Can the justices overturn Pacifica and keep a safe harbor?

On January 10th, the Supreme Court heard oral argument in FCC v. Fox Television Stations (No. 10-1293).[1]  In this case, Fox among others is challenging the agencies fleeting expletives rule; the FCC began enforcing this rule more strictly in 2004.  The rule applies indecency standards and fines for spontaneous use of words normally banned from broadcast.  The FCC began to enforce this standard more stringently after complaints to the agency multiplied in the early 2000’s.  Fox, however, wants more than the fleeting expletives rule struck as arbitrary or infringing on First Amendment rights.  Fox wants the Court to overturn its decision in FCC v. Pacifica Foundation 438 US 726 (1978).[2]  At 28:55 in the oral argument, Justice Alito asked Carter Phillips, representing Fox, “Well, you want us to overrule a decision of this Court, Pacifica?”  Phillips responded with a simple, “Yes, Justice”.

Fox’s contention is that the rationale supporting Pacifica is no longer valid.  The scarcity argument no longer holds since there are a plethora of channels available to all via cable and satellite.[3]  Phillips argued that cable and satellite TV are “equally pervasive” in answer to Justice Alito’s question.  As to the “safe haven or safe harbor” argument, Phillips noted the many channels specifically directed toward children, tweens, and teens, as well as the existence of technological means to block offensive television; so the safe harbor exists with or without Pacifica.  Therefore, there should not be differing standards for broadcast TV and other media.

After listening to the oral argument, the Court seemed dubious of Fox’s argument or at least dubious of voting in favor of Fox.[4]   The justices seemed to lean towards upholding the authority of the FCC here; after all, Justice Scalia stated, “Sign me up as supporting Justice Kennedy’s notion…these are public airwaves, the government is entitled to insist upon a certain modicum of decency”  (23:41). Nonetheless, Fox’s argument that the changes in technology, access, and pervasiveness place the Pacifica holding in jeopardy of becoming anachronistic rings true.  If this is the case, how can the justices maintain the ‘safe harbor’ of broadcast television without using a technologically outdated precedent?

The answer may lie in the fact that the spectrum licenses granted by the government are “worth billions and billions of dollars.”[5]  If the licenses that are freely provided are equivalent to a government grant or expenditure, the Court’s decision in South Dakota v. Dole 483 US 203 (1987) could be the precedent the justices need.  The government does not need an elaborate scheme differentiating between radio, TV, cable, and satellite. This methodology is trapped in one point in technological time, with standards becoming outdated almost overnight.  However, the government is well within its rights and powers to place conditions on the receipt of monies.  If the justices want to maintain a few channels where they are assured that there will be no “f” bombs or nudity, then they may need to move away from the First Amendment jurisprudence and look elsewhere for their justification.  By conceptualizing the issue as a condition of the receipt of federal funds, they can effectively overturn Pacifica without losing the “modicum of decency” they wish to protect.

[3] Although Chief Justice Roberts suggests that this argument “…cuts both ways.”  29:41.

[4] This notion is supported by an analysis of the oral argument by Professor Lyrissa Lidsky (University of Florida Law School); She presented this analysis at the BYU Law Review Symposium on January 27, 2012.

[5] Solicitor General Verrilli at 23:03.

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Filed under Freedom of Speech, Assembly, and Association, The Power to Tax and Spend

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