Tuesday, July 20, 2010

Constitutional Reckoning Draws Closer for Digital Age Free Speech

The next term of the U.S. Supreme Court could finally give rise to a new free speech jurisprudence for digital age communications. Just last week the U.S. Court of Appeals for the Second Circuit ruled in Fox v. FCC that the agency's indecency policy violates the First Amendment. The appeals court concluded that the FCC's policy prohibiting "fleeting expletives" on the broadcast airwaves was unconstitutionally vague and created a chilling effect on speech.

Regardless of one's views on indecency regulation, the case has important implications for a variety of media speech regulations. An FCC appeal of the Second Circuit's ruling could pave the way for a Supreme Court reexamination of existing – and now outdated – doctrine that gives less speech protection to certain broadcast, cable, or other media than print publications.

The Fox v. FCC case has a lengthy history. To quickly recap: back in April, 2009, the U.S. Supreme Court ruled that the FCC's "fleeting expletives" policy was not "arbitrary" or "capricious" under the Administrative Procedure Act. However, the Court's majority declined to decide the First Amendment issue in the case. Instead, it sent the case back to the Second Circuit to decide the constitutional question. Notwithstanding this, Justice Antonin Scalia's 2009 opinion for the Court called it "conceivable" that the FCC's policy might chill some protected speech, hinting "[w]hether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case." And in a concurring opinion, Justice Clarence Thomas forthrightly insisted that "[t]he extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply does not exist today." Justice Thomas's opinion cited FSF President Randolph May's 2007 Charleston Law Review article, "Charting a New Constitutional Jurisprudence for the Digital Age."

Essentially answering the question posed by Justice Scalia, the Second Circuit has now ruled that the FCC's "fleeting expletives" policy does, in fact, chill protected speech because it gives no fair notice to broadcasters about what language is permissible speech and what language is impermissible, indecent speech. More importantly, the Second Circuit's new ruling in Fox v. FCC reiterates Justice Thomas's observation about technological innovation's evisceration of Pacifica's rationale for a lower standard of free speech protection for broadcast speech. As the Second Circuit observed:

[W]e 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.' …

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… The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs.

The Second Circuit cited the FCC's own 2009 Video Competition Report as well as other FCC reports in support of its contentions about the modern media landscape. However, the Second Circuit considered itself "bound by Supreme Court precedent, regardless of whether it reflects today's realities," acknowledging that "[t]he Supreme Court may decide in due course to overrule Pacifica and subject speech restrictions in the broadcast context to strict scrutiny."

The FCC has not yet indicated whether or not it will appeal the ruling to the Supreme Court. But in the event FCC does appeal, we may finally witness a moment of constitutional reckoning. As Randolph May's law review article explained, a Supreme Court revisiting of its free speech jurisprudence under Red Lion, Pacifica and Turner could lead to "a new First Amendment paradigm for the electronic media, one that is much more in keeping with the Founders' First Amendment." This would mean that the Court will begin to subject all government regulation of speech, regardless of the media used, to strict scrutiny in order to ensure free speech is protected.

The point isn't that the Court needs to somehow bring the Constitution "up to date." Rather, the point here is that the Court should restore cogency and even-handedness to its constitutional doctrine. Simply put, no good reason exists to give greater deference to government regulation of broadcast or cable than to government regulation of Internet-delivered video or print newspapers. The Court should recognize that the analog-era rationale behinds its existing First Amendment jurisprudence that gives lesser constitutional protection to certain forms of media speech cannot be plausibly relied upon for denying digital-age equal treatment to alternative technologies.

A second round of Fox v. FCC at the Supreme Court would also give the justices a chance to make good on the Court's recent observation in Citizens United v. FEC (2010) that it "must decline to draw, and then redraw, constitutional lines based on particular media or technology used to disseminate political speech from a particular speaker," since "[t]he interpretive process itself would create an inevitable, pervasive, and serious risk of chilling protected speech pending the drawing of fine distinctions that, in the end, would themselves be questionable." As Justice Anthony Kennedy went on to write in Citizens United: "The Framers may have been unaware of certain types of speakers or forms of communication, but that does not mean that those speakers and media are entitled to less First Amendment protection than those types of speakers and media that provided the means of communicating political ideas when the Bill of Rights was adopted."

The Second Circuit's commonsense reflection on the mismatch between Pacifica's rationale and today's media marketplace should cause the Supreme Court, if presented again with the opportunity, to undertake a serious reevaluation of its First Amendment jurisprudence. So should the importance of technological neutrality in constitutional free speech cases.

A future Fox v. FCC ruling by the Supreme Court could be the occasion for restoring constitutional principle while, at the same time, jettisoning doctrinal deviations that are tied to outdated apprehensions that prevailed in the analog era.