Concurrences in ‘FCC v. CBS’ Show Roberts’ Hand on Indecency’s Constitutionality

At issue was whether at least six of nine jurists believed there’s no reason to hear oral argument on the U.S.’s appeal of the second time the 3rd U.S. Circuit Court of Appeals ruled (CD Nov 3 p3) to overturn a $550,000 indecency fine against CBS, noted lawyer Harry Cole of Fletcher Heald. Jackson and halftime dance partner Justin Timberlake called it a “wardrobe malfunction.” Other lawyers said that in concurring with the majority’s vote to let stand the Philadelphia court’s ruling that the fine violated the Administrative Procedure Act, Chief Justice John Roberts showed a bit more of his views on indecency regulation. They said he showed he’s generally inclined to give the FCC leeway to issue indecency censures, possibly signaling how he'd rule on a First Amendment case. The 3rd Circuit said the commission didn’t give sufficient notice that its practice of not fining isolated instances of indecent content was being abandoned last decade.

Reiterating her opposition to the landmark 1978 Pacifica ruling upholding the commission’s authority to fine broadcasters for repeated instances of cursing meanwhile was Justice Ruth Bader Ginsburg. She'd like to revisit Pacifica, she said. The recent Fox II ruling “affords the Commission an opportunity to reconsider its indecency policy in light of technological advances and the Commission’s uncertain course since this Court’s ruling in FCC v. Pacifica,” Bader Ginsburg wrote (http://xrl.us/bndbnq). Along with Justice Clarence Thomas, whose concurrence on Fox I in 2009 criticized the constitutionality of indecency enforcement, it seems Bader Ginsburg would now vote to end the FCC’s authority in the area, said attorneys including Fletcher Heald’s Kevin Goldberg. The FCC declined to comment on the CBS ruling.

"The votes of 1/3 of the court are coming into focus,” with Bader Ginsburg and Thomas likely overturning indecency regulations and Roberts “clearly” upholding them, “probably joined as well by” Antonin Scalia, said Goldberg. Scalia wrote the 5-4 ruling in Fox I sending the case over cursing by Cher and Nicole Richie on Fox’s Billboard Music Award shows a decade ago back to the 2nd U.S. Circuit Court of Appeals, whose reversal of the FCC censure set up the Fox II case. That the high court choose not to hear CBS was no surprise to longtime court observers, but they were surprised by the concurrences, they said. Roberts’ concurrence was a bit different than what Fox II said, one such attorney said.

"Until 2004, the FCC made a limited exception to this general policy for fleeting expletives,” Roberts wrote of indecency regulations. “But the agency never stated that the exception applied to fleeting images as well, and there was good reason to believe that it did not. As every schoolchild knows, a picture is worth a thousand words, and CBS broadcast this particular picture to millions of impressionable children.” Of the 3rd Circuit’s holding that the fine against CBS “represented an unexplained departure from the agency’s longstanding policy of excusing the broadcast of fleeting moments of indecency,” Roberts said, “I am not so sure.” He “nonetheless” concurred with the three Philadelphia judges, the statement read: “Even if the Third Circuit is wrong that sanctioning the Super Bowl broadcast constituted an unexplained departure from the FCC’s prior indecency policy, that error has been rendered moot going forward. The FCC has made clear that it has abandoned its exception for fleeting expletives.”

It’s “now clear that the brevity of an indecent broadcast -- be it word or image -- cannot immunize it from FCC censure,” Roberts continued. “Any future ‘wardrobe malfunctions’ will not be protected on the ground relied on by the court below.” The concurrence took issue with the musicians’ explanation for the breast-baring: “The performers subsequently strained the credulity of the public by terming the episode a ‘wardrobe malfunction.'” The Parents Television Council, “disappointed” with the ruling, said “American families should be comforted that future ‘wardrobe malfunctions’ will not go unpunished.” Roberts’ statement means “broadcasters have now been issued fair warning,” President Tim Winter said.

In 2004, CBS “took immediate steps to implement delays on all live entertainment programs so that we could safeguard against similar incidents of unintended and spontaneous snippets of live broadcasts,” a spokeswoman said. At the time, the network “expressed deep regret” for the incident, she said by email. “All we ever sought was an affirmation of the long established policy of balanced, consistent and deliberate indecency enforcement the FCC had followed for decades before the incident. At every major turn of this process, the lower courts have sided with us. And now that the Supreme Court has brought this matter to a close, we look forward to the FCC heeding the call for the very balanced enforcement which was the hallmark of the Commission for many, many years.”

Bader Ginsburg’s concurrence seemed “thrown together as a sort of response or counterpoint to Roberts’s,” speculated Cole. “To the extent that he seems to be trying to signal to the FCC that he represents one vote in favor of retention of the indecency policies, Ginsburg seems to be trying to remind the commission that she, for one, has identified a number of solid reasons for questioning any claim that the indecency policies could survive direct First Amendment scrutiny.” The high court doesn’t often issue concurrences in denying cert, said industry lawyers and scholars not involved in the proceeding. They're “not common, but not that rare,” said Prof. Eugene Volokh of UCLA. “You'll find one every couple of years” or so, he estimated. Such instances “happen from time to time, but they are not frequent,” said University of California at Irvine’s Erwin Chemerinsky.

For radio and TV stations that aired indecent content after the March 18, 2004, Golden Globe order (CD June 27 p1), they're now again on notice they face an FCC fine, industry lawyers said. “While the bottom line in Fox was that Fox and ABC got off the hook, that happy result was based on the technicality that the broadcasts in question had occurred before the Commission had announced, in 2004, that fleeting expletives (and, by extension, fleeting images) were taboo,” Cole wrote on his firm’s blog (http://xrl.us/bndbun). “The Court’s opinion left wide open the question of whether the FCC could, consistently with the First Amendment, penalize such broadcasts occurring after the 2004 announcement. It also left open the question of whether the FCC could penalize other instances of non-fleeting language (or images), regardless of whether they were aired before or after the 2004 announcement.” Of Roberts’s “unusual separate opinion,” wrote David Silverman on the Davis Wright blog (http://xrl.us/bndbut), “he noted that going forward, broadcasters are on notice that fleeting indecent words and images are both now subject to FCC sanctions.”