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Conference Call summarizes the roughly 15 percent of all nonpauper petitions that are the most likely candidates for certiorari. It is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of nonpauper petitions. The firms then prepare the summaries of the cases. If either firm is involved in a case mentioned in this column, that will be disclosed.
At the Golden Globe Awards in January 2003, Bono, the lead singer of U2, strode to the podium to accept an award for best original song. “This is really, really fucking brilliant,” the singer announced to millions of viewers on NBC. “Really, really great.” The incident, which prompted complaint drives by numerous organizations, led the Federal Communications Commission to reverse its long-held stance against punishing the broadcast of merely fleeting expletives. After numerous networks successfully challenged the reversal on procedural grounds, the Supreme Court will consider at its private conference on Feb. 29 whether to accept the government’s appeal. (The petition is No. 07-582, Federal Communications Commission v. Fox Television Stations.) Under federal law, the FCC retains authority to punish the broadcast of any “obscene, indecent, or profane language” on public airwaves. In its landmark 1978 decision in FCC v. Pacifica Foundation, the Supreme Court permitted civil sanctions against a radio station that aired an afternoon broadcast of comedian George Carlin’s monologue “Filthy Words,” which contained seven expletives purportedly barred from the public airwaves. Over the ensuing decades, however, FCC practices have led broadcasters to believe they would not face sanctions for unintentionally broadcasting expletives that were “fleeting and isolated.” Indeed, the FCC’s enforcement bureau initially declined to take action against NBC after Bono’s statement at the Golden Globes. Following displeasure from numerous lawmakers, however, the full FCC reversed course, publishing an order that overruled all previous decisions that found fleeting use of expletives not indecent. Going forward, the word “fuck” would almost invariably be found indecent because it “inherently has a sexual connotation” and “invokes a coarse sexual image.” In 2006, the FCC released a subsequent report cataloging various televised indecent remarks over a four-year period, including two separate comments made at the Billboard Music Awards on Fox. (In 2002, Cher said of her critics, “Fuck �em. I still have a job and they don’t.” In 2003, presenter Nicole Richie, ad-libbing, said: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”) The FCC levied no fines against the broadcasters, but the networks charged the commission with failing to provide a sufficient reason for the shift. A 2-1 panel on the U.S. Court of Appeals for the 2nd Circuit agreed, dubbing the change “arbitrary and capricious” under the Administrative Procedure Act. Noting that nearly 30 years had passed since the Pacifica decision, the panel found the FCC had failed to provide evidence suggesting fleeting expletives could be harmful and warranted government regulation. The panel remanded the case to allow the FCC to provide an “adequate explanation” for the shift, though it noted the commission might well be unable to overcome the broadcasters’ underlying First Amendment challenge. Rather than seek rehearing, the FCC appealed directly to the Supreme Court. In its petition for certiorari, filed by Solicitor General Paul Clement, the Commission argues that the shift in policy complied with both the Pacifica decision and the APA. The FCC argues that Pacifica contemplated instances in which viewers could find even one expletive harmful. As Justice John Paul Stevens put it in his majority opinion, “To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow.” Clement further contends that the 2nd Circuit ruling departs from the deference reviewing courts typically afford agency decisions. Citing previous administrative law rulings, the government contends that agencies have an obligation to continually re-evaluate previous policy positions in response to changed circumstances. In this case, Clement maintains, the FCC possessed a “reasoned basis” in wanting to ensure that broadcasters not receive a nearly automatic pass any time an expletive is uttered in isolation. In any event, the government argues, the commission is unlikely to be able to offer any rationale that the 2nd Circuit will deem satisfactory. The petition contends that because the panel already rejected the FCC’s current approach — and because it would likely deem a flat ban on expletives unconstitutional — making the commission offer a new rationale is nothing more than a “Sisyphean errand.” Opposing certiorari, Fox — joined by CBS and ABC — argues both that the FCC’s current policy represents a marked reversal from the previous 30 years and that the 2nd Circuit did nothing more than remand the case to the agency for a fuller policy explanation. The brief in opposition, filed by Carter Phillips of Sidley Austin in Washington, further contends that Pacifica declined to even consider whether the federal indecency statute would permit a ban on the fleeting and isolated use of expletives. Phillips maintains that the FCC cannot argue on the one hand that the broadcast of even one expletive can cause irreparable harm and approve the airing of the expletive-laced movie “Saving Private Ryan” on the other. As Phillips puts it, “[t]he �first blow’ theory simply makes no sense as a justification for a policy that often permits many such �blows.’” Moreover, given the size of potential fines for indecent language, Fox argues that the FCC policy will only encourage broadcasters and affiliates “to err on the side of self-censorship.” — Ben Winograd
Other cases up for review include the following: • 07-548, Beasley v. United States (4th Circuit) Whether a court is jurisdictionally barred from enhancing a sentence if the government fails to notify a defendant “before trial,” as required under 21 U.S.C. 851(a), and whether such notice is untimely if given after jurors are selected but before they are sworn. [Disclosure: Akin Gump represents the petitioner.] • 07-635, Peters v. Village of Clifton, Ill. (7th Circuit) Whether the Court should overrule Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985) insofar as it requires property owners to seek compensation in state court to ripen a federal takings claim. • 07-721, American Telecom Co., et al. v. Republic of Lebanon (6th Circuit) Whether, under the commercial activity exception to the Foreign Sovereign Immunities Act, Lebanon created a “direct effect” in the United States by allegedly fraudulently inducing two U.S. companies to bid on a contract and then disqualifying them from consideration on grounds they were American corporations. • 07-872, CSX Transportation Inc. v. United Transportation Union (11th Circuit) Whether a plaintiff is forbidden from naming as a “John Doe” defendants individuals whose identity is not reasonably known at the time the complaint is filed. [Disclosure: Akin Gump represents the petitioner.]

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