A New “Slant” on Pacifica?

BY LEITA WALKER AND MICHAEL GIUDICESSI

o paraphrase one observer: in Pacifica,” the Federal Circuit tried to Though its members diverged in their somewhere up there, George explain.6 reasoning, the Supreme Court unani- Carlin is smiling.1 Even so, there’s hope for vulgarity- mously affirmed (Justice Gorsuch took First, in June 2017, in loving true believers (a small but fierce no part in consideration or decision of TMatal v. Tam,2 the Supreme Court contingent, we imagine) that Carlin the case). struck as unconstitutional the Lan- may freely shout his seven dirty words The government raised three ham Act’s prohibition on the from the afterlife with the metaphysi- arguments in defense of the dispar- registration of “disparaging” trade- cal knowledge that, “in this electronic/ agement clause: (1) that trademarks marks, ruling that “[s]peech may Internet age,” Federal Communica- are a form of government speech, not be banned on the ground that it tions Commission (FCC) licensees rendering the First Amendment inap- expresses ideas that offend.” may broadcast them without fear or plicable, (2) that they are a form of Then, in December 2017, the Fed- sanction. government subsidy, and the gov- eral Circuit decided In re Brunetti,3 The hope stems in part from Asso- ernment is not required to subsidize striking a similar prohibition barring ciate Justice Ruth Bader Ginsburg’s activities it does not wish to pro- registration of “immoral” or “scandal- public statement that Pacifica“was mote, and (3) that a new test—a ous” marks—terms the court held wrong when it issued” and should be “government-program” doctrine— were synonymous with “vulgar.” Bru- revisited given “[t]ime, technologi- should apply.8 The Court unanimously netti held the government lacked a cal advances,” and recent rulings of rejected the first argument, stating substantial interest in “suppressing the FCC.7 Further, the sweeping, pro- that the government does not “dream speech because it is off-putting.” Even speech declarations Tam and Brunetti up” these marks, “edit” them, or (out- if it had such an interest, the court relied on to invalidate prohibitions on side of § 1052(a)) inquire into “whether quipped, “[i]n this electronic/Internet the registration of disparaging and any viewpoint conveyed by a mark is age . . . it has completely failed.” immoral and scandalous (i.e., vulgar) consistent with Government policy Actually, what Carlin would say— trademarks stand irreconcilable with or . . . that expressed by other marks” and, in fact did say, mercilessly and Pacificaand its ruling that the FCC already registered.9 “If the federal reg- with bug-eyes—is, “There is no ‘up can regulate speech that, though not istration of a trademark makes the there’ for people to be smiling down obscene, is “indecent.” mark government speech,” the Court from.”4 said, “the Federal Government is bab- Moreover, he might point out I. Background on Recent Lanham Act bling prodigiously and incoherently.”10 that, while making these modernday Decisions Only four justices—Alito, Thomas, assessments of values and effec- Breyer, and Chief Justice Roberts— tiveness, Brunetti also attempted to A. Matal v. Tam considered (and went on to reject) the distinguish FCC v. Pacifica Foun- Tam arose after Simon Tam, lead government’s other two arguments. dation5—the case arising out of an singer of the rock group “The Slants,” These justices also considered the afternoon radio broadcast of Carlin’s sought federal registration of his argument that trademarks are com- “Filthy Words” monologue. “The gov- band’s name—which he said he had mercial speech and thus subject to the ernment’s interest in protecting the adopted to “reclaim” the term and relaxed scrutiny outlined in Central public from profane and scandalous drain its denigrating force as a deroga- Hudson Gas & Elec. Corp. v. Public marks is not akin to the government’s tory term for Asians. Serv. Comm’n of N.Y. 11 They con- interest in protecting children and The Patent and Trademark Office cluded, however, that they did not other unsuspecting listeners from a (PTO) denied Tam’s application under need to resolve this debate because barrage of swear words over the radio 15 U.S.C. § 1052(a), which prohibits the disparagement clause could not the registration of trademarks that withstand even Central Hudson inter- may “disparage . . . or bring . . . into mediate review. Leita Walker is a partner in Faegre Baker contemp[t] or disrepute” any “persons, The remaining justices—Ken- Daniels LLP’s Minneapolis office, and living or dead.” After Tam unsuccess- nedy, Ginsburg, Sotomayor, and Michael Giudicessi is a partner in the firm’s fully contested the denial before the Kagan—found no reason to wade Des Moines office. Both practice media PTO’s Trademark Trial and Appeal into these issues, concluding instead law. Opinions expressed here are theirs Board (TTAB), he took his case to that because the Court had unani- and not their partners’, but they note those the Federal Circuit, which found the mously held § 1052(a) constituted partners who disagree can take a flying leap disparagement clause facially uncon- viewpoint discrimination, heightened at the moon. stitutional under the First Amendment. scrutiny applied and was not satisfied.

