Washington
Update
First Amendment Lawyers Association
San Diego, CA February 2012
Robert Corn-Revere
Another
Malfunction?
Rapper M.I.A.
flips out at the
2012 Super
Bowl halftime
show.
CBS Corporation v. FCC (3d Cir. 2008)

FCC violates APA by
ignoring well-established
“fleeting material” policy;

Contrary to FCC’s claims,
it has never treated
images differently from
words;

FCC
cannot
impose
liability without fault.
Judge Rendell Steps Up
“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
Chief Judge Scirica dissents
“I believe the Supreme Court’s intervening opinion in
FCC v. Fox Television Stations, Inc. . . . undermines the
basis of our prior holding on the Administrative
Procedure Act.”
FCC v. Fox Television Stations and ABC, Inc.
Argued Jan. 10, 2012
Billboard Music Awards
Cher: “Fuck ‘em”
Nicole: “Cow shit out of a Prada purse . . .”
NYPD Blue Fine

FCC fined 52 ABC owned
and/or
affiliated
stations
$27,500 each for an episode of
NYPD Blue. Total: $1.21
million.

“While ABC may not have
received many complaints
about the program, the
Commission
received
numerous complaints . . . from
members of various citizen
advocacy groups.”
FCC v. Fox I: FCC Upheld 5-4
Saluting the “Hollywood glitteratae”

Justice Scalia wrote the
opinion, joined by Chief
Justice Roberts and Justices
Alito, Thomas and Kennedy.

Justices Thomas and Kennedy
wrote separate concurring
opinions.

Justice
Breyer
dissented,
joined by Justices Stevens,
Ginsburg, and Souter.

Justices Ginsburg and Stevens
each wrote separate brief
dissents as well.
A New Theory of Regulation?
“The Commission could reasonably
conclude that the pervasiveness of foul
language, and the coarsening of public
entertainment in other media such as cable,
justify more stringent regulation of
broadcast programs so as to give
conscientious parents a relatively safe
haven for their children.”
Not so fast . . .
Justice Thomas, concurring

“Red Lion and Pacifica
were unconvincing when
they were issued, and the
passage of time has only
increased doubt regarding
their continued validity.”

“[D]ramatic technological
advances have eviscerated
the factual assumptions
underlying those decisions.”

“I
am
open
to
reconsideration of Red Lion
and Pacifica in the proper
case.”
Withholding Judgment on the
First Amendment
“[W]e must reserve
judgment on the
question whether
the agency’s action
is consistent with
the guarantees of
the Constitution.”
Justice Kennedy, concurring.
Foreshadowing?
Justice Breyer, dissenting

“[T]he FCC works in
the shadow of the First
Amendment. . . .”

The FCC . . . repeatedly
made clear that it based
its “fleeting expletive”
policy upon the need to
avoid treading too close
to the constitutional
line.
A popular metaphor . . .
Justice Ginsburg, dissenting

“I write separately only to
note that there is no way to
hide the long shadow the
First Amendment casts over
what the Commission has
done.”

“The Pacifica decision,
however it might fare on
reassessment, . . . was
tightly cabined, and for
good reason.”
Pacifica’s author explains its meaning

“Pacifica was not so
sweeping,
and
the
Commission’s
changed
view of its statutory
mandate certainly would
have been rejected if
presented to the Court at
the time.”

Changes in technology
“certainly
counsel
a
restrained approach to
indecency regulation, not
the wildly expansive path
the FCC has chosen.”
Justice Stevens, dissenting
Fox Television Stations, Inc. v. FCC (2d Cir. 2010)
“[T]he FCC’s policy .
. . is unconstitutionally
vague, creating a
chilling effect that
goes far beyond the
fleeting expletives at
issue here.”
Cher: “Fuck ‘em”
ABC, Inc. v. FCC
(2d Cir. 2011)
“[T]here is no significant
distinction between this case
and Fox. . . . Although this
case involves scripted nudity,
the case turns on an
application of the same
context-based indecency test
that Fox found ‘impermissibly vague.’”
Question on Round Two
Whether the Federal Communications
Commission’s
current
indecencyenforcement regime violates the First or
Fifth Amendment to the United States
Constitution.
Where are they when you need them?
Recused!
Joined Breyer’s dissent:
“the FCC works in the
shadow of the First
Amendment . . .”
“The Commission’s changed
view of its statutory mandate
certainly would have been
rejected if presented to the
Court at the time.”
Justice Ginsburg
has a question:
“If they did an
excerpt from ‘Hair,’
could they televise
that? In the opera
‘The
Makropulos
Affair’ there’s a
scene
where
a
woman is seen nude
entering a bathtub.
Suppose that were
shown?”
A gift for understatement . . .
“We would concede
that there is not
perfect clarity in this
rule.”
Solicitor General Don Verrilli
Justice Kagan Gets it
“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 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
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
Justice Scalia’s easy solution . . .
“Maybe . . . you shouldn’t
interview these people.”
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
Andre-Louis-Rene Maginot
The Maginot
Line
The Electronic Maginot Line
Other Issues
U.S. v. Alvarez, No. 11-210 (2012)
The question
presented is whether
18 U.S.C. 704(b) is
facially invalid
under the Free
Speech Clause of the
First Amendment.
R.J. Reynolds Tobacco Co. v. FDA (D.D.C. 2011)
Judge Leon enjoins
the FDA labeling
rule.
“One can only wonder
what the Congress and
the
FDA
might
conjure for fast food
packages and alcohol
containers if, like the
Canadian government,
they
were
not
compelled to comply
with the intricacies of
our First Amendment
jurisprudence.”
Barnes v. Zaccari (11th Cir. Feb. 7, 2012)
“No tenet of constitutional
law is more clearly
established than the rule
that a property interest in
continued enrollment in a
state
school
is
an
important
entitlement
protected by the Due
Process Clause.”