FCC v. Fox

Thursday's 8-0 decision in FCC v. Fox will come as a mixed blessing to cultural conservatives.  In an opinion by Justice Kennedy, the Court vacated the FCC's orders against FOX and ABC, on the not especially compelling ground that on the particular facts of these enforcement actions, the agency had given the networks insufficient notice of what was actionably obscene speech.  By deciding the case on Due Process rather than First Amendment grounds, the Court dodged the free speech issues over which it was deeply divided at oral argument.  Libertarians had hoped -- and some had predicted -- that the Court would take this occasion to overrule Pacifica, the 1978 case upholding the "most limited First Amendment protection" for broadcasting.  By joining an opinion that specifically allows the FCC to continue enforcing, at least for now, a context-specific anti-indecency policy over broadcast media, Chief Justice Roberts and Justices Scalia and Alito avoided a possible reversal of Pacifica and a First Amendment holding that the time has now come for the public privilege of holding a broadcast franchise no longer to be tethered to meaningful standards of decency in the public interest.  Thursday's narrow holding buys a little more time for all concerned.  It does not conclusively vindicate the public interest. Justice Sotomayor did not participate, and her participation when this litigation returns to the Court, as it so likely will, could well shift the tide in favor of a constitutional impotence to regulate indecency in broadcast media.  Justice Ginsburg's concurrence in Thursday's judgment made clear that she has no sympathy for the rule of Pacifica, a lack of sympathy Justice Thomas registered the first time the case came before the Court.