6 n Communications Lawyer n Winter 2018 Justice Thomas also wrote separately. not assert that the clause could sur- made on the logic of Pacifica. The Although he agreed that the dispar- vive strict scrutiny review. Rather, recent Lanham Act decisions, how- agement clause could not survive refining somewhat the position it ever, put the decision on even shakier Central Hudson analysis, he wrote to took in Tam, the government argued ground by suggesting that, one way express his belief that strict scrutiny that the clause did not implicate the or another, governmental regulation should apply regardless whether the First Amendment because trademark of scandalous and immoral—i.e., inde- speech was commercial.12 registration is either a government cent—content merits strict scrutiny subsidy program or a limited pub- and under that test violates the Consti- lic forum. Alternatively, it argued that tution. This article identifies two legal B. In re Brunetti trademarks are commercial speech strategies that emerge from those Tam did not address another pro- implicating only Central Hudson decisions. hibition in § 1052(a)—namely, one review.14 The court rejected all these barring registration of marks that “con- arguments, concluding that strict scru- sist[] of or comprise[] immoral . . . or tiny applied and that the scandalous A. Strategy No. 1: Arguing That the scandalous matter.” However, after clause could not survive intermediate FCC’s Indecency Regime Discriminates Tam, many predicted the demise of scrutiny, anyway. Based on Viewpoint this clause, as well. And, indeed, six In Tam, Kennedy, Ginsburg, Soto- months after Tam, the Federal Circuit II. Discussion mayor, and Kagan were steadfast that struck down the scandalous clause as In Pacifica, the Supreme Court con- strict scrutiny is automatic anytime unconstitutional. cluded nearly 40 years ago that the there is viewpoint discrimination,19 At issue in Brunetti was an attempt First Amendment permitted the FCC and in his separate concurrence to register the trademark “FUCT” for to “channel” broadcasting of indecent Thomas expressed his belief that use on clothing. The TTAB affirmed speech to the late-night hours. In so “when the government seeks to the PTO’s refusal to register the mark holding, the Court did not apply either restrict truthful speech in order to under the scandalous clause. On strict or intermediate scrutiny, though suppress the ideas it conveys, strict appeal, the Federal Circuit agreed that it acknowledged that the “Commis- scrutiny is appropriate, whether or not the FUCT mark was vulgar and there- sion’s objections to the broadcast were the speech in question may be charac- fore immoral and scandalous but based in part on its content” and that terized as ‘commercial.’”20 Meanwhile, concluded that the bar on registra- “the fact that society may find speech Alito, joined by Thomas, Breyer, and tion of such marks violated the First offensive is not a sufficient reason for Roberts acknowledged the possibility Amendment. suppressing it.”15 that Central Hudson’s intermedi- Because the meanings of “vulgar,” Instead, it engaged in a contextual ate scrutiny might apply, but only “immoral,” and “scandalous” are similar analysis, concluding that the FCC’s because trademarks have a commer- to, and perhaps synonymous with, the order was justified on two grounds. cial component.21 meaning of the FCC buzzword “inde- “First,” the Court said, “the broadcast Unlike trademarks, the speech tar- cent,” it is worth examining how the media have established a uniquely geted by the FCC’s indecency regime Federal Circuit defined these words. pervasive presence in the lives of all is purely expressive. Thus, it seems a The court began with the undisputed Americans,” meaning that when inde- foregone conclusion that strict scru- point that the word “fuck” is vulgar cent material is broadcast it “confronts tiny would apply if the FCC’s indecency and quickly concluded that FUCT, the citizen, not only in public, but also regime is deemed viewpoint based. the phonetic twin of “fucked,” is also in the privacy of the home, where So, is a ban on dirty words view- vulgar. It then went on to hold that the individuals’ right to be left alone point discrimination? The Federal a vulgar mark is a scandalous