Fox Indecency Case Seen as Unlikely to be Reheard
The full appeals court whose three-judge panel threw out an FCC decision to censure Fox for broadcasting unscripted swear words on 2002 and 2003 music awards shows probably won’t agree to rehear the case, said law professors and industry lawyers with indecency expertise watching the proceeding. The six we surveyed said the chances of the 2nd U.S. Court of Appeals in New York granting the commission’s request are low, as with most such requests for en banc rehearings. They said the ten judges may not be moved by FCC arguments that panel’s July ruling conflicts with the Supreme Court decision which sent the case back to the 2nd Circuit, the high court’s landmark 1978 Pacifica indecency ruling and other cases and would hobble the commission’s ability to regulate indecency. The FCC’s request, made Thursday, was expected (CD Aug 25 p3).
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July’s ruling “raised serious concerns about the Commission’s ability to protect children and families from indecent broadcast programming,” FCC General Counsel Austin Schlick said. “The Commission remains committed to empowering parents and protecting children, and looks forward to the court of appeals’ further consideration of our arguments.” The en banc request “is an important step in the right direction,” said President Tim Winter of the Parents Television Council. It criticized the commission’s contention to the 2nd Circuit this week, in an indecency case about ABC’s NYPD Blue, that the Fox ruling has wide implications.
"Rather than limiting its decision to the Commission’s decision regarding the Billboard Music Awards broadcasts” at issue in Fox, Judges Rosemary Pooler, Peter Hall and Pierre Leval struck down the FCC’s indecency policy altogether, the government’s filing said, citing the Fox ruling. “The panel’s decision strikes at the heart of the longstanding context-based approach to indecency enforcement that -- as the Supreme Court confirmed in this very case -- was ’sanctioned in Pacifica,'” it continued. The three judges “all but ignored the specific broadcasts at issue and instead focused on other FCC decisions that it believed rendered the Commission’s underlying context-based framework, as summarized in the 2001 Industry Guidance, unconstitutionally vague."
"The panel’s decision appears effectively to preclude the Commission from enforcing federal broadcast indecency restrictions unless it can develop a new policy that deemphasizes context (in order to survive the panel’s vagueness analysis), and yet simultaneously respects the Supreme Court’s endorsement of a contextual analysis,” said the filing. “Rehearing, or in the alternative, rehearing en banc is warranted in light of the seeming impossibility of that task, the unnecessary breadth of the panel’s ruling, and the multiple conflicts with decisions of the Supreme Court, this Court, and the D.C. Circuit that have been created by the panel’s misapplication of constitutional vagueness analysis.” Schlick and Assistant Attorney General Tony West, also on the NYPD Blue brief, were among those who signed Thursday’s filing, http://xrl.us/bhxep3.
Under 2nd Circuit rules, an en banc rehearing would require a majority vote by the 10 active judges, at the request of one of them or Leval, a senior judge, said broadcast lawyers with TV-station clients. If Hall and Pooler, active judges, vote against rehearing the case they decided, the votes of at least six of the other eight active judges would be needed. The FCC’s position doesn’t seem to have enough votes, broadcast lawyers and law professors said. Decisions on en banc rehearings generally are made quickly, since briefing schedules are shorter than those for initial appeals, a veteran broadcast lawyer said.
"If I was an FCC lawyer, I would try to get en banc review, too,” said Professor Jerome Barron of George Washington University, who teaches communication law and has written about indecency. “It seemed to me that the Fox decision was a thoughtful and reasonable decision. I read it as keeping the old rule in effect. I think all it says is the new rule violates the First Amendment. If I'm right in that, I don’t see why there would be a need for an en banc hearing.” Nor does Professor Angela Campbell of Georgetown University’s Institute for Public Representation. “The FCC’s major claim -- that the decision conflicts with Pacifica -- has been made and rejected before,” she told us. “Had the FCC considered the context of the program in which the language was used in Pacifica, it would have been difficult for it to have reached the result it did,” she wrote in a paper
"I don’t think the panel is going to rehear it,” said TV attorney Harry Cole of Fletcher Heald. “The deck is procedurally stacked against these things going up” to the en banc level. The FCC probably appealed to the 2nd Circuit instead of going straight to the Supreme Court, as the commission for the initial Fox case did when Kevin Martin was chairman, to “stall” for time “because they do not want to go to the Supremes because if they go to the Supremes they run the risk that not only would Pacifica be thrown out but Red Lion would be thrown out,” said Cole. The high court in Red Lion held that the scarcity of spectrum gives the FCC authority to regulate broadcast speech.
The FCC filing suggests that the commission wants the flexibility to consider the context in which a curse was uttered to determine whether it’s indecent, whereas the policy the FCC is defending allowed it to find any fleeting utterance indecent, said broadcast lawyer Peter Guttman of Womble Carlyle. “That just seems inconsistent with the notion of contextual analysis if you have a per-se rule like that,” he said. “If the commission can’t provide broadcasters with some sort of definition or some sort of guidance [of] any flexibility to consider context, it doesn’t really help broadcasters very much in planning their programming or avoiding the pitfalls.”