When to Go Big on the First Amendment: Comparing FCC v. Fox and Citizens United

Today the Supreme Court decided FCC v. FOX, holding that due process concerns over the vagueness of the FCC’s indecency rules required reversing some fines for brief nudity and expletives against broadcasters.

The Court could have gone bigger and reached a major First Amendment question, even considering whether “this Court’s ruling in Pacifica (and the less rigorous standard of scrutiny it provided for the regulation of broadcasters, see 438 U. S. 726) should be overruled because
the rationale of that case has been overtaken by technological change and the wide availability of multiple other choices for listeners and viewers.”

But the Court did not choose to address the First Amendment issue.  Why not? “Given this disposition [of the case on due process vagueness grounds , it is unnecessary for the Court to address the constitutionality of the current indecency policy as expressed in the Golden Globes Order and subsequent adjudications. The Court adheres to its normal practice of declining to decide cases not before it. See, e.g., Sweatt v. Painter, 339 U. S. 629, 631 (1950) (‘Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court’).”

That’s decidedly NOT the course that the Supreme Court took in Citizens United.  As I explain in nauseating detail in Constitutional Avoidance and Anti-Avoidance by the Roberts Court (Supreme Court Review), in Citizens United at the end of the Court’s term the Court announced it would not be deciding the case by the Court’s summer break as scheduled. Instead, the Court set the case for reargument in September, expressly asking the parties to brief the question whether the Court should overturn two of its precedents upholding the constitutionality of corporate spending limits in candidate elections. The constitutional issue had been abandoned by the law’s challengers in the Court below and was not even mentioned in the challengers’ jurisdictional statement. Moreover, the constitutional question could easily have been avoided through a plausible interpretation of the applicable campaign finance statute. Thus, in Citizens United, the Court gave itself an opportunity to apply a little-noticed principle of anti-avoidance: the Court will eschew a plausible statutory interpretation in order decide a thorny constitutional question.

And we know how it turned out: the Court reached out and decided the constitutional question. (See my Citizens United and the Illusion of Coherence, Michigan Law Review, for a detailed analysis of the opinion.)

What explains the differing treatment?  Eugene Volokh speculates, quite plausibly, that the Court was divided 4-4 on the First Amendment question (J. Sotomayor recused herself) and may have wanted to avoid issuing an opinion which would not have accomplished anything.  But I think there’s also something else going on here.  The Court’s views of the First Amendment are not uniformly in favor of broad free speech rights, as Erwin Chemerinsky and Monica Youn have well documented and empirical studies confirmed.  Think of Justice Alito, who is one of the strongest opponents of campaign finance regulation on the Court but who supports government limitations on crush videos and funeral protests.

When it comes to campaign finance, the five Justice majority is an activist Court, which is not only deciding against most campaign regulation (aside from disclosure).  It is a Court which is reaching out and deciding such cases broadly and against regulation.

For this reason, it baffles me to see the hard push to get the Court to grant cert. in the Montana case which is a Citizens United sequel.  Things can and will get worse in the Supreme Court.  If you support reasonable campaign finance regulation (aside from disclosure), the Supreme Court is the last place you want to be.


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