Supreme Court Blinks Again at FCC Indecency Policy

      For the first time ever, the major broadcast television networks failed to win any nominations in this year’s Emmy awards for outstanding drama. Whose fault is that? The Supreme Court’s, at least in part.
      Blaming The Nine for the pallid fare from ABC, CBS, Fox, and NBC may seem to be a stretch. But the Supreme Court has contributed to the networks’ timidity by leaving in place the Federal Communications Commission’s indecency policy with its threat of substantial financial penalties for broadcasting even a single obscenity or a few seconds of adult nudity.
      True, the Court this year rejected the $1.2 million fine that the FCC imposed on ABC stations for seven seconds of adult nudity in an episode of the acclaimed police drama NYPD Blue in 2003. The 8-0 ruling in FCC v. Fox Television Stations [June 21] also erased the no-penalty sanction against Fox affiliates for the fleeting expletives that entertainers Cher and Nicole Richie uttered during the Billboard Music Awards in 2002 and 2003 respectively.
      The justices appear to have achieved unanimity, however, only by skirting the hard constitutional issue that divided them during oral arguments five months earlier. Instead of confronting that issue, the Court ruled that the networks had no fair warning of the changed policy that the FCC was to adopt in 2004.
      Three years earlier, the Court had also declined to rule on the constitutional issue. Instead, by a 5-4 vote, the Court held in Fox I that the FCC had adequately justified its change of policy and told the federal appeals court in New York to rule first on the First Amendment issue. The appeals court ruled the policy unconstitutionally vague, setting the stage for a second Supreme Court hearing.
      The Court decided the case this year on due process instead of free speech grounds. Justice Anthony M. Kennedy ended his opinion for the Court by saying it was up to the FCC to determine whether to modify or retain its policy. Separately, Justice Ruth Bader Ginsburg, writing only for herself, went further and called for the Court to reconsider the 1978 decision, FCC v. Pacifica Foundation, that upheld the FCC’s power to punish broadcasters for indecency at all.
      The FCC got a different signal at the end of the term from none other than Chief Justice John G. Roberts Jr. Following the lead from the ABC and Fox cases, the Court declined to hear the FCC’s effort to reinstate the $550,000 penalty against CBS affiliates for Janet Jackson’s breast-baring “wardrobe malfunction” during the 2004 Super Bowl. But Roberts took the occasion to state his view that the FCC’s stringent policy is now established law. “It is now clear that the brevity of an indecent broadcast— be it word or image— cannot immunize it from FCC censure,” Roberts wrote.
      The Super Bowl and music awards programs have gotten most of the attention as these cases have traveled slowly from the FCC up to the Supreme Court and then back down. But the NYPD Blue case warrants more attention for the chilling effect that the FCC’s indecency policy may be having on the networks’ program creators and programming executives.
      In adopting the new indecency policy, the FCC included exceptions for bona fide news and for “artistic necessity.” The NYPD Blue episode, entitled “Nude Awakening,” would seem to have been a candidate for the latter exception. The opening sequence shows the young son of Detective Andy Sipowicz walking in on his father’s nude girlfriend, fellow detective Connie McDowell, in the bathroom as she prepares to take a shower. McDowell’s bare buttock and bare breast are visible for a total of seven seconds.
      The writers used the incident later in the program to explore issues of awakening sexuality and parent-child relationships. But the FCC decided that the onscreen nudity lasted too long and the camera shots were too close range. The whole scene, the commission said, was “pandering, titillating, and shocking.”
      If FCC regulators are going to examine a bare butt that closely, one can understand that program creators will take extreme care to avoid fleeting body parts as well as fleeting expletives on the broadcast networks. Caution is indicated all the more because the FCC has been anything but consistent in applying the policy. The movies Schindler’s List and Saving Private Ryan managed to get by the FCC indecency police despite graphic images and language, but the PBS documentary The Blues: Godfathers and Sons got slapped because the bluesmen used the “F” and “S” words. “It's like nobody can use dirty words or nudity except for Steven Spielberg,” Justice Elena Kagan remarked during Supreme Court arguments.
      The policy applies only to broadcasters, however, not on cable, where anything goes. Predictably, cable channels have more venturesome programming than the TV networks— and thus all of the Emmy nominations for drama announced last week [July 19]. But even the young viewers supposedly being protected by the indecency policy know how to surf seamlessly between broadcast and cable channels.
      Some of the justices recognized these real-world considerations during the arguments in January. For now, however, the Court is leaving the FCC free to apply the indecency policy to the million and a half pending indecency complaints – with the courts to intervene later to try to prevent undue harm to the First Amendment.

