For Carter Phillips, the Supreme Court's decision in FCC v. Fox was his third win of the week. The Sidley Austin partner, who represented Fox, was one of two attorney hired guns that argued the case back in January. Following the oral arguments, Phillips told Adweek the Court was unlikely to throw out the FCC's rules completely and more likely to deliver a narrow decision. He was right. We asked Phillips how he interpreted the Supreme Court's decision that found the FCC's rules were too vague because they failed to give broadcasters fair notice of what can air on TV.
Adweek: Were you satisfied with the Supreme Court's decision even though it didn't address the First Amendment issue?
Carter Phillips: Sure. The whole idea that you basically wipe out all the investigations and complaints that have been lodged at the broadcasters and force a fresh path at the Federal Communications Commission is a step in the right direction. I hope eventually the Court will reconsider its 1970s rulings that were adopted when broadcast TV was very different. I hope they will be interested and more inclined to hear those issues.
So you consider this a win.
It's a huge win. Because not only does it say that everything the Federal Communications Commission did was a violation of the Fifth Amendment and absolves my client [Fox] of these particular charges, but the theory undercuts all charges. So until the FCC comes up with a rule going forward, it won't satisfy the notice requirement of Fifth Amendment.
What will the FCC have to do to make its rule about fleeting content consistent with the court's decision?
They are going to have to announce what it is and how they are going to apply it. Their [former] heavy reliance on context isn't going to get them there. There is no way anyone can do anything now other than guess.
What happens to the FCC's backlog of 1.5 million broadcast indecency complaints?
I think all of those are wiped out. They all come out in the context of what is permissible to satisfy the Fifth Amendment. That's not easy. When you regulate the content of speech, the Fifth Amendment is heightened.
What are the chances that eventually the Court takes up the question of whether or not the FCC broadcast indecency authority violates the First Amendment?
I think eventually the court will hold that the idea of bureaucrats serving as censors is flatly inconsistent with the First Amendment.
So in other words, we're still going to see a lot of broadcast indecency issues in court.
From a purely lawyer's perspective, the court did us a favor. We'll continue to have these issues hanging around a while.
Why was the decision so narrow and why did it take so long?
Some day there will be an interesting story about this, about the draft opinions that were circulated and what happened to them. There is no way the court decided this decision in January. It's clearly a compromise. I think the court thought it was better to move the ball forward some rather than sending a decision out under a highly splintered court.
You've argued 76 cases in front of the Supreme Court. How does this one rate?
This is at or near the top because the issue is fun. I got to argue it four times, twice in the Second Circuit and twice before the Supreme Court. First Amendment issues are substantially more interesting than lots of questions you can argue. So in some ways, this one was more satisfying because this has been hanging over my client's head for some time. Fox can go forward from here.