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Free Speech, Fleeting Expletives, and the Causation Quagmire: Was Justice Scalia Wrong in Fox Television Stations?

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Free Speech, Fleeting Expletives, and the Causation Quagmire: Was Justice Scalia Wrong in Fox Television Stations? CALVERT &B UNKER FINAL PAGES (DO NOT DELETE) 10/22/2010 2:21 PM Free Speech, Fleeting Expletives, and the Causation Quagmire: Was Justice Scalia Wrong in Fox Television Stations? CLAY CALVERT* MATTHEW D. BUNKER** TABLE OF CONTENTS I. INTRODUCTION .................................................................................................. 738 II. JUSTICE SCALIA’S RULING ON CAUSATION OF HARM AND THE OPPORTUNITIES FOR COMMUNICATION RESEARCH THAT IT OPENS ........................................................................................................... 742 A. The Analysis of Causation of Harm in Fox Television Stations ............... 743 1. Assertion No. 1 .................................................................................. 744 2. Assertion No. 2 .................................................................................. 746 3. Assertion No. 3 .................................................................................. 749 4. Assertion No. 4 .................................................................................. 754 B. Communication Research ........................................................................ 755 * Professor & Brechner Eminent Scholar in Mass Communication and director of the Marion B. Brechner First Amendment Project at the University of Florida, Gainesville, Florida. B.A. (with Distinction), 1987, Communication, Stanford University; J.D. (Order of the Coif), 1991, McGeorge School of Law, University of the Pacific; Ph.D., 1996, Communication, Stanford University. Member, State Bar of California. Professor Calvert thanks Stephanie M. Favilli, Peter Posada, and Andrea Ugaz of the University of Florida for their helpful reviews and comments on early drafts of this article. ** Reese Phifer Professor of Journalism, College of Communication and Information Sciences, University of Alabama, Tuscaloosa, Alabama. B.S., 1979, Business Administration, Kansas State University; J.D., 1985, University of Kansas; M.S., 1989, Mass Communication, Kansas State University; Ph.D., 1993, Mass Communication, University of Florida. 737 CALVERT &B UNKER FINAL PAGES (DO NOT DELETE) 10/22/2010 2:21 PM III. JUDICIAL INCONSISTENCY AND INCOHERENCE ON CAUSATION OF HARM FROM MEDIA MESSAGES ......................................................................... 758 A. Violent Video Games ............................................................................... 759 B. Commercial Speech ................................................................................. 761 C. Trademark Dilution ................................................................................. 768 IV. CONCLUSION ..................................................................................................... 772 I. INTRODUCTION In FCC v. Fox Television Stations, Inc.,1 a badly fractured United States 2 Supreme Court in 2009 narrowly upheld the Federal Communications Commission’s (FCC or Commission) recent change and decision in its 1. 129 S. Ct. 1800 (2009). 2. Justice Antonin Scalia authored the opinion of the Court, with the exception of Part III-E, which is a response to the arguments set forth in the dissenting opinions. Id. at 1805–19. Justice Clarence Thomas offered a concurring opinion that agreed with the result but questioned the viability of two prior U.S. Supreme Court opinions—Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969), and FCC v. Pacifica Foundation, 438 U.S. 726 (1978)—that, respectively, provide the precedent, in the face of First Amendment concerns, for giving the FCC the power to closely regulate broadcasting and to punish broadcast indecency. Fox Television Stations, 129 S. Ct. at 1819–22 (Thomas, J., concurring). Justice Anthony Kennedy issued an opinion, concurring in part and concurring in the judgment, in which he emphasized that when a government agency, like the FCC, makes a sudden shift in policy, the “decision to change course may be arbitrary and capricious if the agency ignores or countermands its earlier factual findings without reasoned explanation for doing so,” and that “[a]n agency cannot simply disregard contrary or inconvenient factual determinations that it made in the past, any more than it can ignore inconvenient facts when it writes on a blank slate.” Id. at 1824 (Kennedy, J., concurring). Justice John Paul Stevens wrote a dissenting opinion that both emphasized the High Court’s narrow treatment and ruling on indecency in Pacifica Foundation and criticized the FCC for adopting “an