Washington
Update
First Amendment Lawyers Association
Chicago, July 2012
Robert Corn-Revere
Question presented in FCC v. Fox
Television Stations, Inc. and ABC, Inc.
Whether the Federal Communications
Commission’s
current
indecencyenforcement regime violates the First or
Fifth Amendment to the United States
Constitution.
FCC Orders Invalidated 8-0
Justice Kagan Discovers the
“Steven Spielberg Exception”
“It’s like nobody can
use dirty words or
nudity except for
Steven Spielberg. . . .
And so it’s a serious
First
Amendment
issue.”
Justice Elena Kagan
Justice Kennedy’s good question
Justice Anthony Kennedy
Why is there a different
standard for broadcast
television “when there
are so many other
options and – when it’s
not apparent to many
viewers which of the
two they’re watching?”
Justice Kennedy’s good question
Is it “just because it’s
an important symbol
for our society that we
aspire to a culture
that’s not vulgar in a
very small segment?”
Justice Anthony Kennedy
Justice Antonin Scalia
“Sign me up as supporting [the] notion that
this has a symbolic value, just as we
require a certain modicum of dress for the
people that attend this Court . . .”
Justice Sam Alito
“Broadcast TV is living on borrowed time.
It is not long before it goes the way of vinyl
records and 8-track tapes. . . . Why not let
this die a natural death?”
What if there’s no speech police?
It is inevitable that “every
celebrity or wannabe
celebrity that is interviewed can feel free to
use one of these words.
We will expect it as a
matter of course, if you
prevail.”
Justice Anthony Kennedy
The Chief Justice’s Freudian Slip
“All we are asking for,
what the government is
asking for, is a few
channels where . . . they
are not going to hear the
S-word, the F-word. They
are not going to see
nudity.”
Chief Justice John Roberts
Justice Breyer’s Concern
“Does this case in
front of us really call
for the earthshaking
decision that you all
have argued for in the
briefs?”
Justice Stephen Breyer
FCC v. Fox Television Stations and ABC, Inc.

“[B]ecause the Court resolves these cases under fair notice
grounds under the Due Process Clause, it need not address the
First Amendment implications of the Commission’s indecency
policy.”

“[T]his opinion leaves the Commission free to modify its
current indecency policy in light of its determination of the
public interest and applicable legal requirements.”

“And it leaves the courts free to review the current policy or
any modified policy in light of its content and application.”
Wait, there’s more . . .
The void-for-vagueness
doctrine applies to all
laws, but “[w]hen speech
is involved, rigorous
adherence
to
those
requirements is necessary to ensure that
ambiguity does not chill
protected speech.”
Justice Anthony Kennedy
Justice Ginsburg condemns Pacifica
Justice Ginsburg, concurring
“In my view, the Court’s
decision in FCC v. Pacifica
Foundation . . . was wrong
when it was issued. Time,
technological advances, and
the Commission’s untenable
rulings in the cases now before
the Court show why Pacifica
bears reconsideration.”
Could we have done better?

What would the Court have done if it had not
been asked to choose between the FCC’s
decisions and no rules at all?

Would we be better off if the Court had
affirmed the Second Circuit’s ruling on
vagueness but made clear that the FCC could
try to craft a new policy under Pacifica?
Supreme Court Denies Cert.
in FCC v. CBS Corporation
CBS Corporation v. FCC (3d Cir. 2011)
“While we can understand the
Supreme Court’s desire that we
re-examine our holdings in light
of its opinion in Fox . . . we
conclude that, if anything, Fox
confirms our previous ruling in
this case and that we should
readopt our earlier analysis and
holding that the Commission
acted arbitrarily in this case.”
CBS Corporation v. FCC (3d Cir. 2011)
Judge Marjorie Rendell
Roberts concurs . . . sort of
“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.”
Chief Justice John Roberts
What we have here is a failure to
communicate . . .
From the unanimous
decision in Fox:
From Roberts’ Super
Bowl statement:
“[T]he Commission policy in place
at the time of the broadcasts gave
no notice . . . that a fleeting
expletive or a brief shot of nudity
could be actionably indecent.”
“But the agency never stated that
the exception applied to fleeting
images as well, and there is good
reason to believe that it did not.”
U.S. v. Alvarez, No. 11-210 (2012)

18 U.S.C. 704(b) is
facially invalid under
the Free Speech
Clause of the First
Amendment.

6-3 (plurality)
Justice Kennedy writes for a plurality.
Joined by Chief Justice Roberts, Justice
Ginsburg, and Justice Sotomayor.
Applying Basic Principles
“Fundamental constitutional
principles require that laws
enacted to honor the brave
must be consistent with the
precepts of the Constitution
for which they fought.”
Justice Anthony Kennedy
United States v. Stevens is the rule

Court has rejected as “startling and dangerous” a “free-floating
test for First Amendment coverage . . . based on an ad hoc
balancing of relative social costs and benefits.”

