Countdown now to the decision on Obamacare. Seven days to go before the end of the term for the Supreme Court, and any day could be the day when the Court delivers its judgment. But the Court seems to be clearing away a number of decisions that will not cause convulsions in the landscape. And so we find a remarkable ensemble of cases narrowed to questions quite refined and technical and bringing forth—of all things—unanimous decisions. Everyone is expecting, on Obamacare, a Court quite polarized, and so the Court comes out with a string of cases with the alignments a bit skewed and, for some of us, puzzling. When a case raises an issue of the 6th Amendment and the right of the accused to "confront" the witnesses and evidence against him, Justice Scalia veers to a categorical position. And so, on Monday, in a case on expert evidence and "confrontation," Scalia joined a dissent with Justices Sotomayor, Kagan, and Ginsburg, while Justice Breyer joined Justices Alito, Roberts, Kennedy, and Thomas in the majority. On Thursday morning, in Southern Union v. United States, a case on juries and the assigning of criminal fines, Justice Scalia came over to support a majority opinion by Justice Sotomayor, joined also by Roberts and Thomas. On the other side, Justices Alito and Kennedy joined Justice Breyer in a dissenting opinion.
In this curious amalgam of cases decided unanimously and with alignments skewed, the Court released its decision, long-awaited, on the case of "indecency" and the Federal Communications Commission (FCC v. Fox Television Stations). When that case was argued in January, it seemed to have all of the ingredients of a momentous case, and the courtroom was packed with First Amendment mavens: Did the law have access to the standards of judgment that could justify barring certain words or images as just too gross or vulgar? Could the law not reach judgments on the kind of material not fit to be shaping the sensibility of the public? Has the law not traditionally made judgments on the kinds of entertainments fit for a decent people-as when the law bars cockfighting and executions as spectator sports? But the Court on Thursday managed to produce the surprise of a virtually unanimous decision (Justice Sotomayor recused herself). And that unanimity was achieved at the cost of an outcome that decided virtually nothing of those issues that made the case, for its moment on the stage, really seem momentous. It may be the measure of the Court in its current state that we may almost grateful when the Court decides not to decide.
Justice Kennedy, writing for the Court, made it clear that the Court was not casting a judgment on any of those gripping questions that raised concerns about the restriction of language and nudity in prime time. The Court "need not address," he said, "the First Amendment implications of the Commission's indecency policy." During the oral argument, Justices Kennedy and Scalia noted the legitimate concern of the law with the tendency to vulgarity that was being promoted in the media. The Chief Justice had intervened at one moment to note that the FCC was showing a sharper concern than it had shown, say, in the 1950's because there had been the most striking change in the material thought fit for broadcasting to the public. But nothing in the handling of the case would press the judges to explain the grounds of these judgments and justify the claim of the law to restrain these public entertainments. As Justice Kennedy framed the problem, the Court was deciding the case solely on the grounds of Due Process: Whether the FCC engaged standards that were finally defensible or indefensible would be a matter beside the point here. The concern was that the agency did not give a fair warning to the networks of the standard that would be brought down on them with the reproach of the law.
I say "reproach of the law" because, in all strictness, the FCC meted out no punishment for what it took to be breaches of decency in broadcasting. That is not likely the way that the case will be played in the media. We are more likely to hear that the Court struck down an attempt by the FCC to be "judgmental" -to impose standards of propriety in restricting certain words or images as not fit for broadcast to the general public. In the courts of appeal, the want of clear warning was instantly associated with the claim of "vagueness" and Justice Kennedy did nothing to dispel that claim. But if we look closely, we would discover that the Court did not in fact try to argue that there was anything "vague" about the standard that the FCC was applying. And if one concedes, as the Court did, that there was nothing arbitrary about the standards used by the FCC, one could raise the question of why the networks should not have had warning quite ample and fair about the standards that the FCC was bringing to bear. When we add things up, we may wonder whether the judges themselves had been suffering a certain confusion here. Or could it be that they were affecting confusion as a slender excuse for just avoiding a decision on a contentious matter?
Let's recall then more exactly what the offense was in the case. There were a string of cases, in which the notable "f-word" had flared:
—The singer Cher, receiving an award, remarked that "I've also had my critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em."
—In a broadcast for the Billboard Music Awards in 2003, Ms. Nicole Richie presented an award and said, "Have you ever tried to get cow s*** out of a Prada purse? It's not so f***ing simple."
—A third incident involved an episode of NYPD Blue, a series broadcast on ABC. As the Court noted, one episode, in February 2003, "showed the nude buttocks of an adult female character for approximately seven seconds and for a moment the side of her breast. During the scene, in which the character was preparing to take a shower, a child portraying her boy friend's son entered the bathroom. A moment of awkwardness followed."
A few years earlier these kinds of cases were regarded by the FCC as instances of what might be called "fleeting expletives." As the Commission explained, these seemed to be isolated instances, not part of a recurring pattern. And so the FCC did not think they would support a judgment of indecency and a sanctioning of the network. That was a prudential judgment, reasonable on its face, and there was no want of clarity about the standards that the FCC was applying in its cases. The Commission condensed them in this way:
(1) [T]he explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value."