Messing in Court With Texas' Voter Photo ID Law

      How many Texans will be unable to vote in November if the state is allowed to put its new photo ID law into effect? The Justice Department, opposing the law, estimates about 1.4 million Texans lack the kind of identification required under the law. Texas, seeking court permission to put the law into effect, says the number at risk of being denied at the polls is much smaller: 167,724.
      That’s right: Texas acknowledges that its voter ID law could prevent 167,724 people from casting ballots in November — which, the Dallas Morning News notes in an editorial, is roughly the entire population of Brownsville. “That is plainly unacceptable,” the newspaper says.
      The law is all the more difficult to justify given the paltry evidence that the state’s lawyers introduced in federal court in Washington, D.C., last week (July 9-13) on the supposed need for this new requirement. Maj. Forrest Mitchell, the election fraud investigator for the state attorney general’s office, testified that for all of the state’s effort at catching voter fraud, only five people have been prosecuted for voter impersonation – the only fraud that a photo ID law might catch.
      Texas is one of 16 states that have recently enacted laws requiring voters to show a government-issued photo ID, typically a driver’s license, in order to cast ballots. Unlike most of the others, Texas needs court permission to put its law into effect. Like six other southern states with histories of racial discrimination in voting, Texas is subject to a requirement in the federal Voting Rights Act to obtain “preclearance” for any change in election law or voting procedure.
      The fate of the preclearance requirement — section 5 in the act — may lie with the Supreme Court if the justices decide to hear one of the new round of lawsuits challenging the constitutionality of the provision. So far, lower federal courts have upheld the law. Roberts Court conservatives voiced grave doubts about the law, however, in a 2009 decision, Northwest Austin Municipal Utility District No. 1 v. Holder. The Court ruled on a narrower issue, however, and left the law largely intact for the time being.
      With the law on the books, Texas is held to its proof to show that the law does not have the purpose or effect of racial discrimination. Texas asked the Justice Department for clearance to put the law into effect, but the Justice Department said no last year. Texas then took the alternate route prescribed in the law: a suit before a special three-judge federal court in Washington.
      The week-long trial that ended with three hours of opposing arguments on Friday (July 13) seems from news accounts to have gone not so well for the state. Lawyers for the state got an earful from the presiding judge when they complained that the Justice Department had been slow to provide needed information. Judge Rosemary Collyer, a Republican appointee, barked that the state had “a horrendous record” in the case for failing to produce records on time.
      As recounted by the Morning News’s reporter Todd J. Gillman, the state’s statistical expert, Thomas Sager of the University of Texas-Austin, jumped through hoops to whittle the Justice Department’s estimate of 1.4 million disenfranchised voters down to size. Sager followed instruction from state officials to delete from the Justice Department’s calculation anyone over age 65 — on the assumption that the law, known as SB 14, makes it easier for older people to vote by mail.
      That tenuous assumption accounted for 140,666 deletions from the DOJ list, Gillman reported. Another 261,887 people were removed from the “No ID” list because they said they had some sort of Texas ID even though, as Gillman noted, a would-be voter’s say-so will not be enough on Election Day if the law takes effect.
      Even with all the generous statistical assumptions, the prospects of turning away 167,724 would-be voters is in astounding contrast to the exhortations typically heard in advance of elections on the importance of every single vote. Given the scant evidence of voter impersonation — and the utter impracticality of swaying an election that way — one is naturally drawn to the conclusion that photo ID advocates actually want fewer people to go to the polls.
      African American and Latino legislators testified that was exactly the motivation the Republican-controlled Texas legislature had in enacting the law, using special procedures to ease passage. Arguing for the government, Matthew Coangelo, deputy assistant attorney general in the civil rights division, emphasized that the law was enacted against the backdrop of a huge increase in the state’s Hispanic population. Harvard University statistician Stephen Ansolabehere testified that the “No ID” list is disproportionately African American and Hispanic. Those populations are important Democratic constituencies.
      Even if GOP legislators were not deliberately engaged in voter suppression, the state’s lawyers had no concern during the trial with the difficulty would-be voters might face in securing the needed photo ID. When State Rep. Trey Martinez Fischer noted that people in West Texas might have a 200-mile round trip to get to a state office for the needed ID, the state’s lawyer, John Hughes, replied cavalierly that Texans are accustomed to long-distance driving.
      Hughes drew more and harder questions from the judges than Coangelo did during closing arguments. The judges promised to try to decide the case quickly. South Carolina will go to trial before a different panel next month to try to get clearance for its photo ID law.

