by Marc J. Randazza and Jason Fischer
The 5-4 decision came down yesterday. In an opinion written by Scalia, the Second Circuit’s speech-protective ruling in Fox v. FCC was overturned. (Prior decision discussed here) At least the Court left open the question of whether the FCC’s policy might violate the First Amendment in certain circumstances.
Scalia says vaffanculo to the First Amendment (what else is new, lately)
Scalia flatly rejects any notion that he might have a responsibility to examine the First Amendment issues in the case.
The Second Circuit did not definitively rule on the constitutionality of the Commission’s orders, but respondents nonetheless ask us to decide their validity under the First Amendment. This Court, however, is one of final review, “not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case. Meanwhile, any chilled references to excretory and sexual material “surely lie at the periphery of First Amendment concern,” Pacifica, 438 U. S., at 743 (plurality opinion of STEVENS, J.). We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time. (Op. at 25-26)
In other words, Scalia gives a big “fuck you” to the principles laid out in two key First Amendment cases. See Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499 (1984) (”[I]n cases raising First Amendment issues . . . an appellate court has an obligation to ‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.’” (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964)).
On what grounds did the Court overturn the Second Circuit’s ruling?
The Second Circuit said that the FCC acted arbitrarily and capriciously in suddenly changing its three decades old position that “fleeting expletives” are not actionably indecent. The Second Circuit said that some of the FCC’s justifications for its new policy, in contrast to the earlier policy, were “divorced from reality“.
Scalia’s view is that as long as the FCC can come up with any articulable rationale for its rule, and it could have enacted the rule in the first place, it doesn’t need to have a more detailed reason to change the rule. The Constitution be damned:
In this appeal from the Second Circuit’s setting aside of Commission action for failure to comply with a procedural requirement of the Administrative Procedure Act, the broadcasters’ arguments have repeatedly referred to the First Amendment. If they mean to invite us to apply a more stringent arbitrary-and-capricious review to agency actions that implicate constitutional liberties, we reject the invitation. (Op. at 12)
Nevertheless, the analysis of the administrative procedures act and an agency’s rule-making authority is, quite honestly, too dull for me to get into in depth. (A future update may change this). Suffice to say that the FCC can change the rules if it has some reason to do so.
But here is where it gets exciting.
Are you sitting down? Good. Read this from a concurrence in the case.
I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case. See Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969); FCC v. Pacifica Foundation, 438 U. S. 726 (1978). Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity. “The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so” in these cases. (Concurrence at 1)
Guess who wrote that… wait for it… waaait for it.
Yeah, THAT Clarence Thomas.
Holy shit, it gets better.
First, instead of looking to first principles to evaluate the constitutional question, the Court relied on a set of transitory facts, e.g., the “scarcity of radio frequencies,” Red Lion, supra, at 390, to determine the applicable First Amendment standard. But the original meaning of the Constitution cannot turn on modern necessity: “Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” District of Columbia v. Heller, 554 U. S. ___, ___ (2008) (slip op., at 63). In breaching this principle, Red Lion adopted, and Pacifica reaffirmed, a legal rule that lacks any textual basis in the Constitution. (Concurrence at 3)
A reminder, that is Clarence Thomas writing there. Clarence. Motherfucking. Thomas.
I am open to reconsideration of Red Lion and Pacifica in the proper case. (Concurrence at 6)
Clarence Thomas. First Amendment Bad Ass of the Week.
UPDATE: According to Fischer, Thomas has always been awesome.