mark, plainly outweighs the First amend- Circuit found it unnecessary to decide thereby falling within the prohibition ment rights of an intruder.”16 “Second, this issue in Brunetti, though it did of §1052(a). In so holding, the court it said, “broadcasting is uniquely state that it “question[ed] the view- pointed to definitions of “scandal- accessible to children, even those too point neutrality of the immoral or ous” such as “shocking to the sense young to read.”17 In the Court’s view, scandalous provision.”22 Meanwhile, it of truth, decency, or propriety,” “giv- this fact, coupled with the govern- seems some Supreme Court justices— ing offense to the conscience or moral ment’s interest in “‘the well-being of its enough, with Ginsburg, to reverse feelings,” or “disgraceful,” “offensive,” or youth’” and “‘parents’ claim to author- Pacifica—might say “yes.” “disreputable.”13 ity in their own household’” justified “Giving offensive is a viewpoint,” Having concluded that the TTAB the regulation of otherwise protected Alito wrote in the plurality opinion in did not err in finding the trademark expression.18 Tam.23 The disparagement clause—he “FUCT” to be immoral and scandal- In 2018, when cable and Inter- later called it a “happy-talk clause”24— ous, the Federal Circuit turned to the net are as pervasive as broadcast may “evenhandedly prohibit[] constitutional issues and began by radio and television, when toddlers disparagement of all groups,” but it assuming, without deciding, that the know how to pull up YouTube videos “denies registration to any mark that is scandalous clause is viewpoint neu- on iPhones, and when our presi- offensive to a substantial percentage tral. The government conceded that dent drops linguistic bombs such of the members of any group” and “in the scandalous clause was, however, as “shithole” and “pussy,” there is no the sense relevant here, that is view- a content-based restriction, and it did shortage of attacks that could be point discrimination.”25

Winter 2018 n Communications Lawyer n 7 Commentators have questioned it “evoke[s]’ the memory of their ances- use of profanity perhaps conveyed whether Alito and the three justices tors and other soldiers who fought their viewpoints in ways more “decent” who joined him really meant what he for the South;” to others, “it symbol- language could not. As the Supreme said. Wrote Clay Calvert, izes slavery, segregation, and hatred.”31 Court stated in Cohen: But, he wrote, “[w]hatever it means to motorists who display that symbol and [O]ffense and viewpoint are to those who see it, the flag expresses [W]e cannot overlook the fact, not always the same. The word a viewpoint. The Board rejected the because it is well illustrated “fuck” is what gave offense plate design because it concluded that by the episode involved here, in [Cohen v. California26], not many Texans would find the flag sym- that much linguistic expression Paul Robert Cohen’s anti-draft bol offensive. That was pure viewpoint serves a dual communicative viewpoint. Taking offense at a discrimination.”32 function: it conveys not only word (“fuck”) is not the same as Interesting questions follow about ideas capable of relatively pre- discriminating against the view- whether Alito would force Texas to cise, detached explication, but point in which that word is used print “Fuck the Draft” on a license otherwise inexpressible emo- (“fuck the draft”). “Fuck,” stand- plate—or whether he would compel tions as well. In fact, words are ing alone without “the draft,” is it to print a stylized logo of just the often chosen as much for their not a viewpoint. Giving or taking F-word. To pick up on Calvert’s point, emotive as their cognitive force. offense therefore is not always a the argument that the government is We cannot sanction the view viewpoint.27 engaged in viewpoint discrimination that the Constitution, while solic- would seem to be at its nadir when itous of the cognitive content of the only “statement” at issue is com- individual speech, has little or no Further, there is no doubt that tak- prised of a mere four letters. On the regard for that emotive function ing Alito at his word—and taking that other hand, it seems obvious that a which, practically speaking, may word out of context—could lead to