike down the FCC in this case -- it doesn’t even have to go so far as Red Lion.”