A Victory For the Free Expression Coming?

So all the legal nerds in the world tuned in to watch what Supreme Court opinions came down yesterday.  I made corny jokes on twitter, such as that “there is no truth to the rumor that the [Arizona] immigration case will be written entirely in Spanish, just to screw with us.”  But alas we didn’t get our Obamacare decision or even a crummy Arizona immigration decision (in any language) and a lot of people went back to their lives disappointed.

But there was one piece of news buried in one of the decisions that came down.  It was in FCC v. Fox, and reading over it, it had one passage that made my ears perk up.  But to understand it, I have to give you a lot of background.  Around 90% of this piece is going to be help you understand one measly paragraph in that decision, because I think it is potentially momentous.

So, to dive into that context, the Fox network and ABC had engaged in various acts of alleged indecency.  The Court explained these incidents in a way that bled all color or fun out of them, in the way only a court can:

It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the singer Cher exclaimed during an unscripted acceptance speech: “I’ve also had my critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.” 613 F. 3d, at 323. Second, Fox broadcast the Billboard Music Awards again in 2003. There, a person named Nicole Richie made the following unscripted remark while presenting an award: “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.” Ibid. The third incident involved an episode of NYPD Blue, a regular television show broadcast by respondent ABC Television Network. The episode broadcast on February 25, 2003, showed the nude buttocks of an adult female character for approximately seven seconds and for a moment the side of her breast. During the scene, in which the character was preparing to take a shower, a child portraying her boyfriend’s son entered the bathroom. A moment of awkwardness followed. 404 Fed. Appx. 530, 533–534 (CA2 2011). The Commission received indecency complaints about all three broadcasts. See Fox I, 556 U. S., at 510; 404 Fed. Appx., at 534.

So the FCC tried to fine them for this.  There is no word on whether they wanted to do something more drastic in response to the infamous NYPD Blue Dennis Franz shower scene.  I am all for free expression and all, but that was the mass infliction of emotional distress.  I think flogging might be appropriate.

Joking aside (and that last bit is truly a joke—I don’t favor censorship of even, shiver, Franz’s bare hindquarters) you might ask where the government gets the right to do this sort of thing.

Well, the answer was that this was approved in FCC v. Pacifica, in 1978.  Have you ever heard of George Carlin’s routine about the seven words you can’t say on Television?  Well, if you haven’t, and with a very obvious language warning, take a listen here:

Well, in Pacifica, some guy decided to test if those seven words could be said on the radio by playing that routine, and discovered in fact it couldn’t be, with the FCC fining them and all that.

Which gosh, seems hard to square with the First Amendment, doesn’t it?

Now, maybe you can say, “look, when the founding fathers were talking about speech, they were talking about how loud you could shout.  It was self-limiting.  Simply put, the word ‘speech’ doesn’t encapsulate the concept of sound coming out of those ‘magic boxes.’”

And that is how the Supreme Court looked at it back then and so the Constitution, being a living document in their minds had to grow and stretch to meet this new problem, and thus allow broadcasts to be censored in a way that nothing else could be.

Which I think is exactly getting it backwards.  Even if you accept the reasonable premise that the Constitution was not written with radio and television in mind, so what?  Before you ask whether the First Amendment protects the right to broadcast, you have to ask, “where does Federal Government get the power to regulate broadcasts?”  Because, after all, with the Federal Constitution all powers not granted to the government are denied.  This is indeed codified in the Ninth and Tenth Amendments.  So the same argument that would say the First Amendment doesn’t account for radio and television, also means that the Federal Government is not granted the power to regulate it in the first place, and it is certainly not granted the right to regulate advocacy of ideas or the use of specific words.  So if we want to play the “the founders never thought of this” game let’s play it consistently and say that Constitution doesn’t grant the Federal Government the right to regulate this medium in the first place.

This illustrates, then, the danger of living constitutionalism as a doctrine.  Sure a liberal might be happy to see the Supreme Court pull a right to gay marriage out of thin air, but the trade-off is that they might also “evolve” the Constitution in such a way that it destroys essential freedom.  They might determine, for instance, that with our changing times that the First Amendment should no longer protect the right to blaspheme which is essential to our freedom of religion.  They could whittle away our precious inheritance of freedom until it is a shell of what it was before.

So in Pacifica, they talk about a lot of issues that seem utterly divorced from the text and history of the Constitution:

We have long recognized that each medium of expression presents special First Amendment problems...  And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve "the public interest, convenience, and necessity."  Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize,… it affords no such protection to broadcasters; on the contrary, they must give free time to the victims of their criticism.

The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder....  Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.

Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 U. S. 629, that the government's interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected expression.... The case with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.

