Judicially Speaking, Cut the #$*@%!
On Tuesday, the U.S. Court of Appeals for the Second Circuit rejected the Federal Communications Commission’s strict broadcast indecency rule as unconstitutionally vague. The Los Angeles Times first reported the news here. The Second Circuit already heard the case once, Fox v. FCC, 489 F.3d 444 (2d Cir. 2007), and when its initial ruling was appealed, the Supreme Court upheld the FCC’s rule in a limited holding, FCC v. Fox, 129 S.Ct. 1800 (2009). The Court decided only that the rule was not arbitrary and capricious under the Administrative Procedure Act; it reserved judgment on the constitutional question, which the Second Circuit answered Tuesday.
Communication between judges can be different from communication between other types of public officials. Court-watchers find Supreme Court oral arguments to be important, in part, because the justices can try to influence each other or tip their hands to counsel and the public through their questioning. Judges in different courts try to communicate with and influence each other too. Most obviously and frequently, this happens when a higher court sends an appealed case back to the lower court (called “remanding”) for further proceedings in light of the instructions and guidance in the higher court’s written opinion. Intra-court communication can happen in less obvious ways too. Judge Diarmuid O’Scannlain’s concurrence in Ceballos v. Garcetti, 361 F.3d 1168, 1185 (9th Cir. 2004) is one example. In that case, dealing with the First Amendment speech rights of public employees, O’Scannlain voted in favor of the court’s opinion because it followed Ninth Circuit precedent, but he disagreed with that precedent and the accordant outcome of the case before him and wrote as much in a separate concurring opinion. This separate opinion by a noted conservative judge on a court with a liberal reputation served as a message to the justices of the Supreme Court, which trended conservative. The Supreme Court took the case and reversed the Ninth Circuit’s decision. Garcetti v. Ceballos, 547 U.S. 410 (2006). O’Scannlain’s concurrence served as a blueprint for Justice Anthony Kennedy’s majority opinion, which Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito joined, and Kennedy even mentioned O’Scannlain by name and cited his concurring opinion. See id. at 416-17.
Something similar is going on in the FCC case, the latest chapter of which the Second Circuit wrote Tuesday. When the Supreme Court passed on the case after the Second Circuit’s first ruling, Justice Thomas concurred in the majority decision that upheld the ruling. FCC v. Fox, 129 S.Ct. at 1819 (Thomas, J., concurring). In his separate opinion, Thomas explained that the majority correctly upheld the FCC’s rule as a matter of administrative law, but he expressed a willingness to strike down the rule on First Amendment grounds. As Mike Sacks reports, Tuesday’s Second Circuit opinion echoes Thomas’ concurrence. The Second Circuit reached the end Thomas prescribed, rejecting the rule on constitutional grounds, but had to use different reasoning to reach that result because Thomas’ approach required overturning Supreme Court precedent, means only available to the Supreme Court. See id. at 1819-20 (“I write separately, however, to note the questionable viability of the two precedents that support the FCC’s assertion of constitutional authority to regulate the programming at issue in this case.”) (citing Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) and FCC v. Pacifica Foundation, 438 U.S. 726 (1978)). Unlike the Garcetti example mentioned above, which featured a court of appeals judge sending a message to the Supreme Court justices, it was a Supreme Court justice signaling the court of appeals judges in Fox. As such, there may be one more audience for Thomas’ concurrence: his fellow justices. If the government appeals this most recent ruling, Thomas’ view will be before his colleagues, who, unlike the court of appeals judges, have the authority to affirm his result (striking down the rule) with his reasoning (overruling Red Lion and Pacifica and holding that the rule is unconstitutional under the First Amendment). If nothing else, a second appeal to the Supreme Court will allow Thomas to achieve a judicial communication hat trick— 1) his original concurrence; 2) sent as a message to the Second Circuit; 3) a version of which would return to the Supreme Court in the form of the appealed decision, should the government appeal the latest ruling.