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Tuesday, January 24, 2012

Predicting FCC v. Fox: Counting the Oral Argument Tea Leaves

Political science research suggests that the more questions the Supreme Court asks a party at oral argument, the more likely that party is to lose. The tenor of the questions counts, too: hostile questions help predict hostile outcomes. (For some of the research, see Sarah Shullman here, and Timothy Johnson et. al. here). Moreover, a study by Epstein, Landes and Posner suggests, "Justices are more prone to question at oral argument parties against whom they will vote than parties for whom they will vote."

With this in mind I examined and listened to the recent oral argument (1/10/12) in FCC v. Fox Television Stations et. al (docket 10-1293). When decided, Fox will be the first Roberts Court case directly involving the mainstream media, so it is highly significant for media lawyers and anyone concerned about press (and specifically broadcast) freedom. The Fox case asks not only whether the FCC's policy against use of "fleeting expletives" violates the First Amendment, but also whether the entire indecency enforcement regime for broadcasting is unconstitutional. [My analysis of the oral arguments is below.]

Predicting the outcome of Fox is a challenge. Only eight justices will decide the case, because Justice Sotomayor is recused. In the Fox case's prior trip to the Supreme Court for resolution of whether the FCC's adoption of the fleeting expletives policy was arbitrary and capricious, Justice Thomas already clearly signalled his belief that Red Lion and Pacifica, which underpin the FCC's authority to regulate broadcast content in ways that would be unconstitutional in other media, are no longer valid; in that same case, Justice Ginsburg signalled her belief that the FCC's fleeting expletives policy exceeds the bounds of permissible regulation of indecency outlined in Pacifica, and she questioned whether cultural changes might have undermined the entire edifice of indecency regulation constructed pursuant to Pacifica. In light of this, getting the three additional votes necessary to strike down the current system of broadcast indecency regulation does not seem like such an uphill battle.

The oral argument tea leaves, however, arguably aren't as auspicious for dramatic change. Oral argument was an hour long. The Solicitor General Donald Verilli argued for the FCC for 26 minutes initially and then spoke four minutes in rebuttal. Verilli was questioned by Kagan (3+1 during rebuttal), Scalia (3+1 during rebuttal), Kennedy(2), Ginsburg(4+1 during rebuttal), Breyer(1), Alito (1), for a total of 17 questions during his initial argument and his rebuttal. [Note: I didn't count it as a separate question if a Justice asked a clarifying questions incident to his/her first question; for example, Justice Breyer asked only one question of the SG, but he pursued it for some time. Also, I counted as "questions" instances in which the Justice interjected with a statement, because the advocates felt bound to respond or react to these statements. Obviously, however, I made a few judgment calls at the margin that some might disagree with.].

This evidence might signal that Kagan, Scalia, and Ginsburg are highly skeptical of the SG's arguments, and perhaps more prone to vote against him. At least in the case of Kagan and Ginsburg, my bet is that they will vote against the FCC, though whether on narrow or broad grounds is harder to say. However, when one looks at the tone of the questions, there is a difference in the tone of Justices Kagan's and Ginsburg's questions and the tone of Justice Scalia's. Justice Kagan and Ginsburg both sound more skeptical in their questions of the SG's arguments on behalf of the FCC than does Scalia. For example, Justice Kagan kicks off the questioning of the SG with "But, General Verilli, it seems to me that this contract notion of yours can only go so far." (emphasis mine). Justice Ginsburg's first question to the SG, which is the fourth question from the bench, refers to the FCC as "the censor" and asks about the "appearance of arbitrariness" of its indecency decisions. Justice Scalia, on the other hand, seems to be asking a question to help the SG sort out whether regulation of broadcast indecency is justified by the history of regulation, by the acceptance by broadcasters of free and exclusive use of public spectrum, or by precedent and whether the FCC's context based approach to identifying indecency is unconstitutionally vague. Justice Kenndy also questions the SG, but in his question, he seems to be reaching out to "assist" the SG to articulate his best argument for a broadcast "safe haven." The SG takes the cue and seizes upon the lifeline Justice Kennedy has thrown him, and the Justice follows up with more assistance; finally, Justice Kennedy's point is even seized by Justice Scalia, who says "Sign--sign me up as supporting Justice Kennedy's notion that this [regulation of indecency on broadcast airwaves] has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court . . . these are public airwaves, the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth." Justice Ginsburg, for her part, enters the fray (cutting off the SG) noting that the words that the FCC is regulating are "in common parlance today" and "the children are not going to be shocked by them the way they might have been a generation ago."