interpretation of ‘indecency’ that bears no resemblance to what Pacifica contemplated.” Id. at 1827–28 (Stevens, J., dissenting). Justice Ruth Bader Ginsburg issued a dissenting opinion in which she not only found that the FCC’s decision to change its indecency policy was arbitrary and capricious, but that also emphasized “that there is no way to hide the long shadow the First Amendment casts over what the Commission has done. Today’s decision does nothing to diminish that shadow.” Id. at 1828 (Ginsburg, J., dissenting). Finally, Justice Stephen Breyer issued a dissenting opinion that was joined by Justices Stevens and Ginsburg, as well as Justice David Souter, in which Breyer found that the FCC failed adequately to explain why it changed its indecency policy from a policy permitting a single “fleeting use” of an expletive, to a policy that made no such exception. Its explanation fails to discuss two critical factors, at least one of which directly underlay its original policy decision. Its explanation instead discussed several factors well known to it the first time around, which by themselves provide no significant justification for a change of policy. Id. at 1829 (Breyer, J., dissenting). 738 CALVERT &B UNKER FINAL PAGES (DO NOT DELETE) 10/22/2010 2:21 PM [VOL. 47: 737, 2010] Free Speech SAN DIEGO LAW REVIEW indecency3 enforcement policy4 to punish broadcasters for the isolated airing of fleeting expletives in time periods that fall outside of the Commission’s designated safe-harbor time period.5 In doing so, the High Court deftly dodged the First Amendment6 question about the constitutionality of targeting such expression7 and instead based its decision on the administrative law question of whether the FCC’s change in policy was arbitrary and capricious in violation of the Administrative Procedure Act (APA).8 This Article concentrates on one particular issue raised in the Fox Television Stations ruling—the critical question of causation of harm caused by mass media messages and, in particular, the quantum of evidentiary proof needed by a federal agency to demonstrate causation sufficient to justify restricting the speech in question. The issue is ripe for review, given the following statement by Justice Antonin Scalia in the opinion of the Court in Fox Television Stations: 3. Federal law provides the FCC with the statutory authority to regulate “obscene, indecent, or profane language.” 18 U.S.C. § 1464 (2006). The FCC today defines indecent speech as “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” Fed. Commc’n Comm’n, FCC Consumer Facts: Obscene, Indecent, and Profane Broadcasts, http://www.fcc.gov/cgb/consumerfacts/obscene. html (last visited July 25, 2010). 4. See generally JEREMY HARRIS LIPSCHULTZ, BROADCAST AND INTERNET INDECENCY: DEFINING FREE SPEECH (2008) (providing a comprehensive review of the FCC’s enforcement policies targeting broadcast indecency). 5. The notion of a safe-harbor zone refers to the time period between 10 p.m. and 6 a.m., local time. During this time period, a station may air indecent and/or profane material. In contrast, there is no “safe harbor” for the broadcast of obscene material. Obscene material is entitled to no First Amendment protection, and may not be broadcast at any time. Fed. Commc’n Comm’n, Frequently Asked Questions: Obscenity, Indecency & Profanity, http://www.fcc.gov/eb/oip/FAQ.html#TheLaw (last visited July 25, 2010). 6. The First Amendment to the United States Constitution provides, in pertinent part, that “Congress shall make no law . abridging the freedom of speech, or of the press.” U.S. CONST. amend. I. The Free Speech and Free Press Clauses were incorporated eighty- five years ago through the Fourteenth Amendment’s Due Process Clause to apply to state and local government entities and officials. See Gitlow v. New York, 268 U.S. 652, 666 (1925). 7. Justice Scalia wrote that “[w]e decline to address the constitutional questions at this time.” Fox Television Stations, 129 S. Ct. at 1819. 8. See 5 U.S.C. § 706(2)(A) (2006) (allowing courts to “hold unlawful and set aside agency action, findings, and conclusions” that are determined to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”). 739 CALVERT &B UNKER FINAL PAGES (DO NOT DELETE) 10/22/2010 2:21 PM There are some propositions for which scant empirical evidence can be marshaled, and the harmful effect of broadcast profanity on children is one of them. One cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent broadcasts (and insulated from all other indecency), and others are shielded from all indecency. Here it suffices to know that children mimic the behavior they observe—or at least the behavior that is presented to them as normal and appropriate. Programming replete with one- word indecent expletives will tend to produce
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