Tag Archives: first amendment

My draft opinion holding up FCC v. Fox

My Administrative Law take-home midterm asked that I step into the shoes of a Supreme Court clerk and draft an opinion for FCC v. Fox, the fleeting expletives case. Naturally, because it is for Admin Law, it does not address the First Amendment issues that I think the Court should address. I liked the assignment since it made me think long and hard about the legal issues involved.

I. Draft decision upholding Fox, 489 F.3d 444 (2nd Cir. 2008), with regard to A.P.A. issues.

A. Statutory Interpretation

We find that the FCC impermissibly changed its interpretation of the term ‘indecent’ as used in the governing statute, 18 U.S.C. § 1464, which bars indecent content from broadcast radio and television.

In the order at issue, the FCC changed not only its policy toward indecent content but its interpretation of the term ‘indecent’ provided in the statute, 18 U.S.C. § 1464. As such, the Chevron v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984) framework governs our review of the Commission’s construction. Congress has delegated to the Commission the authority to â??execute and enforceâ? the Communications Act, 47 U.S.C. § 151, which provides the FCC with power to regulate indecent content on broadcast radio and television. The Commission has the power to deliver administrative sanctions, such as sending cease and desist orders or revoking licenses, 47 U.S.C. § 312, and also to assess criminal forfeiture penalties, 47 U.S.C. §503(b)(1)(D).

Chevron established a familiar two-step procedure for evaluating whether an agency’s interpretation of a statute is lawful. Nat’l Cable and Telecommunications Assoc. v. Brand X Internet Svc., 545 U.S. 967, 986 (2005). As a first step we ask whether the statute’s plain terms â??directly address the precise question at issue.â? Brand X at 986. If the statute is ambiguous on the point, we defer, at step two, to the agency’s interpretation so long as the construction is a â??reasonable policy choice for the agency to make.â? Id.

In the first step of the Chevron analysis, we look at whether the statute directly defines the term ‘indecent’ or if the term, as used, is ambiguous. The statute, 18 U.S.C. § 1464, states in full: “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both.” It is clear that Congress intended that no indecent language be used in radio communication but we find that indecent is not clearly defined thus leaving this portion of the statute ambiguous.1 The ambiguous nature of the term can be seen in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), in which the plurality opinion and concurrence had two different ideas about what qualified as indecent. Both felt the term meant â??patently offensiveâ? but differed in opinion about what qualified as such. The plurality opinion identified the plain meaning of indecent as â??merely referring to nonconformance with accepted standards of moralityâ? Pacifica at 741 and merely accepted that it was equivalent to patently offensive. The concurrence felt the term was more narrow, finding that the George Carlin monologue could be classified as “indecent” only because “the language employed is vulgar and offensive… [and] was repeated over and over as a sort of verbal shock treatment.” 438 U.S. At 757. (Powell, J., concurring). It is also through the ambiguous nature of the term indecent that the Commission’s rules operate and why it felt it necessary to change its policy as to what qualified.

We next proceed to step two of the Chevron analysis. If the statute is ambiguous on the point, we defer to the agency’s interpretation so long as the construction is a â??reasonable policy choice for the agency to make.â? Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps. Brand X at 972. If Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Brand X at 844. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute. When the legislative delegation to an agency is implicit, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. Brand X at 844. This is true, even when the agency is changing rules, policies, and how it interprets a statute. Chevron at 863. Such a change, however, must provide a reasoned analysis to depart from prior precedent.

Here, the Commission has an implicit delegation to fill the statutory gap with regard to what is indecent. Through that delegation, the Commission changed how it interprets the term indecent to have a broader meaning than it had used in the past. Previously, the Commission had held that language was indecent if used to depict or describe sexual or excretory activities. In the order at issue, the Commission broadened the meaning of indecent when it determined that all uses of the words â??fuckâ? (the “F-Word”) and â??shitâ? (the “S-Word”) in all contexts depict or describe such activity. Golden Globes Order, 19 F.C.C.R. 4975, 4978. This is the case, with a single, isolated non-literal utterance of the word. For example, Bono’s statement, â??really, really fucking brilliant,â? in reaction to winning a Golden Globe award is considered indecent, although his use of the word did not involve sexual or excretory functions. Golden Globes Order at 4975. As pointed out by the lower court, prior to the Golden Globes decision the FCC had consistently taken the view that isolated, non-literal, fleeting expletives did not run afoul of its indecency regime. Fox Television Stations, Inc. v. FCC, 489 F.3d 444,455 (2nd Cir. 2007).

We find that the Commission provided very limited reasoning as to its new, broader interpretation of the term indecent.2 Rather, it largely relied on its dismissal of previous interpretations of the term indecent as dicta and staff letters. It did provide some reason why it was changing policy with regard to how it would enforce the rule, however it did not discuss its new interpretation of the statute.3 The Commission simply announced that the “core meaning” of certain expletives is always indecent (Golden Globes at 4978), thus expanding the definition of the term indecent, although it had repeatedly held those same terms not indecent in the past.