stand-alone profanity conveys some- often be the more important unintended consequences (or at least thing—perhaps, as with Brunetti’s element of the overall message thorny questions). As the PTO argued FUCT mark, a particularly “subversive” sought to be communicated. . . . in a letter brief to the Federal Circuit or “in-your-face” worldview.33 Those . . . [I]n the same vein, we cannot in Brunetti, to hold that the scandal- confronted by a license plate or t-shirt indulge the facile assumption ous clause is anything other than that says “fuck” may not fully under- that one can forbid particular viewpoint neutral might preclude stand the speaker’s intent and may words without also running a the government “from restricting reach different conclusions about her substantial risk of suppressing the use of graphic sexual images or viewpoint. But according to Alito, that ideas in the process.35 profane language within a govern- doesn’t matter. ment program or in a nonpublic or In any event, FTC indecency regu- limited-public forum”—such as adver- lation—which rarely if ever involves Likewise, in his dissent in Pacifica, tisements on city buses.28 profanities uttered in a vacuum— Justice Brennan called “transparently And yet, Tam is not the first time would seem to present an easier case fallacious” the “idea that the content that Alito has defined viewpoint dis- for Alito and those who align with him of a message and its potential impact crimination broadly, which suggests than a stand-alone profanity on a gov- on any who might receive it can be he was writing carefully, not carelessly. ernment-issued license plate. Carlin’s divorced from the words that are the Most notable is his dissent (joined monologue was a monologue. Though vehicle for its expression.”36 by Roberts, Scalia, and Kennedy) in perhaps assaultive to some listeners, it Thus, regardless whether “giving Walker v. Texas Div., Sons of Con- was more than just the f-word droned offense” is always a viewpoint, when federate Veterans, Inc.29—the case over and over. And recent enforce- offensive speech is used to express holding that specialty license plates ment actions have involved use of a viewpoint, it is all but impossible are government speech and that Texas profane language emotively, to punc- to disentangle vulgarity from view- could deny an application for a design tuate statements about other things: point without changing, at least to featuring the Confederate flag. “F*** ’em,” said Cher about her crit- some degree, the larger message In the dissent, Alito analogized ics, in one enforcement action, while itself. In the case of Cher and Richie, license plates to “mini billboards” and Nicole Riche asked an audience, “Have stripping their statements of the four- wrote, “what Texas did here was to you ever tried to get cow s*** out letter words they chose would have reject one of the messages that mem- of a Prada purse? It’s not so f***ing rendered them (at least to some) less bers of a private group wanted to simple.”34 triumphant, disdainful, funny, and post on some of these little billboards These statements are hardly on par rebellious—and thus less impactful. It because the State thought that many with the Gettysburg Address, but they seems unavoidable that by regulating of its citizens would find the message do express a viewpoint—Cher was indecent speech, the FCC is regulating offensive. That is blatant viewpoint dis- celebrating her staying power while the viewpoint such speech conveys. crimination.”30 Alito pointed out that dismissing her critics, while Richie And at that point, the justices agree, the Confederate flag means different was challenging the stereotype that strict scrutiny kicks in. things to different people—for some, rural life is really “simple.” And their

