By Patrick A. Trueman
Special Counsel to the Alliance Defense Fund
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The U.S. Supreme Court just upheld the FCC’s policy change on “fleeting expletives” used on broadcast TV during primetime. See, e.g., FCC v. Fox Television Stations, Inc. et al, No. 07–582 (U.S. April 28, 2009); Supreme Court Backs F.C.C. on Indecency Rule, New York Times, David Stout, 4.28.2009
The decision is a victory for those who oppose indecency on the airwaves. However, Justice Thomas writes that the Supreme Court case of Pacifica (upholding the constitutionality of indecency law) was not decided correctly:
…the Court (… in Pacifica) noted that “broadcasting . . . has received the most limited First Amendment protection.” 438 U. S., at 748. The Court also emphasized the “uniquely pervasive presence” of the broadcast media in Americans’ lives and the fact that broadcast programming was “uniquely accessible to children.” Id., at 748–749.
This deep intrusion into the First Amendment rights of broadcasters, which the Court has justified based only on the nature of the medium, is problematic on two levels.
First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transitory facts, e.g., the “scarcity of radio frequencies,” Red Lion, supra, at 390, to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” District of Columbia v. Heller, 554 U. S. ___, ___ (2008) (slip op., at 63). In breaching this principle, Red Lion adopted, and Pacifica reaffirmed, a legal rule that lacks any textual basis in the Constitution.
Thus, the days of FCC indecency enforcement may be limited. (They may be limited anyway under Pres. Obama.) Are there five justices left on the court who will maintain Pacifica when this case (or a similar one) is returned to the high court? Breyer has been good on some related issues but I would not count on him. I count four justices–but that number includes Kennedy and who wouldn’t be concerned about him? Justice Stevens, the author of Pacifica, issued a stern warning in today’s opinion:
Moreover, the Court incorrectly assumes that our decision in FCC v. Pacifica Foundation, 438 U. S. 726 (1978), decided that the word “indecent,” as used in 18 U. S. C. §1464,1 permits the FCC to punish the broadcast of any expletive that has a sexual or excretory origin. Pacifica was not so sweeping, and the Commission’s changed view of its statutory mandate certainly would have been rejected if presented to the Court at the time.