And part of this rests on the legal fiction that the public owns the airwaves.  So it’s like publicly owned land.  The government might let renters come in and claim a parcel here and there, and likewise certain frequencies are “licenced” to different stations, with the Federal Government retaining the ultimate ownership of them.  And so in the metaphor of government-owned land, the government can reasonably pick who gets the land based on the public benefit that their use would have.  So if one potential lessee wanted to turn his tract into a farm, and the other wanted his fields to run wild, the government could rationally say, “let’s give the land to the farmer, so that there is more food in the community.”

But then again, the Supreme Court would not countenance the government giving out land depending on a promise to vote for a certain candidate, or to put up yard signs favoring a specific party.  I think it is reasonable for the Federal Government to set down content-neutral rules such as requiring frequencies to be a sufficient distance apart to reduce interference, and other technical matters, but that doesn’t give government the power to regulate the content.

But in Pacifica, for the Supreme Court, it gave the Federal Government precisely that power.

And over time the effects of that decision became limited.  For instance, the Supreme Court has stated that while broadcast can be regulated to a degree, cable TV, satellite TV, and so on could not (except to the same degree that books or movies in movie theaters could be, more or less).  The court reasoned that you are inviting those technologies into your home in a way that you are not with the ordinary UHF/VHF technology, and the AM/FM waves.  That proprietary receiver you need, to listen to Sirius or to watch Direct TV doesn’t just ensure that that they get paid.  I mean, it’s mostly that, but it also gives them the right to say what they want.  On normal radio, Howard Stern was regularly fined record sums of money.  On Sirius he is free to be his smutty self, and if you don’t like what he says and does, you don’t have to listen to it.  And that is indeed precisely why Stern made the switch (well, that and money I am sure).  I remember when he did it: he said he was sick of being subject to FCC censorship.

And for me I never thought that this distinction made sense.  Yeah, I suppose in some sense of the word, radio and television waves were invading your home, but it was of no consequence to you unless you engaged in the affirmative act of setting up a machine to receive them.  And when you consider that this rule applies not just to cable—a signal that doesn’t enter your home without your consent—but to satellite TV and radio, this makes even less sense.  Those satellite signals are equally invading your home, but the law says this doesn’t matter... because you have to buy special equipment to receive them.  I mean I have heard of people with dental work receiving ordinary radio signals, but for pretty much everyone else, you can’t listen to a song on the normal radio without you also buying special equipment.  I suppose in the mind of the courts a AM/FM radio is “less special” than a Sirius equipped radio, but the morally significant issue is that you can’t hear either kind of signal without actually affirming your consent by buying the equipment.

I mean I call this site “Allergic to Bull” for a reason and this is bull.  What is really happening is that the courts have decided they were not thrilled with this Pacifica doctrine and so every time they have been asked to extend it to a new medium, they have refused.  And lawyers who know how the common law evolves can start to see what it means when that happens.  After a while this doctrine in relation to broadcast will start to look more and more like an outlier, something that doesn’t fit with the fabric of the rest of the law.  Right now a child can pick up a smartphone and see some seriously depraved stuff on the internet, broadcast in from their cell phone carrier and that is not something the FCC can regulate.  Right now you can watch the restrained broadcasts of the “Big Four”—ABC, NBC, CBS and Fox—or just flip to the rest of your cable or satellite dial and watch uncensored nudity and violence on HBO, Showtime, or far less censored “filth” on FX or Comedy Central.  And seriously, who doesn’t have cable or satellite television these days?  And you think of those realities and you wonder what, if any, good does it do to treat broadcast differently from everything else.  And lawyers know that when that kind of thing starts happening, when one part of the law is different from the rest in a way that makes no logical sense, the law is getting ready to change.

And that is all background so that you understand why this passage in FCC v. Fox is so important:

It is necessary to make three observations about the scope of this decision. First, because the Court resolves these cases on fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy. It is argued that this Court’s ruling in Pacifica (and the less rigorous standard of scrutiny it provided for the regulation of broadcasters, see 438 U. S. 726) should be overruled because the rationale of that case has been overtaken by technological change and the wide availability of multiple other choices for listeners and viewers. See, e.g., ABC Brief 48–57; Brief for Respondent Fox Television Stations, Inc., et al. 15–26. The Government for its part maintains that when it licenses a conventional broadcast spectrum, the public may assume that the Government has its own interest in setting certain standards. See Brief for Petitioners 40–53. These arguments need not be addressed here. In light of the Court’s holding that the Commission’s policy failed to provide fair notice it is unnecessary to reconsider Pacifica at this time.

Lawyers know that phrasing like that is a shot across the bow.  It is not a guarantee, but it is a very often a sign that the Supreme Court is ready to do exactly that—to overturn Pacifica.

And that would be a very good day for freedom of expression.

But the sad thing there is that the victory would not be won by a newfound respect for the Constitution and what its words actually mean.  It will instead be the law evolving again in the way the common law did, not by a change in anything external to the judiciary, but by a change in the collective minds of that branch.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.