8 n Communications Lawyer n Winter 2018 B. Strategy No. 2: Arguing That the 1. Analogizing the Air Waves to a Lim- group has had sufficient opportunity Indecency Regime Is Unconstitutional ited Purpose Public Forum Subject to present its viewpoint and whether a Even If It Is Viewpoint Neutral to Reasonable Restrictions on Speech particular viewpoint has already been Although the Supreme Court’s Poses Serious Doctrinal Issues sufficiently aired.’”49 decision in Tam turned on the As it turns out, the idea that the pub- This level of government interfer- unanimous conclusion that the dis- lic air waves constitute a limited ence/oversight simply would not be paragement clause discriminated public forum is highly problematic, as consistent with Congress’ goals in based on viewpoint, the Federal highlighted in Arkansas Educ. Tele- adopting the modern system of broad- Circuit previously had subjected vision Comm’n v. Forbes.42 Indeed, cast regulation.50 Along similar lines, the disparagement clause to strict the United States appeared as amicus any rule that encourages licensees to scrutiny as “either a content-based curiae in that case, arguing that the “exclud[e] partisan voices” and present or viewpoint-based regulation of Court’s forum precedents should be views “in a bland, inoffensive manner expressive speech.”37 Likewise, in of little relevance in the context of would run counter to the ‘profound Brunetti, the Federal Circuit found broadcasting.43 national commitment that debate on no reason to decide whether the Forbes arose from exclusion of a public issues should be uninhibited, scandalous clause discriminated third-party political candidate from robust, and wide-open.’”51 based on viewpoint, concluding that a debate broadcast by a public (i.e., Thus, although the Forbes court because it regulated the expressive state-owned) television station. The ultimately concluded that certain con- components of trademarks and dis- Court of Appeals held that his exclu- stitutional constraints were applicable criminated based on content strict sion violated the First Amendment, in the context of a political debate scrutiny applied.38 applying public forum precedent. In sponsored by a public broadcaster, it Thus, if a viewpoint discrimina- reversing, the Supreme Court began went out of its way to state that “public tion attack on the FCC’s indecency by considering whether public forum broadcasting as a general matter does regime were to fail, the obvious fall- principles applied at all, ultimately not lend itself to scrutiny under the back position would be: It doesn’t concluding that they were not a good forum doctrine.”52 The same is certainly matter. The FCC’s indecency regime fit, even in the context of a public true of private broadcasting, which is indisputably content based,39 broadcast. even the FCC recognized more than 30 and strict scrutiny is thus required The public forum doctrine arose in years ago is a different medium than regardless. the context of streets and parks, the at the time of Red Lion.53 That said, the Federal Circuit Court explained, where open access in Tam and Brunetti made its pro- and viewpoint neutrality is “‘compat- 2. Brunetti’s Conclusion That the nouncement that strict scrutiny ible with the intended purpose of the Scandalous Clause Could Not Sur- always applies to content regula- property.’”44 However, in the case of vive Intermediate Scrutiny Suggests tion in the context of the Lanham television broadcasting, “broad rights the FCC’s Indecency Regime Cannot, Act, not FCC indecency regulation. of access for outside speakers would Either Meanwhile, it’s never been entirely be antithetical . . . to the discretion Turning back to Brunetti’s discussion clear what sort of scrutiny should that stations and their editorial staff of intermediate scrutiny, the Fed- apply to the FCC’s regime. Indeed, must exercise to fulfill their journalist eral Circuit applied the four-factor Pacifica does not discuss that issue purpose and statutory obligations.”45 test applicable to commercial speech at all.40 This discretion, the Court continued to under Central Hudson: whether (1) Thus, any advocate for overturn- explain, inevitably results in choosing the speech concerns lawful activity ing Pacifica would need to pursue among speakers and viewpoints—i.e., and is not misleading, (2) the asserted a third argument as well—namely, in viewpoint discrimination.46 government interest is substantial, that the indecency regime cannot But of course, even in a limited pub- (3) the regulation directly advances even survive intermediate scrutiny. lic forum, viewpoint discrimination that government interest, and (4) the The Brunetti opinion is helpful on is unconstitutional.47 Thus, although regulation is no more extensive than