Strange Priorities: Government Fights “Indecency,” But Not Shoplifting

The prosecutor in Contra Costa County, California won’t prosecute shoplifters anymore, citing budget cuts. It’s open season on retailers in that large suburban country. But rather than focusing on that, many prosecutor associations are stupidly supporting the federal hate-crimes bill, which would waste taxpayers’ money by allowing people who have been acquitted in state court to be reprosecuted in federal court.

The FCC is wasting time fining broadcasters for fleeting expletives under an indecency policy that is applied broader than the FCC’s own written regulations suggest (for example, the FCC treats buttocks as being a “sexual organ,” contrary to the definition‘s plain meaning). In a 5-to-4 decision today in FCC v. Fox Television Stations, the Supreme Court ruled that the FCC’s policy isn’t “arbitrary and capricious” in violation of the Administrative Procedure Act. It overturned a federal appeals court decision that voided massive fines imposed by the FCC against Fox. The Supreme Court refused to rule on the First Amendment issue that the federal appeals court earlier avoided, leaving that issue for it to address on remand.

The FCC’s policy may yet be struck down, since it survived only because the Supreme Court temporarily ducked the First Amendment issue: the liberal Supreme Court justices who dissented don’t like indecency regulations (at least outside the workplace), but they do like most other broadcast speech restrictions (like compulsory must-carry mandates and racial preferences in the award of broadcast licenses, upheld against an equal-protection challenge in the Supreme Court’s 5-to-4 Metro Broadcasting decision, which was overruled by the Supreme Court’s 2000 Adarand decision).

By contrast, the conservative justices dislike indecency, but also dislike the legal rationale, the scarcity doctrine, that is often cited as a basis for it being banned on the radio, since that scarcity doctrine is also the basis of the “Fairness Doctrine” that liberals want to use to shut down conservative talk radio. (The scarcity doctrine claims that speech on the air can be restricted in the name of the public interest, since broadcast spectrum is a scarce resource — never mind that there are more radio stations than newspapers, whose speech cannot be restricted under the Supreme Court’s Tornillo decision; and never mind the fact that the FCC’s own lawyers have admitted in the past that the scarcity rationale is bunk).

Conservative justice Clarence Thomas, who provided the deciding vote in favor of the FCC, only concurred in the ruling because it didn’t reach the First Amendment. He made clear in his concurring opinion that if it had, he would likely have rejected the “Red Lion” scarcity doctrine on which Supreme Court decisions restricting broadcast speech are heavily based (like its Pacifica decision, which held that indecent speech, which cannot be banned elsewhere in society, is nevertheless not protected on the broadcast airwaves). As he noted, “Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.”

When the conservative justices finally do reach the First Amendment issue, they may discard the scarcity rationale for restricting speech, and reluctantly limit the FCC’s expansive indecency ban, which would the courts would not tolerate under the First Amendment in most other contexts. (The conservative justices dislike other speech restrictions commonly defended under the scarcity rationale, but favored by liberal groups, like must-carry regulations, minority-preference mandates, and the Fairness Doctrine). By contrast, the liberal justices, who usually have little respect for precedent they disagree with (like today’s decision), will probably continue to argue that the FCC’s indecency policy is “arbitrary and capricious” in violation of the APA, and possibly the First Amendment as well.