Constitutional Reckoning Still to Come

Yesterday, the Supreme Court handed down its long-awaited decision in the Fox Television case concerning the FCC's regulation of "indecent language" aired by broadcasters. Acting under the authority of a decades-old federal statute banning indecent broadcasts, in 2004 the Federal Communications Commission adopted new policy sanctioning the broadcast of "fleeting expletives," even when used in a nonliteral sense. Previously, the FCC had required more than the isolated use of the expletives (what the Court termed the "F-Word" and the "S-Word") before sanctioning broadcasters.

On administrative law grounds, the Court's five-to-four majority determined that the FCC's new "fleeting expletives" policy was not "arbitrary" or "capricious" within the meaning of the Administrative Procedure Act. For administrative law scholars and aficionados (and I count myself among this group), the six different decisions of the Justices are a rich vein to be mined.

But here I am concerned primarily with what was not decided. As Justice Scalia said at the end of his majority opinion: "It is conceivable that the Commission's orders may cause some broadcasters to avoid certain language that is beyond the Commission's reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case." Fox and other broadcasters had argued that the FCC's sanctions for fleeting expletives violated their free speech rights under the First Amendment. While the appeals court indicated in dicta it agreed, it did not rule on the constitutional issue because it found, in any event, that the FCC's action was arbitrary and capricious.

Now the case goes back to the appeals court for further proceedings, where presumably the broadcasters will continue to press their First Amendment argument. In a concurring opinion, Justice Thomas made clear that he thought the Court should reconsider the viability of the Court's precedents in the Red Lion and Pacifica cases, which limited broadcasters First Amendment rights, largely on the basis of perceived spectrum scarcity. In a brief cogent opinion, Justice Thomas elucidates the "doctrinal incoherence" of those analog era decisions and explains that, even had they been doctrinally coherent at the time, they are not so in today's much changed digital era of media abundance.

Justice Thomas concludes that "[t]he extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today." I was gratified that in making this point, Justice Thomas cited my very recent law review article, Charting a New Constitutional Jurisprudence for the Digital Age, which appears at 3 Charleston Law Review 373 (2009).

So, it now appears likely that the constitutional reckoning concerning the FCC's new policy is still to come, perhaps soon. In my article which Justice Thomas cites, I stated: "Hopefully sooner rather than later, the Court will revisit Red Lion, Pacifica, and Turner in order to establish a new First Amendment paradigm for the electronic media, one that is much more in keeping with the Founders’ First Amendment vision." The article makes clear that the First Amendment issues at stake go far beyond the government's regulation of "indecent" speech. Under the existing First Amendment paradigm, other speech regulations, such as the Fairness Doctrine and "must carry" obligations, have been sustained.

I concluded the article this way:

"Perhaps it was predictable, maybe even likely, that the First Amendment’s protections would be limited substantially during the twentieth century’s analog age that tended towards a monopolistic or oligopolistic communications marketplace. But, now, in the face of proliferating competitive alternatives attributable to profound marketplace and technological changes, it ought to be considered predictable, and, yes, even likely, for the Court to establish a new First Amendment jurisprudence befitting the media abundance of the twenty-first century’s digital age."

Because I believe the First Amendment's free speech protection, including protection of the electronic media, is central to the preservation of a healthy democracy, I remain optimistic that such a new First Amendment jurisprudence will be established sooner rather than later.