this point, as well. But before dis- a holding that the public airwaves necessary.54 That test is not a per- cussing why the scandalous clause are some sort of limited public forum fect fit for the noncommercial speech failed to withstand even intermedi- might mean that the FCC would face regulated by the FCC’s indecency ate scrutiny (and why the indecency a less demanding degree of scru- regime; nevertheless, the court’s anal- regime might, as well), it is worth tiny when imposing restrictions on ysis of the factors suggests that the pausing to briefly consider whether its licensees, such holding would also FCC’s regime would have difficulty the “public forum” arguments mean that no viewpoint discrimina- surviving intermediate scrutiny, much rejected in both Tam and Brunetti tion can occur on said air waves.48 And less strict scrutiny. might fare better in a challenge to that holding would, in turn, “obstruct The Brunetti court characterized Pacifica. After all, the air waves the legitimate purposes of televi- the government’s interest in prohib- belong to the public, and, in his sion broadcasters” and would require iting the registration of scandalous dissent in Pacifica, Brennan char- courts “‘to oversee far more of the marks as “protecting public order and acterized the majority’s opinion as day-to-day operations of broadcast- morality” and then deemed such inter- approving “time, place, and man- ers’ conduct, deciding such questions est not sufficiently substantial.55 The ner” regulation of broadcasters.41 as whether a particular individual or Federal Circuit explained,

Winter 2018 n Communications Lawyer n 9 Supreme Court precedent television, for that matter) no longer regulators apply as much to indecent makes clear that the govern- has a “uniquely pervasive presence” in broadcasts as to scandalous marks. It ment’s general interest in American life. It now competes—or is difficult to see how the FCC’s regime protecting the public from perhaps has been usurped by—You- advances the government’s interest in marks it deems “off-putting,” Tube, Internet radio, satellite radio, a narrowly tailored way any more than whether to protect the general podcasts, Facebook, cable television, the scandalous clause did. public or the government itself, and other media where all sorts of pro- is not a substantial interest jus- fanities and perversions are readily III. Conclusion tifying broad suppression of available.59 The FCC does not regulate The call to apply strict scrutiny to the speech. “[T]he fact that society these media. Thus, its regulation of FCC’s indecency regime is hardly new. may find speech offensive is not broadcast radio and television does lit- Indeed, the Second Circuit said more a sufficient reason for suppress- tle to advance its purported interest. than seven years ago in the Cher/ ing it.”56 Meanwhile, what is indecent—just Richie case that it can “think of no rea- like what is scandalous—is subject to son why” strict scrutiny should not It then went on to conclude that the whims of regulators. As the Sec- apply . . . except, of course, the bind- even if the government had a substan- ond Circuit wrote in its first opinion in ing precedent of Pacifica.61 The recent tial interest in protecting the public the Cher/Richie case: Lanham Act decisions suggest that from scandalous or immoral marks, the Supreme Court is more ready than the government could not establish Although the Commission has ever to strike that precedent down, that its ban on the registration of such declared that all variants of “fuck” and they provide free-speech advo- marks advanced that interest: and “shit” are presumptively cates with an arsenal of arguments to indecent and profane, repeated use in pursuit of that objective. Regardless of whether a trade- use of those words in “Saving mark is federally registered, an Private Ryan,” for example, was Endnotes applicant can still brand cloth- neither indecent nor profane. 