Thursday, April 30, 2009 - The Progress & Freedom Foundation Blog

The "Firstness" of the First Amendment

It has been said, by someone far wiser than I, that there is a certain "firstness" about the First Amendment's protection of free speech. There is an undeniable primacy about the guarantee of freedom of speech in a democracy, and one would have thought that guardians of the "public interest" would all be on the same page about regulatory threats to this core value. And that is what made Public Knowledge Legal Director Harold Feld's recent post about the Supreme Court's decision in FCC v. Fox Television Stations so surprising.

It is not, however, the indecency/broadcast free speech issues that make this case a big [obscene gerund] deal from my perspective. Rather, the case should have significant impact on the pending Comcast/BitTorrent case now pending in the DC Circuit.
One would have thought that Feld would have issued a statement roughly consistent with his former colleague Andrew Schwartzman's criticism of the decision for its deleterious impact on the First Amendment rights of broadcasters, performers and viewing/listening audiences. After all, the majority decision showed a disturbing lack of concern between the relationship of the FCC's former policy of restraint in regulating the occurrence of "fleeting expletives" in broadcast programming and its recognition of the severe limits the First Amendment imposes on the FCC's regulatory authority in this area.

But no. The "big news," in Feld's view, was not the Supreme Court's reversal of the Second Circuit's determination that the FCC had acted arbitrarily and capriciously when, it departed from its previous enforcement policy to find that fleeting expletives uttered by certain performers in various televised live-award programs were indecent. Rather, Feld exclaims, the real story of the day is the fact that the FCC had altered its prior policy of regulatory restraint in an adjudicatory (rather than a rulemaking) proceeding. Feld then articulates similarities between issues addressed in FCC v. Fox and the Administrative Procedure Act and Due Process claims that Comcast is expected to bring before the D.C. Circuit in its challenge to the FCC's ruling, and argues that the FCC v. Fox decision means that Comcast will lose on the issues of (1) "General Standard of Review;" (2) "Due Process;" and (3) "Empirical Evidence, Deference."

I have written previously of many flaws in the "adjudi-making" approach taken by the FCC in reaching its Comcast/BitTorrent decision. My colleague Adam Marcus and I have expanded this analysis in a law review article to appear in the Spring issue of Catholic University's CommLaw Conspectus. For present purposes, it suffices to say that our analysis of the strength of the FCC's decision is quite different on both procedural and substantive grounds. And it is the latter that Feld overlooks completely in his post.

According to Feld, any due process claim that Comcast is likely to bring will fail because the Supreme Court has now sanctioned an agency enforcement action even where the agency had no actual rule in place. Thus, as with indecency, the FCC may proceed by asserting a general principle - or, as it has already, four Internet policy principles - and subsequently refining the principles through case-by-case adjudication.

Yet, the FCC's regulatory actions with respect to fleeting expletives could not have been more different from its action against Comcast for this simple reason: In the former case, the FCC was acting to enforce a statutory mandate (18 U.S.C. § 1464) that criminalizes references to sexual or excretory activity or organs. In other words, in the actions underlying the Fox decision, the FCC was engaging in enforcement actions under expressly delegated statutory authority from Congress. In contrast, in the Comcast case, the FCC was "enforcing" policy principles that it had previously declared to be unenforceable, in an area in which it has no expressly delegated statutory authority: the network management practices of information service providers. In our upcoming law review article, Marcus and I explain why the FCC's reliance upon its "ancillary jurisdiction" in exercising regulatory authority over the network management practices of broadband Internet service providers is misplaced, and why the agency's action will likely be ruled ultra vires on appeal.

Thus, the fact that the Supreme Court has upheld, as neither arbitrary nor capricious, a change in agency indecency enforcement policy under an explicit statutory prohibition in the Fox case has no direct applicability to the Comcast case, where the agency was acting beyond its statutory authority. Even assuming for the sake of argument that this aspect of the Fox decision portends the outcome of a potential Comcast argument that the FCC cannot set and enforce policy at the same time in an adjudicatory proceeding, the myriad other procedural failings of the FCC's order dim its prospects of surviving a challenge.

Further, Feld quite correctly notes that the Supreme Court majority admonished the Second Circuit for failing to show adequate deference to the FCC's predictive judgment on the impact of indecent speech on children. He concludes that this "has the potential to influence the D.C. Circuit in how it analyzes the FCC's predictive judgment that permitting this kind of network management would be inconsistent with its responsibilities under the Communications Act."

First, I hope not, and second, I doubt it. I hope not because the Supreme Court majority's sanctioning of agency enforcement action based on no hard evidence in an area that so clearly infringes on First Amendment freedoms is troubling. And, I doubt that the Fox ruling will greatly affect the D.C. Circuit's view of the Comcast appeal because the fundamental and inescapable question in the latter case is whether the FCC was acting within the scope if its delegated authority, a question on which the D.C. Circuit has considerable relevant experience. Moreover, it is well settled that agency interpretations of the scope of their own authority are entitled to no deference by the courts. The relevant APA standard on that issue is not whether the FCC's action was "arbitrary and capricious," but rather, whether it was "lawful." And we are confident that it was not.

posted by Barbara Esbin @ 10:38 AM | Free Speech , Internet Governance , The FCC