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Thursday, June 21, 2012

SCOTUS punts on broadcast indecency

The Supreme Court unanimously held that the FCC could not enforce its new "fleeting expletives" policy as to Cher and Nichole Ritchie at the Billboard Music Awards and a butt shot on NYPD Blue, but not on First Amendment grounds. It held that the FCC had not given the networks sufficient notice of the new policy or that these broadcasts were unlawful, making it unconstitutioanlly vague as applied. The Court explicitly did not consider the First Amendment or the continued vitality of Pacifica, but told the FCC and the lower courts that they are free to make and remake policies and consider their constitutional validity.

Justice Ginsburg concurred only in the judgment to argue that Pacifica should be reconsidered. Interestingly, she cited to Justice Thomas' concurring opinion in the prior Fox case suggesting the same thing. But Thomas stuck with the majority opinion.

Quick Update: Interesting timing, because just Tuesday night, ABC cameras caught Dwaye Wade repeatedly using "mother-fucking" or "mother-fucker" during the post-game celebration following the Miami Heat's win in Game 4. Does ABC have notice of the policy? Or were things sufficiently in limbo until 10:30 this morning that the FCC only can enforce the policy against broadcasts from now forward?

Less Quick Update # 2: Eugene Volokh floats a theory I thought about this morning: There were four votes to overturn Pacifica, but with Justice Sotomayor recused (she was on the Second Circuit when this entire dispute first began), there was no fifth vote. Rather than affirming by a split 4-4 Court or reversing without a majority opinion or rationale, the Court sought the narrower grounds on which almost everyone would agree. Gene has Kennedy, Thomas, Ginsburg, and Kagan as wanting to overturn, but none of the Chief, Scalia, Breyer, and Alito willing to go along. I had Thomas and Breyer flipped, but on thinking on it, if this is what happened, Gene has the line-up right. I had forgotten that Thomas has shown himself to be more speech-protective in a lot of things, including indecency, while Breyer has shown a greater willingness to uphold agency regs that may impinge on speech.

Posted by Howard Wasserman on June 21, 2012 at 10:37 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink

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The majority opinion also said things like "f***ing" ... that sort of prejudges that the words are somehow forbidden.

Posted by: Joe | Jun 21, 2012 10:47:50 AM

Joe: I made a similar point following the oral argument. But the Court's approach to profanity is not new. There is, of course, the oral argument in Cohen v. California, where the the Chief warned Cohen's lawyer, Melville Nimmer, that the Court was familiar with the facts and not to dwell on them; Nimmer agreed to be brief about them, then described what the jacket said.

Of course, the Court is still ahead of the Michigan legislature, because vagina still seems to be OK.

Posted by: Howard Wasserman | Jun 21, 2012 11:06:45 AM

From the actual Cohen decision:

"On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words "Fuck the Draft" "

The "dirty words" opinion included "a verbatim transcript" that did not edit the words in question.

Posted by: Joe | Jun 21, 2012 11:21:57 AM

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