Two of the Supreme Court’s decisions most awaited by First Amendment advocates this term have landed with a thud. Or maybe a whimper. But certainly not with a bang.
On April 28, the Court upheld the FCC’s power to implement a tougher policy against so-called “fleeting expletives” on live television. This was the Second Circuit’s case involving profanities uttered by Nicole Richie and Cher during music-awards shows in 2002 and 2003.
The other shoe dropped today when the High Court considered the Third Circuit’s case involving Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl halftime show. The Supreme Court told the appeals court to consider reinstating the FCC’s $550,000 fine against CBS.
In both cases the High Court skirted the constitutional question of whether the FCC’s content controls run afoul of the First Amendment. Last week’s profanity decision, for instance, was decided on procedural grounds (upholding the FCC’s right to change its indecency policy) and only then by a slim 5-to-4 vote.
In both cases too, the courts of appeal had sided with the networks and against the FCC. The First Amendment question will now most likely be addressed specifically at that appellate level and, one hopes, make its way back to the High Court for a definitive ruling.
We know that the Supreme Court avoids reaching constitutional questions when a case can be decided on other grounds. That’s exactly what happened here, so it shouldn’t come as a surprise. But it’s still a disappointment.
On a bright note, however, Justice Clarence Thomas said in a dissent that he thinks it’s about time to reconsider the two cases at the heart of broadcast regulation: Red Lion, which creates a lower standard of First Amendment protection for broadcasters; and Pacifica, which turns on the FCC’s authority to regulate “indecent” broadcast fare.
The openness of Justice Thomas is both refreshing and hopeful. But, with the First Amendment question presently back at the appellate level, it will be a long time (if ever) before the Supreme Court tackles the underlying premises of Red Lion and Pacifica. And with a new, and as-yet-unnamed justice thrown into the mix following the retirement of Justice Souter, all bets could be off.