The Lincoln Plawg - the blog with footnotes
Thursday, March 25, 2004
More FCC censorship
It's slow going.
But, having re-read the Supreme Court in Pacifica - followed by Robert Corn-Revere's statement  to the House Telecommunications Subcommittee, I'm a little surer that a full-bore constitutional challenge to FCC censorship  would be worthwhile.
Pacifica - without getting into Marks (piece yesterday) - looks to be shaky in several respects (expounded by RCR rather more satisfactorily than I could manage!)
By way of rough-and-ready summary:
Other questions arise.
First, of all, strategy. We obviously want to do maximum destruction to the regime of FCC censorship, but there are several possible claims that might get in the way one of the other:
Would it be good strategy to have several cases running in parallel? Since the Supreme Court can select which (if any) case to take, one would ideally not want to give the Court the chance of selecting a case which could be decided on narrow grounds which left the bulk of the FCC censorship system intact.
On the other hand, we would not want the best to be the enemy of the good: if, we put all our eggs in one basket with a global claim of unconstitutionality and lost before the Supremes, the system could end up with a legitimacy it currently does not have; and we will have lost the chance for a High Court challenge in the area for a good many years afterwards.
(Besides, Stalinist direction of such matters is impossible: there probably will be several cases. The interaction problems still need to be dealt with, though.)
To get any test case off the ground, one will need a plaintiff with standing to sue who has a claim which is ripe . A suit at the District Court will not lie, it seems. What is needed is a final agency action by the FCC (RCR n151), from which an appeal to the DC Circuit Court may then be made .
Would it be reasonable for the courts to insist that a radical suit seeking the whole system of indecency censorship to be declared unconstitutional necessarily need to piggyback on a particular FCC enforcement action?
Framing any claim (broad or narrow) may be tricky: for instance, I doubt whether a preliminary injunction would be available where one was claiming that existing law or regulation was unconstitutional.
(One might stand a better chance of getting an injunction in a suit to declare a putative new FCC law - currently HR 3717/S 2056, as previously discussed several times here - unconstitutional. Cases brought against child porn - Free Speech Coalition - and internet smut - Reno v ACLU and Ashcroft v ACLU - were, from memory, all covered by preliminary injunctions. The laws attacked have thus never been enforced.)
The impact of the Chevron doctrine - of which I had not taken cognizance till a couple of days ago! - on the willingness of the courts to intervene needs to be considered.
My slight understanding of this is that Chevron was a 1984 Supreme Court case ruling that Federal courts should show a large measure of deference to the interpretation by regulatory bodies of the laws and rules under which they operate.
From what little I've read on the subject, it seems that the doctrine has weakened over recent years; and it is not clear to me how far it would apply to questions: the name to plonk  is, I believe, the Carolene Products footnote .
In any case, RCR in his piece doesn't mention the Chevron doctrine; which I take to be, at the very least, suggestive that it does not apply to FCC censorship questions.
(The doctrine would seem eminently applicable to other parts of the FCC's remit: competition control, for instance.)
I can't help a feeling of of deflation: too little knowledge chasing too many difficult problems! Time to get some in , I fancy.
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