With decisions ranging from broadcast indecency to union fees and corporate fines, the U.S. Supreme Court on Thursday cleared the way for the term’s biggest and likely most controversial rulings to come next week.

The justices issued four opinions, including a narrow ruling in the long-awaited challenge to the indecency regulations of the Federal Communications Commission: FCC v. Fox, which was argued more than five months ago. After Thursday’s rulings, five cases remain (counting healthcare and life without parole for juvenile murders as one each). The Court will return on Monday and may schedule an additional decision day that week.

In the world of appellate practice, Thursday was a big day for Sidley Austin’s co-chair and veteran advocate Carter Phillips, who won two cases – following on the heels of a win on Monday in an Indian contracts case. Phillips has argued 76 times before the high court, more than any lawyer currently in private practice. “I don’t think I have ever won three in a week before but it feels very good,” Phillips said Thursday afternoon.

There was little drama from the bench on Thursday, with only one justice reading portions of his dissent — a sign of significant disagreement with a majority opinion. And the rulings themselves provoked only moderate divisiveness, unusual for this time of year. Two crack-cocaine sentencing challenges produced the only 5-4 split of the day.

The FCC decision marks the second – and probably not the last – time the Court has scrutinized the commission’s broadcast indecency regulations. After finding in 2009 that the regulations were not arbitrary or capricious, the Court sent the case back to lower courts to determine their constitutionality under the First Amendment. The U.S. Court of Appeals found the rules unconstitutional, and the FCC brought the case back to the Supreme Court this term.

But on Thursday the justices again sidestepped the First Amendment issue, determining instead the networks were not given adequate notice that fleeting use of expletives and brief nudity on the air would amount to a violation. Because the decision was based on Fifth Amendment due process considerations, Justice Anthony Kennedy wrote, the Court “need not address the First Amendment implications” of the policy. The Court also declined to use the case to re-examine the Court’s longstanding rationale for giving broadcasters less First Amendment protection than newspapers and other media.

“Although today’s decision is a narrow one, the indecency regime is now on life support,” said American Civil Liberties Union legal director Steven Shapiro. Media lawyer Andrew Schwartzman applauded the Court for faulting the FCC for its lack of clarity, but added that it is “unfortunate that the justices ducked the core First Amendment issues. The resulting uncertainty will continue to chill artistic expression.”

But supporters of the indecency rules were also pleased, because the Court had not rejected outright a role for the FCC in regulating indecency. “Once again the Supreme Court has ruled against the networks in their years-long campaign to obliterate broadcast decency standards,” said Tim Winter of the Parents Television Council.

For his part Phillips, who argued for the networks in the case, counts the 8-0 decision as a solid win for broadcasters, because the justices told the FCC it had “violated the Fifth Amendment, and maybe the First.” Philips added, “There is no way to read that as a win for the FCC. The most you can do is say it is not Little Big Horn for them.” Justice Sonia Sotomayor, who was a judge on the Second Circuit when the case was before it, recused.


In the sentencing area, a 6-3 decision in Southern Union Co. v. U.S. handed victory to that company which had been convicted by a jury of violating the federal Resource Conservation and Recovery Act for knowingly storing liquid mercury without a permit at one of its facilities in 2004. The law imposes a maximum fine of $50,000 for each day of the violation.

A federal judge set the maximum potential fine of $38.1 million from which the jury imposed a fine of $6 million and a community service obligation of $12 million. Southern Union argued that the jury found only one day of violation and imposing any greater fine than $50,000 would require fact-finding by the court in violation of Apprendi v. New Jersey (2000). The Apprendi decision held that the Sixth Amendment requires juries, not judges, to determine any fact, other than the fact of a prior conviction, which increases the maximum potential sentence.

Justice Sonia Sotomayor rejected the United States’ argument that Apprendi does not apply to sentences of criminal fines. She found “ample historical evidence” showing that juries routinely found facts that set the maximum amounts of fines.

Apprendi‘s ‘core concern’ is to reserve to the jury ‘the determination of facts that warrant punishment for a specific statutory offense,’” she wrote. “That concern applies whether the sentence is a criminal fine or imprisonment or death.”

Justice Stephen Breyer, joined by justices Anthony Kennedy and Samuel Alito, dissented, saying that when a criminal fine is at issue, the Sixth Amendment permits the judge to determine sentencing facts, “facts that are not elements of the crime but are relevant only to the amount of the fine.”

Sidley’s Phillips said, “The decision obviously is important to corporations charged with criminal offenses because they can only be punished by fines. And what will be even more significant is that the federal prosecutors will have to prove to the jury all of the facts necessary to justify the magnitude of a particular fine.”

Thursday’s Southern Union decision shows Apprendi still has legs more than a decade after the case was decided, noted sentencing scholar Douglas Berman of Ohio State University Moritz College of Law. “Six justices in pretty strong language concluded this is a no brainer that Apprendi applies to fines. To me, the next huge question is whether it applies to judicial fact-finding to support restitution awards.”


In the second sentencing ruling of the day, the justices split 5-4 in holding that the Fair Sentencing Act of 2010, which lowered the mandatory minimum sentences for many crack offenders, applies to those who were convicted before the act took effect but were sentenced after the effective date.

Although Congress did not expressly state that the new law was retroactive, Breyer, writing for the majority in Dorsey v. U.S. and Hill v. U.S., said, there was a “clear indication” that was the intent. “We rest our conclusion primarily upon the fact that a contrary determination would seriously undermine basic Federal Sentencing Guidelines objectives such as uniformity and proportionality in sentencing,” he wrote, listing six considerations leading to the decision.

Justice Antonin Scalia led the dissenters — Chief Justice John Roberts Jr. and justices Clarence Thomas and Alito. He said there was not a clear enough implication that Congress intended the law to apply to these offenders in order to overcome the strong presumption against retroactive application of a more lenient statute.

“My sense of this is a line does have to be drawn some place as to what is clear enough indication of Congress’ intent,” said Mark Harris of Proskauer Rose, co-counsel to Corey Hill. “All indications were wherever the line falls, we were well within what Congress intended. There was never a good answer as to why Congress would not want this retroactive.”

The fourth ruling of the day was Knox v. Service Employees International Union, the latest in a series of First Amendment decisions involving public sector unions and their treatment of non-members. At issue was a special assessment levied by the SEIU on California non-members to fund political activities that a class of non-members disapproved.

In a 7-2 ruling written by Justice Samuel Alito Jr., the Court said the assessment violated the non-members’ First Amendment rights. Both the unions and non-members have “the same rights” under the First Amendment to express their views without government interference, Alito wrote. As a result, when a union bills non-members for a special assessment or an increase in dues, it “may not exact any funds from non-members without their affirmative consent.”

Joined by Justice Elena Kagan, Breyer dissented, asserting that the majority had upset long-established and constitutional procedures for no good reason. Breyer, who summarized his dissent from the bench, was critical of the majority’s endorsement of mandatory “opt-in” procedures that require non-members to affirmatively say they approve of the assessments, rather than “opt-out” procedures that are more favorable to unions.

Union critics applauded the Knox decision. Deborah La Fetra of the Pacific Legal Foundation said it was “a major victory for workers who do not want to subsidize union bosses’ political agendas.” She added, “Unions should ask permission first — not compel workers to pay to promote the unions’ political views.”

Tony Mauro can be contacted at tmauro@alm.com. Marcia Coyle can be contacted at mcoyle@alm.com.