The plurality rejected “the notion that false speech should be a
general category that is presumptively unprotected.”

Allowing the government to prohibit false statements without
some proof of fraud or other harm “has no clear limiting
principle.”
Stolen Valor Act Fails Strict Scrutiny

First Amendment requires that the restriction on speech be
“actually necessary;” there must be “a direct causal link
between the restriction imposed and the injury to be
prevented.”

“The Government has not shown, and cannot show, why
counterspeech would not suffice to achieve its interest. . . . The
remedy for speech that is false is speech that is true. This is
the ordinary course in a free society.”
Anthony Kennedy:
First Amendment God
Justice Kennedy

“The response to the
unreasoned is the rational;
to the uninformed, the
enlightened; to the straightout lie, the simple truth.”

“Truth
needs
neither
handcuffs nor a badge for its
vindication.”
On the other hand . . .

“I do not rest my
conclusion upon a strict
categorical analysis.”

Applies “proportionality;”
or “intermediate scrutiny.”

The Court must determine
“whether the statute works
speech-related harm that is
out of proportion to its
justifications.”
Justice Breyer searches for a principle . . .
Déjà vu: Breyer on balancing in
Brown v. EMA
“I would evaluate. . .
whether,
overall,
‘the
statute
works
speechrelated harm . . . out of
proportion to the benefits
that the statute seeks to
provide.’”
Justice Breyer, dissenting
And again in Sorrell v. IMS Health
“In this case I would ask
whether
Vermont’s
regulatory
provisions
work harm to First
Amendment
interests
that is disproportionate
to their furtherance of
legitimate
regulatory
objectives.”
Justice Breyer dissenting, joined by Justices
Ginsburg and Kagan
Breyer’s concurrence in Alvarez

Prohibiting false statements about philosophy, religion,
history, the social sciences, the arts, and the like raise First
Amendment concerns, but the risk of suppressing valuable
speech is lower where the law targets “false statements about
easily verifiable facts.”

Most restrictions on false speech require some proof of harm,
but “[t]he statute before us lacks any such limiting features;”

“[I]t is likely that a more narrowly-tailored statute combined
with . . . information-disseminating devices will effectively
serve Congress’ end.”
Justice Alito, joined
by Justices Scalia and
Thomas, dissenting.
“These lies have
no value in and of
themselves, and
proscribing them
does not chill any
valuable speech.”
Justice Alito looks askance at the First Amendment
“Surely it was reasonable for Congress to conclude that the goal
of preserving the integrity of our country’s top military honors
is at least as worthy as that of protecting the prestige associated
with fancy watches and designer handbags.”
The First Amendment in the 2011-12 Term

United States v. Alvarez

FCC v. CBS Corporation

FCC v. Fox Television Stations, Inc. and ABC, Inc.

American Tradition Partnerships, Inc. v. Bullock

Knox v. Service Employees International Union

Reichle v. Howards

Golan v. Holder
First Amendment in the Court 2009-2012
Wins
Losses

United States v. Alvarez

Golan v. Holder

FCC v. CBS Corporation

Reichle v. Howards

FCC v. Fox Television Stations, Inc. and
ABC, Inc.

Borough of Duryea v. Guarnieri

Nevada Commission on Ethics v. Carrigan

Christian Legal Society v. Martinez

Doe v. Reed

Holder v. Humanitarian Law Project

Milavetz, Gallop & Milavetz, PA, v. U.S.

American Tradition Partnerships, Inc. v.
Bullock

Knox v. Service Employees International
Union

Snyder v. Phelps

Brown v. EMA

Sorrell v. IMS Health Inc.

Arizona Free Enterprise Club’s Freedom
Club PAC v. Bennett

Citizens United v. FEC

United States v. Stevens
The Supreme
Court:
America’s
National
Rorschach
Test