When a highly charged issue divides the Supreme Court, we expect to see Justice Ruth Bader Ginsburg approvingly cite Justice Clarence Thomas about as often as we expect to witness the proverbial flying pig.
That pig isn’t in the air yet, but it is barreling down the runway. And therein lies a curlicue of a legal tale.
Thomas is probably the most conservative member of the court’s five-member conservative bloc, while Ginsburg is the dean of the four-justice liberal faction. Their judicial philosophies seem to have almost no overlap, beyond English as a common language.
Under Chief Justice John Roberts, Thomas and his fellow conservatives are carving a niche as the most vigorous defenders of free-speech rights in decades, maybe ever. The keystone in this legacy is their 2010 holding in Citizens United that corporations and labor unions are entitled to spend their own money, without limits, on political advertising.
But Citizens United is far from the only instance in which the court’s dominant right wing has taken a hard line. Just last week, the court decided in Knox v. Service Employees International Union that a public sector union cannot collect funds for political activities from non-members (a practice allowed under “agency shop” rules in states without right-to-work laws) unless those employees explicitly agree to contribute to the cause. This week, the court summarily overturned a Montana Supreme Court decision in which the state refused to follow Citizens United because of its own history of undue corporate influence over elections.
The conservatives’ reasoning boils down to this: The First Amendment protects all speech, including speech by corporations. Government therefore cannot restrict such speech without a compelling reason for doing so. At the same time, individuals have a right to refrain from participating in political speech with which they do not agree, which is why public employee unions now must obtain prior approval before forcing non-members to share the cost of political activity.
Ginsburg and the other liberals detest Citizens United. Even though they acknowledged that the Montana courts have no right or power to ignore the decision, and though they recognized that the Supreme Court is not about to reverse a major constitutional holding that is less than three years old, all four of the liberal justices voted against the summary reversal of the Montana case. In effect, they were arguing that the Supreme Court should revisit Citizens United, even though doing so would be pointless while all five members of that decision’s majority remain on the bench.
Yet while the conservatives have become the paragons of First Amendment virtue when it comes to political speech, they have a problem with more everyday speech - to be specific, the sort of speech that sometimes involves “dirty” words. And while the liberals seem to think there is something intrinsically dirty about corporate money entering the marketplace of ideas, they - or at least Ginsburg - may have much less of a problem with the sort of speech that broadcasters are expected to mask with sound effects.
This brings us to the Ginsburg-Thomas connection, which emerged in another case last week.
In a unanimous decision announced last Thursday, the Supreme Court ruled that the Federal Communications Commission cannot fine Fox and ABC for airing brief profanity and nudity in incidents a decade ago. The fines were not thrown out because the FCC’s standards of decency are arbitrary; nor were they discarded because the FCC is out of step with prevailing cultural norms; nor were they tossed on grounds that the First Amendment protects even speech that is coarse and vulgar.
Instead, the court found that the FCC had not given the networks fair notice of a change in its position on fleeting instances of profanity (in Fox’s case) or on brief nudity (in ABC’s case). Because the FCC’s position changed subsequent to the incidents that triggered the citations and, in ABC’s case, a substantial fine, the matter related to due process rather than the First Amendment. In the Supreme Court’s majority opinion, Justice Kennedy wrote, “The Court adheres to its normal practice of declining to decide cases not before it.”
That was a strange result. The Fox case first reached the high court in 2009, when the lower courts ruled that the commission acted arbitrarily and capriciously in changing its indecency policy. The high court reversed and sent the case back to the Second U.S. Circuit Court of Appeals to determine whether the rules passed constitutional muster.
The Second Circuit ruled against the FCC, finding the indecency standards unconstitutionally vague. The case went back to the Supreme Court, which now has ducked the very question that it asked the Second Circuit to answer. By overturning the fines without ruling on the FCC’s powers to regulate broadcast speech, the court has ensured that the issue will come back again.
Ginsburg agreed that the fines should be overturned, but argued in a concurring opinion that the court should have gone farther and reviewed the First Amendment principles involved as well. “Time, technological advances, and the Commission’s untenable rulings in the cases now before the Court show why [FCC v.] Pacifica bears reconsideration.” FCC v. Pacifica was the 1978 ruling upholding the FCC’s decision that George Carlin’s comedic “Filthy Words” monologue was indecent.
Ginsburg pointed to a concurring opinion that Thomas penned in 2009, in which he, too, cast doubt on Pacifica’s constitutional legitimacy. Three years ago, Thomas challenged the “questionable viability” of the prior cases upholding the FCC’s indecency rules. This time, however, Thomas and the rest of the court avoided the question.
As I discussed this winter when Mathangi Arulpragasam - better known by her stage name, M.I.A. - caused an uproar with an obscene gesture during the Super Bowl halftime show, the FCC’s standards are hopelessly confusing and inconsistent. Perhaps more importantly, they are hopelessly out of line with modern American standards of decency. The idea that even one instance of an expletive could have “enlarged a child’s vocabulary in an instant” seems naive when such words filter in through the world around them regularly.
So here is a scorecard: The Supreme Court conservatives have declared that the constitution protects corporate speech, but they are mum on dirty speech. The Supreme Court liberals are fine with restricting corporate ads to which they object, but may not have a problem with words to which a kindergarten teacher would object. The FCC is free to keep trying to regulate bad words on the air, which it may or may not really have the power to do - a question the Supreme Court may or may not decide to answer in the future.
And because Thomas may have the most fundamentalist view of the First Amendment and Ginsburg the most progressive when it comes to Carlin’s “filthy words,” they may agree with one another, sooner than with their usual sympathizers, that the late comedian’s monologue is finally be entitled to some airtime.
It’s a twisted story, but it goes to show that with enough wind behind it, even a pig can get off the ground.