Changing Minds at High Court in Health Care Case

      Chief Justice John Roberts was not the only member of the Supreme Court to have a change of mind sometime after the arguments over President Obama’s health care reform in late March and before the June 28 decision in the case. Justices Stephen G. Breyer and Elena Kagan also had a change of mind, or heart, on the secondary issue in the case: the constitutionality of the expansion of the federal-state Medicaid program.
      This information comes not from confidential sources but from a re-reading of the transcripts of the March 28 arguments. Kagan and Breyer, even more than their liberal colleagues Ruth Bader Ginsburg and Sonia Sotomayor, challenged attorney Paul Clement relentlessly as he argued that the states were being forced to agree to the expansion even though the federal government was paying all or virtually the cost through 2020 and beyond.
      “Why is a big gift from the federal government a matter of coercion?” Kagan asked. “It's just a boatload of federal money for you to take and spend on poor people's health care,” Kagan added. “It doesn't sound coercive to me, I have to tell you.”
      Breyer intervened later to take on Clement’s point that the law put the states at risk of losing all their Medicaid funds, not just the new federal money, if they refused to go along with the expansion. “Where does it say that?” Breyer said.
      Clement fumbled, but Breyer had his answer already. Quoting the pertinent section, Breyer said a provision in the original Medicaid law passed in 1965 gave the secretary of Health and Human Services discretion to withhold funds from states.
      Citing his own research, Breyer said the law had never been applied in the way Clement was suggesting. “I want to know where this idea came from that should state X say, ‘I don't want the new money,’ that the secretary would or could cut off the old money?” Breyer snapped.
      Solicitor General Donald Verrilli got tough questions in his turn from the other side of the bench, so by the end of arguments the likely outcome was unclear. But Breyer and Kagan seemed all but certain votes against the states’ position.
      Sometime after the arguments, however, Breyer and Kagan came to a different conclusion. They joined Roberts and the court’s conservatives in holding that the Medicaid expansion was unconstitutionally coercive toward the states. Roberts joined the four liberals, however, in salvaging the expansion by limiting the penalty for non-participating states to loss of new, not existing, funds.
      Like Breyer and Kagan, Roberts cast votes in the case, National Federation of Independent Business v. Sebelius, at odds with the tenor of his questions during the six-and-a-half hours of arguments. Unlike Breyer and Kagan, however, Roberts has come under public scrutiny for his change of mind after an extraordinary disclosure by CBS News legal affairs correspondent Jan Crawford.
      Crawford reported on July 1 that Roberts decided to uphold the law six weeks after he had voted and started drafting a majority opinion to strike down the entire Affordable Care Act. Quoting “two sources with specific knowledge of the deliberations,” Crawford said Roberts withstood “a month-long, desperate campaign” to bring him back to his original position. Justice Anthony M. Kennedy in particular was “relentless” in the unsuccessful lobbying effort, she said.
      Crawford, a good reporter with very good conservative sources to match her conservative leanings, did not identify her sources. The logical suspects are justices themselves or law clerks, perhaps with a justice’s approval. Clarence Thomas is a prime suspect, given the mutual admiration between Crawford and Thomas; Kennedy is another, given the flattering description of his role in the events.
      A week later, Crawford’s report is unconfirmed — but also uncontradicted. The structure of the opinions provides some substantiation. The joint dissent listed as authored by the four conservatives — Antonin Scalia, Kennedy, Thomas, and Samuel A. Alito Jr. — mistakenly refers to Ginsburg's partial concurrence as “the dissent,” suggesting it was originally drafted as such. Some evidence also comes from a tweet by the conservative National Review columnist Ramesh Ponnuru in May that the justices had voted to strike down the law but that Roberts had gone “wobbly.”
      Justices can and do change their minds after initial votes in conference. In two known instances, Kennedy himself changed positions in major cases in 1992. He voted initially to permit school-sponsored prayers at high school graduation ceremonies only to write the majority opinion barring the practice. And he voted initially to overrule the abortion rights decision Roe v. Wade before joining Justices Sandra Day O’Connor and David H. Souter in the joint opinion that largely reaffirmed the decision.
      Conservatives feel betrayed by Roberts’ vote. Some are convinced that he yielded to warnings in editorials and commentary in the media and legal blogs that a ruling against the law risked political attacks on the Court. Conservative columnists and commentators responded by publicly pressuring Roberts not to yield to public pressure.
      Court watchers are bemoaning the leak — “a stain” on the Court, says former solicitor general Theodore Olson — but the Court and the justices will survive. For now, it is enough to recall Justice Felix Frankfurter’s oft-quoted comment when he changed his view on an arcane tax issue only six years after an earlier decision. “Wisdom too often never comes,” Frankfurter wrote in Henslee v. Union Planters Bank (1949), “and so one ought not to reject it merely because it comes late."