1. Scott Graham, “Federal Cir- ing with his mark, advertise with And while multiple occurrences cuit Wrestles with Vulgar Trademarks it on the television or radio, or of expletives in “Saving Private in ‘FUCT’ Case,” Corporate Coun- place it on billboards along the Ryan” was not gratuitous, a sin- sel (Aug. 30, 2017), https://www. highway. In this electronic/Inter- gle occurrence of “fucking” in law.com/insidecounsel/2017/08/30/ net age, to the extent that the the Golden Globe Awards was federal-circuit-wrestles-with-vulgar-trade- government seeks to protect “shocking and gratuitous.” Paren- marks-in/?slreturn=20171118170233. the general population from tal ratings and advisories were 2. 137 S. Ct. 1744, 1751 (2017). scandalous material, with all important in finding “Saving Pri- 3. 877 F.3d 1330, 1352–53 (Fed. Cir. 2017). due respect, it has completely vate Ryan” not patently offensive 4. See https://www.youtube.com/ failed.57 under contemporary community watch?v=3PiZSFIVFiU for Carlin’s thoughts standards, but irrelevant in eval- on death and the afterlife. Finally, the Federal Circuit con- uating a rape scene in another 5. 438 U.S. 726 (1978). cluded that the scandalous clause was fictional movie. The use of 6. Brunetti, 877 F.3d at 1353 not narrowly tailored because it gave numerous expletives was “inte- 7. FCC v. Fox Television Stations, Inc., too much discretion to the examin- gral” to a fictional movie about 567 U.S. 239, 259 (2012) (Ginsburg, J., ing attorney at the PTO, noting that war, but occasional expletives concurring). “[n]early identical marks have been spoken by real musicians were 8. 137 S. Ct. at 1757. approved by one examining attorney indecent and profane because 9. Id. at 1758. and rejected as scandalous or immoral the educational purpose of 10. Id. by another.”58 the documentary could have 11. 447 U.S. 557 (1980). As noted above, the Brunetti court been fulfilled and all viewpoints 12. 137 S. Ct. at 1769 (Thomas, J., attempted to distinguish Pacifica, in expressed without the repeated concurring). which the articulated government broadcast of expletives.” The 13. Brunetti, 877 F.3d at 1339. interest was to protect Americans, “S-Word” on The Early Show was 14. Id. at 1340. especially children, from indecency in not indecent because it was in 15. Pacifica, 438 U.S. at 744, 745. the privacy of their own homes, given the context of a “bona fide news 16. Id. at 748. This rationale mirrors the “uniquely pervasive presence” of interview,” but “there is no out- the justifications cited inRed Lion Broad- radio. From the outset, the dissent- right news exemption from our casting, Co. v. FCC, 395 U.S. 367 (1969) ing justices disputed that such interest indecency rules.”60 (upholding the fairness doctrine based on was sufficient to justify the outcome in characteristics of broadcasting as the “new Pacifica. But even if protecting solic- In sum, even if safeguarding media” and a scarcity theory). itude and children is a substantial solicitude and protecting children 17. Id. at 749. interest, it is hard to see how, in 2018, from indecent speech are substan- 18. Id. at 749–50 (quoting Ginsberg v. the regime advances that interest in a tial government interests, Brunetti’s New York, 390 U.S. 629, 639 (1968)). narrowly tailored way. acknowledgement of the realities of 19. 137 S. Ct. at 1750. Over-the-air, broadcast radio (or modern life and the idiosyncrasies of 20. Id. at 1769 (Thomas, J., concurring).

10 n Communications Lawyer n Winter 2018 21. Id. at 1749. the FCC’s indecency regime must pass legislative history and concluding that 22. Brunetti, 877 F.3d at 1341. Later in strict scrutiny under the First Amendment “Congress intended to permit private its opinion, however, the Federal Circuit because it is fundamentally content- broadcasting to develop with the wid- seemed to take a narrower view of view- based regulation.”). Courts, however, have est journalistic freedom consistent with its point discrimination when it discussed expressed doubt. See, e.g., Fox Television public obligations”). Hustler Magazine, Inc. v. Falwell, 485 U.S. Stations v. FCC, 489 F.3d 444, 464 (2d Cir. 51. Id. at 112 (quoting New York Times 46 (1988), and stated that the parody of 2007) (Fox I) (recognizing “some tension Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Jerry Falwell’s “first time” did “not clearly in the law regarding the appropriate level 52. Forbes, 523 U.S. at 675. involve the expression of beliefs, ideas, or of First Amendment scrutiny”), rev’d and 53. See Inquiry into § 73.910 of the perspectives.” Brunetti, 877 F.3d at 1352. remanded, 556 U.S. 502 (2009); see also Fox Comm’n’s Rules & Regulations Concerning 23. 