In another blog post I discussed how Public Knowledge and several other groups filed a brief with the Supreme Court, asking it to overturn the FCC’s indecency regulations. The case before the Court, FCC v. Fox, has had an interesting procedural history. It presents an opportunity to reflect on how lawyers can see the world differently than normal people. Basically, the FCC won a previous challenge to its indecency rules, and it’s a good thing it did, even though those rules are an unconstitutional farce.
In short, the Supreme Court has already upheld the FCC’s rules on procedural grounds. At the time it was widely reported that the Court “upheld” the FCC’s indecency regulations. But that’s not quite accurate–the Court merely upheld the procedure the FCC used to adopt them. It didn’t decide whether or not those rules were constitutional. Harold wrote about this stage of the case in 2009–it’s a very important decision for FCC authority to regulate broadband, because it (along with the Brand X case) establish that the FCC could, if it chose to, establish its authority over broadband more firmly by regulating it as “telecommunications.”
It’s a very good thing that the FCC won the previous challenge. Agencies get deference from courts. They’re free to adopt policies, good or bad, in their areas of expertise, and courts won’t second-guess them. Courts do overturn agencies all the time, of course–but usually on the grounds that the agency has acted outside of the bounds set for it by Congress, or on the grounds that the agency has acted “arbitrarily.” That’s what Fox claimed the last time it was in front of the Court: That the FCC had acted arbitrarily when it changed its policies to ban fleeting expletives, when before it allowed them.
To avoid being overturned for acting arbitrarily, an agency has to account for all of the facts in its evidentiary record, and provide a good reason (not the world’s best or most convincing reason, just a good one) for why it did what it did. When an agency changes its mind, of course, it needs to account for all of the facts that had previously led it to decide otherwise, and account for them. It should also account for the fact that it is changing its mind.
Some parties, like Fox, have tried to blow this out of proportion, claiming that when an agency changes its mind, it needs to meet some higher burden of proof, which goes beyond merely accounting for all the facts. Under this view, the agency’s explanation for a policy change needs to be better and more convincing than its explanation for the initial adoption of a policy. This would be bad–agencies need to be able to change course when they make mistakes, and some policy matters are close calls. If an agency is afraid of being questioned on its judgment by a court, it might just keep old policies in place. Handcuffing an agency might seem like a good idea when you want to keep it from shifting away from a policy that you like, but doing so necessarily also locks it into bad policies, too. So, while the FCC was certainly behaving stupidly when it adopted its policy against fleeting expletives, it was not behaving “arbitrarily.”
In the past case, the lower court hinted that it found the FCC’s policy unconstitutional, but decided the case on “arbitrariness” grounds instead. This smacks of ducking the question, and by adopting the “greater burden of proof to change your mind” standard, it set a bad precedent. The FCC appealed that decision to the Supreme Court. The Supreme Court is the Supreme Court, and if it wanted to, it could have simply invalidated the FCC’s rules on constitutional grounds there and then. But if it had done that, the lower court’s faulty reasoning about administrative law would have stayed in place. (Even if the Supreme Court expressly disagreed with the lower court, findings by the Court that do not directly affect the outcome of a case are called “dicta” and are not binding.) By acting the way it did, the Court made it so that this time around, the administrative law issues are settled and the case has to be decided one way or the other solely on the basis of whether the regulations are constitutional. The briefs and argument before the Court can focus on this issue instead of on the burden of evidence an agency faces when it adopts a regulation.
Free expression is, of course, more important than administrative law, and I hope that the Supreme Court overturns the FCC this time. Even so, it’s still a good thing that 2009’s version of FCC v. Fox turned out the way it did. Sometimes it takes a while to do things right.