B. Substantive Decision

Furthermore, we also find that the Commission failed to provide an adequately reasoned analysis for its change in policies and rules with regard to its its interpretation of the statute.

When an agency undertakes “a reversal of policy,” the APAâ??s mandate of reasoned decision making requires it to “adequately explain the reasons” for the change. Brand X at 981. Moreover, “[a]n agencyâ??s failure to come to grips with conflicting precedent constitutes an inexcusable departure from the essential requirement of reasoned decision making.” Ramaprakash v. FAA, 346 F.3d 1121, 1125 (D.C. Cir. 2003) (Roberts, J.).

Here, the Commission failed to provide a rational connection to between the â??first blowâ? theory its policies regarding fleeting expletives or provide adequate reasoning to explain away the conflict between its current policy to consider a fleeting expletive a harmful â??first blowâ? and the prior 30 years when it did not. As pointed out in the court below, there is no identifiable or judicially manageable standard provided by the Commission for the first blow theory underlying its policy change. The Commission held that it had changed the definition of what it considers indecent to include all uses of the F-Word and S-Word to protect viewers (including children) from taking the first blow when an expletive is used. It then provided exemptions for some uses of expletives but not others. For example, it provided exemptions for expletive used during the Early Show and the movie Saving Private Ryan but not for the same expletives used during the Billboard Music Award programs. In which case, the Commission’s justifications relying upon the â??first blowâ? theory were undermined. Viewers to each program still took the â??first blowâ? and were subjected to the offending word(s). In each case, the Commission subjectively determined whether that particular instance was more deserving of an exemption than the others. It is unclear what standards the Commission used for each determination.

The decision by the lower court is affirmed and this matter remanded to the Commission.

1We intentionally do not address any constitutionality in this portion of our opinion. We assume, for sake of argument that this statute and the Commission’s rules with regard to indecent content are are Constitutional.

2 This Court cannot substitute a reasoned basis for the agency action if the agency did not proffer it first. Courts confine evaluations of agency action to reasons articulated by the agency itself. State Farm at 50. See also Chenery (“the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. The reviewing court should not attempt itself to make up for such deficiencies; we may not supply a reasoned basis for the agency’s action that the agency itself has not given.”).

3 The dissent argues that the Commission did not change its interpretation of the statute and merely changed its enforcement policies based on how it had always defined the term indecent. The issue in this case is whether the FCC has adequately explained its decision to broaden the definition of “indecent” when it abandoned a standard limited to “verbal shock treatment” based on sexual or excretory function in favor of a presumption of indecency that must be rebutted with specific mitigating circumstances.

*Update:* The real Supreme Court disagrees with me. Justice Scalia, joined by 4 other justices, said that the FCC adequately followed the Administrative Procedures Act (A.P.A.) and declined to rule on the First Amendment issues. The matter was remanded to the appellate court, which can then reconsider the First Amendment issues.

Huckabee bristles at creationism query – Yahoo! News

It appears Mike Huckabee can’t win either way regarding religion. His far-right, evangelical base is likely to abandon him if he doesn’t say he supports creationism in public education. Those not on the far-right are likely to avoid him if he says religion-based education belongs in public schools. He doesn’t need to worry about me. I don’t intend to vote for him, regardless of his position on creationism in school.

Huckabee bristles at creationism query – Yahoo! News

Republican presidential candidate Mike Huckabee, a Southern Baptist preacher who has surged in Iowa with evangelical Christian support, bristled Tuesday when asked if creationism should be taught in public schools.Huckabee â?? who raised his hand at a debate last May when asked which candidates disbelieved the theory of evolution â?? asked this time why there is such a fascination with his beliefs.

… [H]he expressed frustration that he is asked about it so often, arguing with the questioner that it ultimately doesn’t matter what his personal views are.

“That’s an irrelevant question to ask me â?? I’m happy to answer what I believe, but what I believe is not what’s going to be taught in 50 different states,” Huckabee said. “Education is a state function. The more state it is, and the less federal it is, the better off we are.”

I disagree with Huckabee when he says his personal views are irrelevant. On the contrary, the personal opinions of Presidential candidates are always highly relevant regarding Constitutional rights and the controversies that follow them.

He’s absolutely right about education being a state function. Education has always been and should remain the domain of the states. The Federal government is involved in education for two major reasons: money and the Constitution. First, we don’t need to look further than the “No Child Left Behind Act” to see the role money plays. Nobody wants to see government money given away without strings attached and accountability mechanisms in place. But even if the Federal government stopped spending money on education and withdrew its related tentacles, the Constitution will require the Federal government to remain involved in education. The First Amendment says that the government “shall make no law respecting an establishment of religion” (Establishment Clause). The Supreme Court held 20 years ago, 7-2, that teaching creationism in public education violates the establishment clause. For that reason, States still won’t be able to teach creationism in schools.