137 S. Ct. at 1763. Television Stations, Inc. v. FCC, 613 F.3d the Gen. Fairness Doctrine Obligations of 24. Id. at 1765. 317, 326 (2d. Cir. 2010) (Fox II) (“While Paci- Broad. Licensees, 102 FCC 2d 143 (1985). 25. Id. at 1763. fica did not specify what level of scrutiny 54. Brunetti, 877 F.3d at 1350. 26. 403 U.S. 15 (1971). applies to restrictions on broadcast speech, 55. Id. 27. Clay Calvert, “Beyond Trademarks subsequent cases have applied something 56. Id. at 1351 (quoting Hustler Maga- and Offense: Tam and the Justices’ Evo- akin to intermediate scrutiny.”), vacated and zine, Inc. v. Falwell, 485 U.S. 46, 55 (1988). lution on Free Speech,” Cato Institute: remanded, 567 U.S. 239 (2012). Meanwhile, 57. Id. at 1353. Supreme Court Review at 53 (2016– the FCC itself has taken the position that 58. Id. 17), available at https://www.cato.org/ broadcasting is different than other media 59. See, e.g., Fox II, 613 F.3d at 326 (“[W] supreme-court-review/2016-2017. and that “something less than First Amend- e face a media landscape that would have 28. PTO Letter Brief at 3, In re Brunetti, ment strict scrutiny should apply to the been almost unrecognizable in 1978.”). No. 2015-1109 (Fed. Cir. July 20, 2017); see review of the agency’s indecency regula- 60. Fox I, 489 F.3d at 463 (citations also id. at 14. tion.” Levi, supra, at 42. omitted). 29. 135 S. Ct. 2239 (2015). 41. Pacifica, 438 U.S. at 763 (Brennan, J., 61. Fox II, 613 F.3d at 327. 30. Id. at 2255–56 (Alito, J., dissent- dissenting). ing) (emphasis added); see also id. at 2262 42. 523 U.S. 666 (1998). (Alito, J., dissenting) (“The Board rejected 43. Id. at 672. Texas SCV’s design, “‘specifically the confed- 44. Id. at 673 (quoting Perry Educ. Ass’n erate flag portion of the design, because v. Perry Local Educators’ Ass’n, 460 U.S. 37, public comments have shown that many 49 (1983)). members of the general public find the 45. Id. design offensive, and because such com- 46. Id. at 673–74. ments are reasonable.’ . . . These statements 47. Tam, 137 S. Ct. at 1764; Brunetti, indisputably demonstrate that the Board 877 F.3d at 1346 (“As with traditional and denied Texas SCV’s design because of its designated public forums, regulations viewpoint.”). that discriminate based on viewpoint 31. Id. at 2262 (Alito, J., dissenting). in limited public forums are presumed 32. Id. (emphasis added). unconstitutional.”). 33. Brunetti Letter Brief at 9, In re Bru- 48. See, e.g., CBS v. Democratic Nat’l netti, No. 2015-1109 (Fed. Cir. Aug. 9, 2017). Comm., 412 U.S. 94, 140 (1973) (Stewart, J., 34. Fox, 567 U.S. at 247. concurring) (“If, as the dissent today would 35. Cohen, 403 U.S. at 25–26. have it, the proper analogy is to public 36. Pacifica, 438 U.S. at 773 (Brennan, J., forums—that is, if broadcasters are Govern- dissenting). ment for First Amendment purposes—then 37. Brunetti, 877 F.3d at 1340 (citing In broadcasters are inevitably drawn to the re Tam, 808 F.3d 1321, 1339 (Fed. Cir. 2015)) position of common carriers.”); id. at 143 (emphasis added). (“Were the Government really operating 38. Id. at 1342, 1348–49. the electronic press, it would, as my Brother 39. Pacifica, 438 U.S. at 744 (“The words Douglas points out, be prevented by the of the Carlin monologue are unquestion- First Amendment from selection of broad- ably ‘speech’ within the meaning of the cast content and the exercise of editorial First Amendment. It is equally clear that the judgment. It would not be permitted in Commission’s objections to the broadcast the name of ‘fairness’ to deny time to any were based in part on its content.”). person or group on the grounds that their 40. Some commentators seem to take views had been heard ‘enough.’ Yet broad- for granted that strict scrutiny applies and casters perform precisely these functions always has. See Lili Levi, “The FCC’s Regula- and enjoy precisely these freedoms under tion of Indecency,” First Amendment Center: the Act.”). First Reports at 7 (2008), available at http:// 49. Forbes, 523 U.S. at 674 (quoting CBS, www.newseuminstitute.org/first-amend- 412 U.S. at 127). ment-center/publications/ (“Ultimately, 50. See CBS, 412 U.S. at 110 (reviewing

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