The Lincoln Plawg - the blog with footnotes

Politics and law from a British perspective (hence Politics LAW BloG): ''People who like this sort of thing...'' as the Great Man said

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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 [1] to the House Telecommunications Subcommittee, I'm a little surer that a full-bore constitutional challenge to FCC censorship [2] 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:
  1. the opinions were fragmented;

  2. it was, according to the Stevens opinion of the Court, directed narrowly to the actual FCC ruling in the case;

  3. technology has moved on immensely in the interim;

  4. subsequent court decisions have either parroted approval of the USSC decision without analysis or - in Reno v ACLU - undercut its reasoning; and

  5. the rule of law for which it stands (to the extent that there is any) has been (at best) an uncertain guide for the FCC, as shown by the rulings it has given.

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:
  1. 18 USC 1464 is unconstitutional, except in relation to obscene material;

    if not,

    1. the FCC interpretation of indecent is wrong; or

    2. the FCC interpretation of profane is wrong.

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 [3]. 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 [4].

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 [5] is, I believe, the Carolene Products footnote [6].

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 [7], I fancy.

  1. I've mentioned RCR's statement before (March 19): for an overview of the issue of FCC indecency censorship, it's the best that I've come across.

  2. Except of material obscene under the Miller test.

  3. The pattern of FCC enforcement has been that the delays and freezing of FCC approvals on other matters in the interim have meant that no indecency ruling has been challenged (RCR n116). (The low level of the penalties - cost of doing business - has something to do with it, as well, I suspect!)

  4. Though RCR mentions that Sarah Jones, the KBOO rapper (March 19 piece), filed a request for a declaratory ruling with the FCC with a view to hurrying things along.

  5. In the Stephen Potter, Oneupmanship sense.

  6. On which the blogosphere's own Jack Balkin, I see, contributed a long article to the Yale Law Journal in 1998. It looks like something of a treat. More damned online serendipity!

  7. Get some in (ie, some service) was a phrase beloved of NCOs in haranguing new arrivals in the era of post-War British conscription ('National Service') which ran up till the early 1960s - way before my time, thankfully. It was the title of a 1970s sitcom, based in the RAF of the 1950s, I think. (The much more successful military equivalent - The Army Game - was actually broadcast whilst National Service was in operation.)

    This reversed the wireless (radio) experience, where the RAF wartime comedy Much Binding in the Marsh went on to have several years of success after the War, and (from memory) its military equivalent did not.

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