In addition,

[Huckabee] told reporters that the theory of intelligent design, whose proponents believe an intelligent cause is the best way to explain some complex and orderly features of the universe, should be taught in schools as one of many viewpoints. “I don’t think schools ought to indoctrinate kids to believe one thing or another,” he said.

This goes to my previous comments regarding the creationism versus evolution debate (Science, houses, stones, and creation). Intelligent Design is not science, rather another phrase for creationism that was coined in an attempt to skirt Constitutional Law.

“We don’t burn no draft cards down on Main Street …”

Each time I read about United States v. O’Brien, 391 U.S. 367 (1968), whether in my notes, outline or Constitutional Law book, the tune Okie from Muskogee starts playing in my head.

We don’t smoke marijuana in Muskogee;
We don’t take no trips on LSD
We don’t burn no draft cards down on Main Street;
We like livin’ right, and bein’ free.

more lyrics

I can blame the third line of the song. O’Brien upheld a Federal law banning any person from knowingly destroying or mutilating their draft cards. O’Brien, the person, burned his draft card on the steps of the South Boston Courthouse in March 1966 to protest the Vietnam war. The court held that the law banning draft card destruction was content-neutral. It then provided a rule that is still used to today to determine if content-neutral laws violate the First Amendment protection of speech.

Content-neutral government regulation is sufficiently justified if it:

  1. is within the constitutional power of the government;
  2. furthers an important or substantial governmental interest;
  3. if the government’s interest is unrelated to the suppression of free expression; and
  4. if the incidental restriction on alleged 1st Amendment freedoms is no greater than is essential to the furtherance of that interest.

I personally think O’Brien was a BS ruling because the Congressional history shows Congress passed the law in reaction to draft card burning, a form of political speech. Thus, the law was content-specific which would require a higher level of review. In which case, its goal would need to accomplish a compelling government interest and be narrowly tailored to have no less restrictive alternatives. Even under the less rigid test provided in the case, the regulation should fail because it was passed to suppress expression, namely draft card burning. The Supreme Court is made up of humans and is liable to make mistakes from time-to-time.

BTW: I hear the Grateful Dead (with the Beach Boys) version, rather than the original Merle Haggard song. The Grateful Dead/Beach Boys version comes from a live set played in April 1971 at Fillmore East. Give me a holler if you’d like a copy of the MP3 (free, of course). I love the Grateful Dead policy of allowing audience members to tape their shows and freely distribute. More bands should follow it to increase the scope of their audience.

Science, houses, stones, and creation …

We had a lively debate today in Constitutional Law regarding a series of cases regarding creationism in school science curriculum. The primary case is Edwards v. Aguillard, 482 U.S. 578, (1987), a U.S. Supreme Court case from 1987. In it, the Court struck down a Louisiana law that required ‘creation science’ to be taught whenever evolution was taught as part of science curriculum, and vice versa. The Court held the law was a violation of the Establishment Clause, part of the First Amendment. “Congress shall make no law respecting an establishment of religion …” It held that the law was passed specifically to require teaching of creation science in public schools with the purpose of advancing and endorsing a particular religious doctrine.

Also mentioned was a more recent case from Pennsylvania in which a school district required ‘intelligent design’ to be taught in science classes. That law was struck down as a violation of the Establishment Clause by the local Federal district court because, among other reasons, evidence existed that the textbook publisher cut ‘creation science’ and pasted ‘intelligent design’ in its textbook after Edwards. One typo, as relayed in class, was “crintelligent designce.”

The point of my post is this: Creationism is not science and does not belong in a science curriculum. I’m glad courts have been able to see past the smoke and excise creationism from public school science curriculum. Even my Catholic high school taught evolution in science classes without any need to add disclaimers or to limit the scope of the subject. Then again, it was college preparatory with an eye towards building young men who were ready for college.

Here is a good quote I just ran across that I think sums the whole debate of creationism versus evolution in school:

“Science is facts; just as houses are made of stones, so is science made of facts; but a pile of stones is not a house and a collection of facts is not necessarily science.” – Henri Poincare

Seeing that quote is actually what prompted me to make this post.

I’d like to make an additional note regarding this case. Justice Scalia, in his dissent, showed he really doesn’t care as much for original intent as he claims he does in other cases and his public speeches. He says in several places that determining original intent is nearly impossible.

  • “discerning the subjective motivation of those enacting the statute is, to be honest, almost always and impossible task.”
  • “legislative histories can be contrived and sanitized, favorable media coverage orchestrated, and postenactment recollections conveniently distorted.”
  • “determining the subjective intent of the legislators is a perilous enterprise.”

Fun stuff. 😉

“The greatest menace to freedom is an inert people” — Brandeis

The following passage from Justice Brandeis, part of his concurrence in Whitney v. California (1927), is still relevant today. I love the passion the passage exudes.

Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed. Whitney v. California, 274 U.S. 357, 376 (1927).