Supreme Court, in ABC and Fox, Seen Focusing on if Pacifica Still Applies

The Supreme Court doesn’t usually limit the issues when it grants petitions for a writ of certiorari, so it’s an important distinction when it does, said Senior Vice President Andrew Schwartzman of the Media Access Project. “In limiting the issue, they've made plain that they want to focus on the indecency policy.” MAP sided with broadcast networks before the high court on behalf of the Center for Creative Voices in Media and the Future of Music Coalition. The court already ruled on the Fox case, finding the FCC followed administrative procedure in finding swearing by Cher and Nicole Richie on the 2002 and 2003 Billboard Music Award shows was indecent. The 2nd U.S. Circuit Court of Appeals in New York then decided the case against the commission on constitutional grounds, and the 2nd Circuit also decided against the regulator on ABC, involving the showing of a woman’s bare buttocks during 2003 on NYPD Blue.

The current cases, consolidated into one under docket 10-1293, may be the best shot in some time for broadcasters to no longer face indecency rules, because there’s a chance the court will rule that Pacifica is outdated, said current and former industry lawyers. “Pacifica’s days are numbered, because the factual predicate that the court relied on is no longer true,” said former broadcast executive Preston Padden, who now teaches communications law at the University of Colorado. “I think this case will be the one that does it.” Pacifica was based on the premise that broadcasting is uniquely pervasive and so kids can be exposed to it, which no longer is the case, said Padden and industry lawyers.

There’s still a “critical role” for groups like the Parents TV Council (PTC) to “keep the media honest” about what’s aired, by public education and through talking to advertisers, and they can do that through public education campaigns and through interaction with advertisers, Padden said. “I think that’s appropriate and desirable,” he said. “But I think the FCC’s role in this is about to come to an end.” Broadcast networks “make our case for us every time they tell advertisers the medium remains uniquely pervasive and highly accessible to children,” PTC President Tim Winter said. The group had no further comment on the legalities at stake.

The FCC’s “pleased” the high court will review the 2nd Circuit rulings that “blocked” the commission’s broadcast indecency policy, General Counsel Austin Schlick said in a written statement. “We are hopeful that the Court will affirm the Commission’s exercise of its statutory responsibility to protect children and families from indecent broadcast programming.” Fox looks forward “to the Supreme Court’s review of the significant constitutional issues in the case” and hopes it agrees that the FCC’s “indecency enforcement practices trample on the First Amendment rights of broadcasters,” a spokesman said. ABC continues to believe the 2nd Circuit ruled correctly, “and we will argue that before the court” that the decision should be upheld, a spokeswoman said. The NAB backs “a constitutional review of the FCC’s enforcement of program content rules,” a spokesman said. CBS and NBC had no comment.

"Pacifica for sure will be in the middle of the argument, since that reflects the only Supreme Court precedent on the regulation of broadcast indecency,” said industry lawyer Harry Cole of Fletcher Heald. But broadcast attorneys and others said there’s reason to think that Red Lion still may come up at the high court, because much of what underlies that decision is now outdated. In Justice Clarence Thomas’s dissent in the original Fox case in 2009, the jurist said he might be willing to look critically at both Pacifica and Red Lion if Fox came back to the Supreme Court, noted Cole and others. “While I've always thought it was a long shot that the Supreme Court would use this case to just declare that Red Lion is no longer good law, I don’t think the fact that they sort of took that issue off the table in granting cert ends the matter,” said TV-station lawyer Scott Flick of Pillsbury. “A decision that, for example, says government can no longer treat broadcasters as second-class citizens under the First Amendment would have a broad impact beyond the indecency context,” he said. “If that were to happen, we could see Red Lion meet its demise not through a single grand pronouncement by the court, but through the steady erosion of various regulations that implement the government’s authority under” that case, Flick added. “The court doesn’t have to explicitly disturb Red Lion for a similar result to eventually occur from a sweeping First Amendment decision in this case.”

The high court may have set itself up to revisit Red Lion by framing how it will hear the ABC and Fox cases in a way that’s similar to how both those networks sought Supreme Court review, said Director Angela Campbell of Georgetown University’s Institute for Public Representation. It participated in Fox before the Supreme Court, arguing on behalf of kids’ groups that the court didn’t’ need to decide on Red Lion to rule on the case. “I'm reading the fact that they took the broader question framed by ABC, as opposed to the narrower question framed by the FCC,” Campbell said. “I think the court is just open to hearing other arguments other than just on the vagueness and that they're at least open to considering the question of Pacifica and Red Lion.”