FCC v. Fox Television Decided Narrowly on Lack-of-Fair-Notice Grounds

Right now, over-the-airwaves radio and television broadcasting is the stepchild of First Amendment law — a medium that the Court has viewed as uniquely less protected when it comes to content-based restrictions. Most significantly, in FCC v. Pacifica Foundation (1978) the Court upheld limits on vulgarity in broadcasting that it would have (and has) struck down in other media, and in Red Lion Broadcasting v. FCC (1969) upheld the “Fairness Doctrine” that requires broadcasters to give access to rival views even though much the same policy has been struck down for other media. The rationales that the Court has given for this (the supposed greater scarcity of the spectrum, the government’s consequent ownership of the spectrum, the supposed greater intrusiveness of broadcasting in the home, the supposed greater accessibility of broadcasting to children, and the history of regulation) have been sharply criticized since then, and one Justice (Justice Thomas) has expressly said that he would reject this less favored treatment. Moreover, the Court has declined to extend the broadcasting cases to other media, such as the Internet and cable television. Many observers thought that this Term’s decision in FCC v. Fox Television Stations, Inc. would deal with this different treatment, whether to sweep it away, to narrow it, or to reaffirm it.

This did not happen. Instead, the Court decided the case on narrow grounds: The incidents being litigated involved only brief instances of vulgarity or nudity, and at the time they happened FCC policy was that only “deliberate and repetitive use” was punishable “indecency” (though the policy had later been revised). Because of this, holding the broadcasters responsible violated the Due Process Clause “void for vagueness” doctrine, which in this instance may best be seen as a “fair notice” doctrine: “A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” And here there was no fair notice not because the policy as of the time of the broadcasts was ambiguous, but because it seemed to be pretty unambiguously inapplicable to the broadcasts. The Ex Post Facto Clause applies only to criminal punishments, not civil findings of liability (and, in one instance, a civil fine) such as those involved in this case. But this “fair notice” requirement provides some protection along those lines in this situation.

Why did the Court not reach the First Amendment question? It’s possible that this is because the Justices simply thought that it’s good to decide such cases on the narrowest possible grounds, and many past opinions have indeed said that the Court should opt for such narrow decisions — especially in constitutional cases — whenever possible. But the Court agrees to hear a tiny fraction of the cases that it’s asked to take, and it generally takes them precisely to render decisions that are broadly applicable and thus worth the Court’s time; as a result, many other past opinions have not opted for the sort of narrowness we see here. [UPDATE: Moreover, more than five months have elapsed since oral argument, and if the Justices just wanted to write a narrow opinion like this, they probably could have done it pretty quickly, especially given their unanimity on the narrow lack-of-fair-notice question.]

Here’s a guess on my part: Justice Sotomayor was recused from this case because she was a judge on the Second Circuit when that circuit was considering it, and must have in some measure participated in some en banc matters related to the decision of the case. This left open the possibility of a 4-4 split, which wouldn’t have set any nationwide First Amendment precedent in any event. (It would have simply left the lower court decision standing as Second Circuit precedent, without adding any Supreme Court precedent.)

Justice Ginsburg in this very case wrote a short concurrence to simply say that she thought Pacifica was wrong; Justice Thomas expressed the same view when the case was before the Court a few years ago on an administrative law matter; and it seems likely that Justice Kennedy — who generally takes a broad view of the freedom of speech — and Justice Kagan would have been on that side. But Chief Justice Roberts and Justices Scalia, Alito, and Breyer might well have been in favor of preserving some aspects of the Pacifica regime. Some of the conservatives on the Court asked questions at oral argument that hinted at such a view, the view seems consistent with some of the conservative Justices’ cultural conservatism, and Justice Breyer generally has a relatively narrow view of the freedom of speech and seems to be open to what he sees as modest speech regulations imposed by responsible government officials aimed at serving worthy, relatively viewpoint-neutral goals.

Now I would guess that, in a case in which Justice Sotomayor participated, she — alongside Justices Ginsburg and Kagan, who also seem to come from the wing of the liberal movement that is generally civil libertarian on free speech questions — would take the Brennan/Marshall speech-protective from Pacifica, and would be joined by Justices Kennedy and Thomas, who on free speech issues tend to fall into the more libertarian side of the conservative camp. Pacifica would then be reversed, and perhaps so would be the broader proposition that the government has extra power to control radio and television over-the-airwaves broadcasting. But in this case, with Justice Sotomayor not participating, the Justices may have split 4-4, thus leaving the narrow decision the only one available.

Of course, I stress that this is sheer speculation, and it may be that the Justices simply didn’t want to deal with the bigger question when a narrower solution was available. Take it for what it’s worth, or, perhaps more safely, view it as worth every penny you paid for it.