I wrote last night of internet obscenity. Today, the Second Circuit handed down its opinion in Fox v. FCC, declaring unconstitutional the FCC’s indecency policy of fining network television stations for broadcasting fleeting expletives.
The Second Circuit heard this case on remand from the Supreme Court, which last term upheld the FCC’s regulation as a matter of administrative law by a 5-4 vote. The Court refused to address the constitutional question of whether the policy violated the First Amendment – the issue the Second Circuit answered in the affirmative today.
Justice Thomas concurred in last year’s conservative majority, expressing his willingness to strike down the regulation on constitutional grounds even though he did not believe it to be impermissibly arbitrary or capricious under the Administrative Procedure Act. Thomas advocated for overturning precedents that gave less First Amendment protection to broadcast speech than otherwise given to utterances in printed media or cable television. “Red Lion and Pacifica,” he wrote, “were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.”
Thomas has made a career out of similar separate opinions calling for breaks from incorrect precedents. While commentators may debate the long-term influence of Thomas’s lone cry in McDonald this term to overturn over a century of precedent so to exhume the Privileges or Immunities Clause of the Fourteenth Amendment, they may find more immediate satisfaction if FCC v. Fox (captioned Fox v. FCC in today’s Second Circuit opinion) gets back to the Court on the constitutional issue.
Here’s the money quote from Judge Pooler’s opinion, which echoes Thomas’s concurrence:
The Networks argue that the world has changed since Pacifica and the reasons underlying the decision are no longer valid. Indeed, we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in the lives of all Americans.” Pacifica, 438 U.S. at 748.
The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. See In re Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 24 FCC Rcd. 542, at ¶ 8 (2009). The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs. […]
Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. […] In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978. In fact, the existence of technology that allowed for household-by-household blocking of “unwanted” cable channels was one of the principle distinctions between cable television and broadcast media drawn by the Supreme Court in Playboy. The Court explained:
The option to block reduces the likelihood, so concerning to the Court in Pacifica, that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners – listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt.
We can think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available.
Nevertheless, Pooler refused to defy Supreme Court precedent and instead struck down the regulation as an impermissibly vague restriction on speech:
We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. Omnibus Order, 21 F.C.C. Rcd 2664, at ¶¶ 127-128. Other expletives such as “pissed off,” up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive. Id. at ¶ 197. The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future. […]
[T]he absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.
What seems certain from last year’s vote is that the Supreme Court, should it grant certiorari in this case, will affirm the Second Circuit’s judgment. If the four liberals–Stevens, Souter, Breyer, and Ginsburg–would have invalidated the policy on administrative law grounds, they would likely strike it down on constitutional grounds as well. And Thomas would surely provide a fifth vote, given his concurrence. Because no other member of the Court’s Fox majority joined Thomas’s concurrence, I question whether Roberts, Scalia, or Alito will side with the dissenters on the constitutional question, though I fall back on conventional wisdom in thinking that Kennedy is up for grabs.
The question now is whether the Court would follow Thomas’s suggestion and remove the constitutional distinctions between broadcast and other mediums, thereby submitting all speech restrictions to strict scrutiny. We don’t know how Sotomayor or Kagan would look towards uprooting precedent, especially one of Kagan’s (assuming she gets confirmed) predecessor’s landmark rulings. Stevens himself intimated in his Fox dissent that “Justice Thomas and I disagree about the continued wisdom of Pacifica,” implying that he would follow the Second Circuit’s void-for-vagueness ruling rather than overturn himself.
Justice Ginsburg, however, signaled her openness to joining Thomas by citing Justice Brennan’s Pacifica dissent:
The Pacifica decision, however it might fare on reassessment, see ante,at 6 (Thomas, J., concurring), was tightly cabined, and for good reason. In dissent, Justice Brennan observed that the Government should take care before enjoining the broadcast of words or expressions spoken by many “in our land of cultural pluralism.” 438 U. S., at 775. That comment, fitting in the 1970’s, is even more potent today. If the reserved constitutional question reaches this Court, see ante, at 26 (majority opinion), we should be mindful that words unpalatable to some may be “commonplace” for others, “the stuff of everyday conversations.” 438 U. S., at 776 (Brennan, J., dissenting).
Tonight Lil’ Wayne, Eminem, Travis Barker, and the atrociously autotuned Drake performed “Forever” at the Grammys.
Starting just before two minutes into the above video, you will notice unnecessarily long patches of silence during the song. I’m not familiar with the song they played, so I do not know if the silences were technical difficulties or in response to expletives in the lyrics. But if expletives were indeed getting blanked out, then perhaps CBS was ultra-conspicuously responding to past incidents that led to last term’s Supreme Court case, FCC v. Fox Television Stations.
At issue in FCC v. Fox was whether the FCC irrationally changed its policy on broadcast indecency to punish previously uncovered “fleeting expletives” on radio and television. The FCC’s changes were in response to complaints against Fox’s broadcasting Cher’s F-Bomb at the 2002 Billboard Music Awards, Nicole Richie and Paris Hilton’s S-Word at the next year’s award show, and NBC’s broadcasting Bono’s F-Bomb at the 2004 Golden Globes. Following the doctrine of constitutional avoidance, the Court, splitting 5-4 for the conservatives, avoided the First Amendment question to hold that FCC’s regulation was not arbitrary and capricious. The case, however, could be back up to the Court next term: on remand, the Second Circuit heard argument on January 13 over the regulation’s constitutionality under the First Amendment.
So back to tonight: assuming the silences were in response to expletives in the song’s lyrics, could CBS have been doing more than merely exercising over-caution? Could they actually have been blanking out chunks of the song in a deliberate attempt to infuriate viewers? That is, perhaps CBS hoped that enough viewers would write to the FCC expressing disgust that CBS censors felt “compelled” to be overzealous with the bleep button during a song enjoyed by much of America. This, of course, is a longshot: the ACLU, for instance, may not have the vigilance or the committed following to organize a major letter-writing campaign to the FCC such as the Family Research Council mobilized in response to the Bono’s utterance.
Nevertheless, such efforts may be unnecessary. First, the FCC under the Obama Administration may be less inclined to enforce the fleeting expletives regulations. Second, the Obama Administration could do away with the regulation altogether. Third, the Second Circuit could strike down the regulation as unconstitutional and the Court could deny certiorari. Or fourth, the Court could grant certiorari regardless of how the Second Circuit rules and then strike down the regulation as unconstitutional. Indeed, last year’s voting blocs will not remain static on the constitutional issue. Writing separately, Justice Thomas clearly signaled that he would give the broadcasters the winning vote should the Court decide the case on constitutional grounds:
I join the Court’s opinion, which, as a matter of administrative law, correctly upholds the Federal Communications Commission’s (FCC) policy with respect to indecent broadcast speech under the Administrative Procedure Act. I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.
All of this conjecture may be moot if the silences were merely technical difficulties. Still, the LA Times’s liveblog writes:
Not sure how the performance played in the Staples Center — and it seemed to look pretty powerful — but it was largely bleeped on CBS broadcast.
If I learn anything more, I’ll post it here in an update.
UPDATE: Here’s the uncensored version. Looks like the silences were from the censor’s hand.