Carter Phillips argued the case for Fox. Phillips was questioned by Roberts (3); Kagan (2); Alito (3); Breyer (1); Scalia (2); Kennedy (1), for a total of 12 question. Then Seth Waxman argued on behalf of ABC and others regarding the FCC's sanctions on the broadcasting of nudity and was questioned by Roberts (3); Breyer (4 total with a very extensive follow-up on one of the questions); Kennedy(2); Scalia (1); Alito (1), for a total of 11 questions. It is noteworthy that Philllips and Waxman were asked a total of 23 questions, 6 more questions than the SG was asked in the same amount of time. It is also noteworthy that Chief Justice Roberts took a very active role, asking six questions of the two advocates, even though he asked no questions of the SG. Chief Justice Roberts also tipped his hand in the manner of his questioning. Roberts stated at one point: "People who want to watch broadcast where these words or expose their children to broadcasts where these words are used, where there is nudity, there are 800 channels where they can go for that. All we are asking for, what the government is asking for, is a few channels where you can say I'm not going to --they are not going to hear the S word, the F word. They are not going to see nudity." It seems very clear from this "question" that the Chief Justice is actually stating an argument he finds persuasive. At another point, the Chief Justice also interjects to support Justice Scalia's criticism that Mr. Waxman's argument regarding selective enforcement of its nudity prohibition is "not a very powerful argument" given the number of broadcasters sanctioned "over 85 years." In addition to all of this, Justice Breyer made it relatively clear in his questioning that he was troubled by the FCC's actions in these cases but was looking for a way NOT to overrule Pacifica. At one point, Justice Breyer even asks Mr. Waxman: "Does this case in front of us really call for the earthshaking decision that you all have argued for in the - - in the briefs? [overturning Pacifica]" (emphasis mine)

Based on this analysis, it appears as if Roberts, Alito, Scalia are in no hurry to overturn Pacifica. Kennedy and Breyer are a little harder to predict, but I wouldn't bet on them overturning Pacifica, either. With regard to Alito, this is certainly no surprise, for he voted in favor of government restrictions on speech in the "funeral protest" case of Snyder v. Phelps and the "crush video" case of U.S. v. Stevens, and thus indicated his support for regulation of offensive speech. But Chief Judge Roberts has previously voted against government interference in the marketplace of idea in cases like Citizens United v. FEC, U.S. v. Stevens, and Snyder v. Phelps. Furthermore, Justice Scalia wrote for the Court in the "violent video games" case of Brown v. Entertainment Merchants Ass'n, which might be labelled a "new media" First Amendment case decided by the Roberts Court: not only did the Court there strike down California's attempts to prohibit the sale of "violent video games" to minors, but it also flatly rejected the argument that any "medium-specific" characteristics of the games, such as their interactive or immersive nature, justified softening First Amendment prohibitions on content-based regulation. Justice Scalia even wrote that although the First Amendment exists "to protect discourse on public matters," full First Amendment protection extends to entertainment media since "we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try." How can the discrepancy between these cases and the Justices' likely approach to FCC v. Fox be reconciled? I can explain, but it will take me a lot longer than this blog post to do so.


Posted by Lyrissa Lidsky on January 24, 2012 at 04:22 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky | Permalink


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Actually, I may have acquiesced too soon. Wouldn't it take five votes to overturn Pacifica, but only four to leave in place the Second Circuit's holding that the fleeting expletives policy is unconstitutional?

Posted by: Lyrissa | Jan 26, 2012 6:23:29 PM

You are absolutely right.

Posted by: Lyrissa | Jan 25, 2012 5:41:41 PM

Good post, but per your para. 3, the broadcaster respondents only need two "additional votes" (to total four Justices), not "three additional votes," since they won below.

Posted by: guest | Jan 25, 2012 1:26:05 PM

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