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Robert Corn-Revere First Amendment Lawyers Association Chicago, July 2012 WashingtonUpdate.

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1 Robert Corn-Revere First Amendment Lawyers Association Chicago, July 2012 WashingtonUpdate

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6 Question presented in FCC v. Fox Television Stations, Inc. and ABC, Inc. Whether the Federal Communications Commission’s current indecency- enforcement regime violates the First or Fifth Amendment to the United States Constitution.

7 FCC Orders Invalidated 8-0

8 Justice Kagan Discovers the “Steven Spielberg Exception” “It’s like nobody can use dirty words or nudity except for Steven Spielberg.... And so it’s a serious First Amendment issue.” Justice Elena Kagan

9 Justice Kennedy’s good question Why is there a different standard for broadcast television “when there are so many other options and – when it’s not apparent to many viewers which of the two they’re watching?” Justice Anthony Kennedy

10 Justice Kennedy’s good question Is it “just because it’s an important symbol for our society that we aspire to a culture that’s not vulgar in a very small segment?” Justice Anthony Kennedy

11 Justice Antonin Scalia “Sign me up as supporting [the] notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court...”

12 Justice Sam Alito “Broadcast TV is living on borrowed time. It is not long before it goes the way of vinyl records and 8-track tapes.... Why not let this die a natural death?”

13 What if there’s no speech police? It is inevitable that “every celebrity or wannabe celebrity that is inter- viewed can feel free to use one of these words. We will expect it as a matter of course, if you prevail.” Justice Anthony Kennedy

14 The Chief Justice’s Freudian Slip “All we are asking for, what the government is asking for, is a few channels where... they are not going to hear the S-word, the F-word. They are not going to see nudity.” Chief Justice John Roberts

15 Justice Breyer’s Concern “Does this case in front of us really call for the earthshaking decision that you all have argued for in the briefs?” Justice Stephen Breyer

16 FCC v. Fox Television Stations and ABC, Inc. “[B]ecause the Court resolves these cases under fair notice grounds under the Due Process Clause, it need not address the First Amendment implications of the Commission’s indecency policy.” “[T]his opinion leaves the Commission free to modify its current indecency policy in light of its determination of the public interest and applicable legal requirements.” “And it leaves the courts free to review the current policy or any modified policy in light of its content and application.”

17 Wait, there’s more... The void-for-vagueness doctrine applies to all laws, but “[w]hen speech is involved, rigorous adherence to those requirements is neces- sary to ensure that ambiguity does not chill protected speech.” Justice Anthony Kennedy

18 Justice Ginsburg condemns Pacifica “In my view, the Court’s decision in FCC v. Pacifica Foundation... was wrong when it was issued. Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why Pacifica bears reconsideration.” Justice Ginsburg, concurring

19 Could we have done better? What would the Court have done if it had not been asked to choose between the FCC’s decisions and no rules at all? What would the Court have done if it had not been asked to choose between the FCC’s decisions and no rules at all? Would we be better off if the Court had affirmed the Second Circuit’s ruling on vagueness but made clear that the FCC could try to craft a new policy under Pacifica? Would we be better off if the Court had affirmed the Second Circuit’s ruling on vagueness but made clear that the FCC could try to craft a new policy under Pacifica?

20 Supreme Court Denies Cert. in FCC v. CBS Corporation

21 CBS Corporation v. FCC (3d Cir. 2011) “While we can understand the Supreme Court’s desire that we re-examine our holdings in light of its opinion in Fox... we conclude that, if anything, Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the Commission acted arbitrarily in this case.” Judge Marjorie Rendell CBS Corporation v. FCC (3d Cir. 2011)

22 Roberts concurs... sort of “It is now clear that the brevity of an indecent broadcast – be it word or image – cannot immunize it from FCC censure... Any future ‘wardrobe mal- functions’ will not be protected on the ground relied on by the court below.” Chief Justice John Roberts

23 What we have here is a failure to communicate... From the unanimous decision in Fox: “[T]he Commission policy in place at the time of the broadcasts gave no notice... that a fleeting expletive or a brief shot of nudity could be actionably indecent.” From Roberts’ Super Bowl statement: “But the agency never stated that the exception applied to fleeting images as well, and there is good reason to believe that it did not.”