As to the F-word, marking some of these cases, no one had the temerity to suggest that there was even a hint of arbitrariness in picking out this word as a word clearly understood as a jolt out of the framework of respectable language; a word that was used quite self-consciously for the purpose of shocking. The Court showed its own, telling recognition here when it held back from reproducing that very word in its own decision. Justice Kennedy refers, in his opinion, to the "F-word." The Court could hardly challenge the judgment that the FCC could tenably bar this word from prime time, when the justices themselves evidently regard the word as one that is rightly screened from their own documents.
The question then was whether the FCC made an arbitrary move when it viewed this late, unfolding record of incidents and put out this warning to the networks: "the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent." This apparently is where Justice Kennedy and his colleagues found a "reversal" of policy that marked a shift in the law. And with that shift, the networks did not have, he thought, "fair notice that its broadcast could be found indecent."
But could that really have been true for anyone functional in this world-that the networks had no fair notice, no reason to expect a reproach from the law? The Commission had held that the F-word was "one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language." Surely, no one could have been taken by surprise by that "finding," and the Supreme Court itself tacitly confirmed that point in its own censoring of that word. But then what about the shift from regarding these uses of the F-word as merely "fleeting"? Are we to suppose that it is really beyond the comprehension of the urbane heads of networks, their pricey lawyers, or even the members of the Supreme Court that the commissioners of the FCC could come to a judgment explained in this way: The isolated instances of obscenity or "indecency" may be fleeting, but there is nothing at all "fleeting" about them when they form a series that promises to keep recurring. And they are all the more likely to keep recurring when their pattern stirs no awareness in the networks that the law in fact is being steadily mocked, subtly turned into a nullity.
Every day in the law of torts people are being held responsible for harms they inflicted when they should have known better. And they usually suffer serious fines. But what was the punishment in this case of the networks? I noted earlier that Fox and the other networks were receiving the "reproach of the law." And yet, that was it, a reproach. There was no penalty visited on the networks. As Justice Kennedy conceded, the Commission "declined to impose any forfeiture on Fox." Nor would it consider the adverse finding here when it came time to renew the broadcast license. The Court found that Fox and the networks had not received a fair warning as to what the law expected them to do, and yet the networks had suffered no punishment. The critical point for Justice Kennedy and his colleagues was that the Commission has the statutory power to take account of "any history of prior offenses" when ordering a forfeiture or penalties in the future. In other words, the reproach itself, the finding of wrongdoing, created the possibility of some punishment in the future, even though the networks had suffered no punishment; even though they had been treated on the bases of standards that should have caused no surprise or puzzlement; and even when a shift in enforcement should have been seen as thoroughly reasonable. To an outsider coming new to the record, the case has all the earmarks of a Commission simply putting people on notice while prudently holding back the hand of punishment. And the point would be to let people catch up with the awareness that the same standards would be enforced now in a more demanding way.
In any case, if the concern was simply the presence of adequate warning, the Commission could simply note that the networks now have been quite amply warned: Conceivably, the Commission could simply come forth now with a categorical rule, banning any incident that violates the standards now well settled. Or it may warn that any incident will be treated, not as "fleeting" or isolated, but as the possible beginning of a series that must be barred from unfolding. And at that point, as Justice Kennedy warns, the courts will be free "to review the current policy or any modified policy in light of its content and application." Which is to say, the Court would then face, directly, all of those serious questions it chose to kick down the road this year.
In the oral argument, and in the briefs offered in the courts below, the curious claim was made that the standards are arbitrary when they may shift from one case to another. But what lawyers and judges took as signs of arbitrariness were simply the normal operations of practical judgment in applying principles to cases. And so it was taken, strangely, as a sign of arbitrariness that the same commissioners who could object to a few seconds of nudity in NYPD Blue might not find anything objectionable or "indecent" in a shot of frontal nudity in a moment in "Schindler's List." The scene recalls for me a moment in the film, The Pawnbroker, when a man remembers his own wife, taken as a sexual toy by an officer in a concentration camp. The viewers see her breasts, but there is no meaning here comparable to the meaning of pornography or tawdry entertainment. Here, as elsewhere, the judgment may be dependent on the context, and indeed mistakes could be made. But the prospect of mistakes is simply immanent in the task of practical judgment from one case, one set of circumstances, to another. My own view is that the distinction here was quite defensible. And yet, even if we disagree, the grounds of the disagreement admit reasons. The very fact of a different judgment on nudity from one case or another does not indicate that there is anything the least vague in the standards or anything arbitrary in the task of judgment itself.
These kinds of confusions, I'm afraid, were packed into the problem that the Court dealt with in the case of FCC v. Fox Television Stations. It may indeed be a mercy that a Court suffering these kinds of confusions took a safer course by simply backing away from a decision more momentous, requiring reasoning far more strenuous. But as we continue the countdown, waiting for the decision on Obamacare, we can only hope that this was not a flexing of those powers of reasoning that the Court will be offering us in that case, coming soon, that is truly momentous.
Hadley Arkes is the Senior Fellow of the Claremont Institute's Center for Constitutional Jurisprudence