Oral Argument Preview FCC v. Fox 2012

FCC v. Fox 2012 Supreme Court Simulation Oral Argument Preview

I. Facts

Basic policy (from Fox v. FCC, 613 F.3d 317, 330, 2010, quoting Industry Guidance on the Commission's Case Law Interpreting 18 U.S.C. § 1464, 16 F.C.C.R. 7999, 2001):

The FCC set forth its indecency policy in its 2001 Industry Guidance, in which the FCC explained that an indecency finding involved the following two determinations: (1) whether the material “describe[s] or depict [s] sexual or excretory organs or activities”; and (2) whether the broadcast is “patently offensive as measured by contemporary community standards for the broadcast medium.” . . . Under the policy, whether a broadcast is patently offensive depends on the following three factors: (1) “the explicitness or graphic nature of the description or depiction”; (2) “whether the material dwells on or repeats at length” the description or depiction; and (3) “whether the material appears to pander or is used to titillate, or whether the materials appears to have been presented for its shock value.” 

Focus on Remand Order of November 6, 2006 (p. 323-324) and policy statements and events leading up to this point.

Be familiar with the following incidents and the FCC responses:

Bono, Golden Globes, 2003 – puts networks on notice

*Cher, Billboard Music Awards 2002

*Nicole Richie, Billboard Music Awards 2003

NYPD Blue – dismissed on procedural grounds

Early Show interview with Survivor contestant

Saving Private Ryan

(Note: FCC abandoned its defense of the “profanity” policy.

II. Issue:

Does the FCC's policy on fleeting expletives as expressed in the Remand Order of November 6, 2006, which includes notices of apparent liability against two Fox programs, violate the freedom of expression protected by the first amendment?

(Note we are focusing on first amendment, not fifth amendment.)

III. Holding

Justices voting with the majority should indicate their holding (as if they were writing the majority opinion). Dissenting justices and attorneys should indicate their advocated holding.

IV. Reasoning (from Fox's point of view – pro-speech)

A. Standard of review

1. Content-based regulation of expression invokes strict scrutiny (see Reno v. ACLU).

Policy must be the least-restrictive means of achieving a compelling government interest.

Explain why FCC policy is content-based.

2. Alternatively, broadcast media have been regulated according to intermediate scrutiny (see FCC v. League of Women Voters, 468 U.S. 364, 1984, cited in Fox v. FCC, 17).

Policy must be narrowly tailored to achieve a substantial government interest.

See also, Pacifica, Red Lion for rationale of treating broadcast media differently):

scarcity of airwaves

public licensing

duties to public

broadcast media are “uniquely pervasive” and “accessible” to children

treated differently than print, cable, Internet.

Response of broadcasters:

Most people get broadcast networks through cable or satellite.
With video via Internet, cable and satellite, broadcast media are no longer “uniquely pervasive” or “uniquely accessible.”
Ratings system, V-chip and other blocking devices make broadcast media less accessible to youth.

B. Government Interest

Does the government have a substantial (or compelling) interest in regulating fleeting expletives?

Protecting children from indecent material (see Reno, Pacifica, Brown v. EMA) could be seen as compelling in theory, but . . .

Where is the evidence of harm?

Are fleeting expletives more or less harmful than other allowed expletives?

How does exposure of children to fleeting expletives compare to exposure to violent content or sexual content?

C. Narrowly tailored

1. Does the FCC policy restrict more expression than is necessary to achieve its interest? (Is the FCC policy the least restrictive means of achieving its interest?)

2. Vagueness in definitions of indecency. Too much power in hands of FCC but FCC’s determinations are subjective. FCC does not provide adequate notice. See discussion on pp. 330-332. E.g. F-word not always sexual in meaning.

Arbitary enforcement. Why are some uses of expletives acceptable? Compare Saving Private Ryan or a news interview. Exceptions are not applied consistently.

Vagueness also raises the risk of discriminatory enforcement.

3. Creates chilling effect – leads to self-censorship of protected speech.  Generates fear among local affiliates. E.g. 9/11 documentary not shown because of swearing by firefighters, Pat Tillman memorial service, candidate debate, etc. Could chill sports broadcasts. Chills discussion of sex as well, even when no expletives are mentioned.

4. Delay system with bleeping is not always effective for live broadcasts.

5. Vagueness indicates policy is not narrowly tailored.

6. Community standards test is oppressive in a national context.

7. What are less restrictive alternatives?

-Compare to previous policy that focused on repetitive utterances.

-Should be exceptions for non-literal uses (e.g. Bono at Golden Globes)

-Exceptions based on merits of works? (e.g. Saving Private Ryan) Doesn't this become subjective?

V. Reasoning from FCC's point of view – pro-government)

A. Standard of review – intermediate scrutiny. See IV. A. 2 above.

Pacifica still applies:
Broadcast media are most easily accessible to children.
Availability of video via cable and Internet means adults have other avenues to access indecent material.
V-chips don’t always work for TV and don’t work for radio at all.

B. Substantial government interest

Protecting children from exposure to indecent and profane material (Reno, Pacifica)

Courts sometimes concede this point for the sake of argument.

C. Narrowly tailored. New policy does not restrict more speech than is necessary.

1. Not vague: F-word and s-word are presumptively indecent. F-word: inescapable sexual connotation, extremely, graphically vulgar. S-word: Excretory connotation, etc. Fox knew the words were indecent and edited them out of broadcasts shown later in other time zones.

2. Flexible policy is better than a list. Allows for more speech by enabling exceptions and discretion. An inflexible approach would be underinclusive; a simple list makes it easier to evade the policy.

3. Fair notice was provided. Networks put on notice but not fined after Bono incident.

4. Exceptions can be made as needed: bona fide news and artistic necessity (e.g. news, Saving Private Ryan). FCC will consistently evaluate context.

5. Questionable material can be shown during safe harbor period (after 10 p.m.)

6. V-chip wouldn’t have worked in for the awards show broadcasts.

VI. Policy and normative implications – pro & con

Freedom of expression vs. community standards, morals

Censorship – effect on creators, viewers, business

Paternalism – should government decide for us?

Vagueness of test leading to self-censorship of protected speech

If this policy is overturned, are there no limits on broadcast TV short of obscenity?

Are there other ways for parents to address indecency? (E.g. blocking technology)

Financial consequences for affiliates

Others?