24 U.S. v. Alvarez, No. 11-210 (2012) 18 U.S.C. 704(b) is facially invalid under the Free Speech Clause of the First Amendment. 6-3 (plurality)

25 Justice Kennedy writes for a plurality. Joined by Chief Justice Roberts, Justice Ginsburg, and Justice Sotomayor.

26 Applying Basic Principles “Fundamental constitutional principles require that laws enacted to honor the brave must be consistent with the precepts of the Constitution for which they fought.” Justice Anthony Kennedy

27 United States v. Stevens is the rule Court has rejected as “startling and dangerous” a “free-floating test for First Amendment coverage... based on an ad hoc balancing of relative social costs and benefits.” Court has rejected as “startling and dangerous” a “free-floating test for First Amendment coverage... based on an ad hoc balancing of relative social costs and benefits.” The plurality rejected “the notion that false speech should be a general category that is presumptively unprotected.” The plurality rejected “the notion that false speech should be a general category that is presumptively unprotected.” Allowing the government to prohibit false statements without some proof of fraud or other harm “has no clear limiting principle.” Allowing the government to prohibit false statements without some proof of fraud or other harm “has no clear limiting principle.”

28 Stolen Valor Act Fails Strict Scrutiny First Amendment requires that the restriction on speech be “actually necessary;” there must be “a direct causal link between the restriction imposed and the injury to be prevented.” First Amendment requires that the restriction on speech be “actually necessary;” there must be “a direct causal link between the restriction imposed and the injury to be prevented.” “The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest.... The remedy for speech that is false is speech that is true. This is the ordinary course in a free society.” “The Government has not shown, and cannot show, why counterspeech would not suffice to achieve its interest.... The remedy for speech that is false is speech that is true. This is the ordinary course in a free society.”

29 Anthony Kennedy: First Amendment God “The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straight- out lie, the simple truth.” “Truth needs neither handcuffs nor a badge for its vindication.” Justice Kennedy

30 On the other hand... “I do not rest my conclusion upon a strict categorical analysis.” “I do not rest my conclusion upon a strict categorical analysis.” Applies “proportionality;” or “intermediate scrutiny.” Applies “proportionality;” or “intermediate scrutiny.” The Court must determine “whether the statute works speech-related harm that is out of proportion to its justifications.” The Court must determine “whether the statute works speech-related harm that is out of proportion to its justifications.” Justice Breyer searches for a principle...

31 Déjà vu: Breyer on balancing in Brown v. EMA “I would evaluate... whether, overall, ‘the statute works speech- related harm... out of proportion to the benefits that the statute seeks to provide.’” Justice Breyer, dissenting

32 And again in Sorrell v. IMS Health “In this case I would ask whether Vermont’s regulatory provisions work harm to First Amendment interests that is disproportionate to their furtherance of legitimate regulatory objectives.” Justice Breyer dissenting, joined by Justices Ginsburg and Kagan

33 Breyer’s concurrence in Alvarez Prohibiting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise First Amendment concerns, but the risk of suppressing valuable speech is lower where the law targets “false statements about easily verifiable facts.” Prohibiting false statements about philosophy, religion, history, the social sciences, the arts, and the like raise First Amendment concerns, but the risk of suppressing valuable speech is lower where the law targets “false statements about easily verifiable facts.” Most restrictions on false speech require some proof of harm, but “[t]he statute before us lacks any such limiting features;” Most restrictions on false speech require some proof of harm, but “[t]he statute before us lacks any such limiting features;” “[I]t is likely that a more narrowly-tailored statute combined with... information-disseminating devices will effectively serve Congress’ end.” “[I]t is likely that a more narrowly-tailored statute combined with... information-disseminating devices will effectively serve Congress’ end.”

34 Justice Alito, joined by Justices Scalia and Thomas, dissenting. “These lies have no value in and of themselves, and proscribing them does not chill any valuable speech.” Justice Alito looks askance at the First Amendment “Surely it was reasonable for Congress to conclude that the goal of preserving the integrity of our country’s top military honors is at least as worthy as that of protecting the prestige associated with fancy watches and designer handbags.”

35 The First Amendment in the 2011-12 Term United States v. Alvarez United States v. Alvarez FCC v. CBS Corporation FCC v. CBS Corporation FCC v. Fox Television Stations, Inc. and ABC, Inc. FCC v. Fox Television Stations, Inc. and ABC, Inc. American Tradition Partnerships, Inc. v. Bullock American Tradition Partnerships, Inc. v. Bullock Knox v. Service Employees International Union Knox v. Service Employees International Union Reichle v. Howards Reichle v. Howards Golan v. Holder Golan v. Holder

36 First Amendment in the Court 2009-2012 Wins United States v. Alvarez FCC v. CBS Corporation FCC v. Fox Television Stations, Inc. and ABC, Inc. American Tradition Partnerships, Inc. v. Bullock Knox v. Service Employees International Union Snyder v. Phelps Brown v. EMA Sorrell v. IMS Health Inc. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett Citizens United v. FEC United States v. Stevens Losses Golan v. Holder Reichle v. Howards Borough of Duryea v. Guarnieri Nevada Commission on Ethics v. Carrigan Christian Legal Society v. Martinez Doe v. Reed Holder v. Humanitarian Law Project Milavetz, Gallop & Milavetz, PA, v. U.S.

37 America’s National Rorschach Test The Supreme Court:


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