FCC v. Fox: The End of Pacifica?

This term, the Supreme Court will have the opportunity to overturn nearly three decades of broadcast speech precedent when it hears FCC v. Fox Television Stations (II).

In 2009, the Court upheld the Federal Communications Commission’s “fleeting expletives” policy that allowed the FCC to sanction networks that broadcast even single, isolated utterances of the F-word and S-word. The Court’s 5-4 ruling in FCC v. Fox (I) depended on whether the FCC’s modification of its longstanding rule that “repetitive use… is requisite to a finding of indecency” was “arbitrary, capricious, [or an] abuse of discretion” under the Administrative Procedure Act.

However, the Court foresaw a facial challenge to the FCC’s indecency-enforcement regime. Justice Scalia’s majority opinion hints that the policy’s ” lawfulness under the Constitution is a separate question to be addressed in a constitutional challenge.” Justice Thomas’ concurrence is a more transparent invitation to the networks, bluntly criticizing the “questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case… Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.”

After remand to the Second Circuit, FCC v. Fox (II) is now back before the Supreme Court to decide the constitutional question of whether the FCC’s rules violate the First Amendment.

Since FCC v. Pacifica, the FCC has been able to ban the broadcasting on public airwaves of “language that describes sexual or excretory activities or organs in terms that are patently offensive as measured by contemporary community standards at times of the day when children are likely to be in the audience.” Pacifica owned a radio station that had broadcast a George Carlin monologue, in which he described and repeated seven “Filthy Words” (“shit, piss, fuck, cunt, cocksucker, motherfucker, and tits”). Even in 1978, there was only a bare 5-4 majority upholding the FCC ban. The plurality opinion by Justice Stevens noted that broadcast media has less First Amendment protection for two reasons: (1) Broadcast media has a uniquely pervasive presence, confronts the citizen in the privacy of one’s own home, and due to channel-flipping (or tuning in and out, on a radio) a listener cannot insulate himself from indecent speech. (2) Broadcasting is uniquely accessible to children.

The two-member concurrence authored by Justice Powell gives lexical weight to the latter justification, writing that “[d]uring most of the broadcast hours, both adults and unsupervised children are likely to be in the broadcast audience.” Interestingly, as Breyer reminds us in Fox, the Powell concurrence also noted that Pacifica “does not speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from…verbal shock treatment” (my emphasis).

FCC v. Fox (II) gives the Court the occasion to review Pacifica in light of modern technology and changing factual assumptions, as the Second Circuit’s opinion and Thomas’ concurrence urge. Red Lion‘s rationale for regulating broadcast media, relied upon in Pacifica, to mandate a “fairness doctrine” was the “scarcity of radio frequencies.” Yet evidence suggests that the broadcast spectrum is considerably less scarce today, and with digitization broadcast media occupy even less spectrum space.

Another apparent change is broadcast media’s diminishing role in conveying information. A plethora of cable channels, only a click of the remote away, can expose children in a second to what the FCC would seek to censor. The unregulated Internet, Facebook, and streaming video (including TV shows) can instruct children in the nuances of indecency far faster than watching television could in the 1970s. Ought the FCC seek to censor broadcast media, limiting speech for adults, when there is no real countervailing benefit?

A third innovation is the V-chip, which by FCC rules has come pre-installed in every television set 13-inches or larger since 2000, and also comes with every digital-converter box for those who continue to receive their signal over the airwaves. The V-chip enables parents to restrict what their children watch based on a content rating (e.g. TV-PG, TV-14, TV-MA). In United States v. Playboy the Supreme Court found that the government failed to show that a viewer’s ability to order signal blocking on a household basis was an ineffective alternative to requiring cable operators to fully scramble sexually-oriented programming. That logic may be applied to the similar opportunity for parents to block indecent content from “unsupervised children”, and may undercut a central premise of the Court’s holding in Pacifica. Indeed, a ruling overturning Pacifica based on the availability of of a less restrictive V-chip alternative may preclude any content-based regulation by the FCC.

Stay tuned for what may be the biggest free speech case of the year.