April 1, 2020

Supreme Court Weighs Relevance of Decades-Old Broadcast Decency Rules

WASHINGTON — In a rollicking Supreme Court argument that was equal parts cultural criticism and First Amendment doctrine, the justices on Tuesday considered whether the government still has good reason to regulate cursing and nudity on broadcast television.

The legal bottom line was not easy to discern, though there seemed to be little sentiment for a sweeping overhaul of the current system, which subjects TV broadcasters to fines for showing vulgar programming that is constitutionally protected when presented on cable television or the Internet.

Justice Samuel A. Alito Jr. suggested that the court should not rush to resolve a question concerning a technology on its last legs.

“Broadcast TV is living on borrowed time,” he said. “It is not going to be long before it goes the way of vinyl records and eight-track tapes.”

In the meantime, though, a majority of the justices seemed content to leave in place the broad outlines of a regulatory structure built on rationales that have been undermined.

In 1978, the court said the Federal Communications Commission could restrict George Carlin’s famous “seven dirty words” monologue, which had been broadcast on the radio in the afternoon. The court relied on what it called the uniquely pervasive nature of broadcast media and its unique accessibility to children.

Neither point still holds, lawyers for Fox and ABC told the justices.

But Justice Antonin Scalia, who in other settings has been hostile to government regulation of speech, said there was value in holding the line here.

“This has a symbolic value,” he said, “just as we require a certain modicum of dress for the people that attend this court.”

“These are public airwaves,” Justice Scalia went on, adding: “I’m not sure it even has to relate to juveniles, to tell you the truth.”

Still, there was significant dissatisfaction among the justices with how the Federal Communications Commission has been using its authority.

“One cannot tell what’s indecent and what isn’t,” Justice Ruth Bader Ginsburg said, referring to the agency as “the censor.”

The commission has, for instance, said that the swearing in “Saving Private Ryan,” the Steven Spielberg war movie, was not indecent, while swearing by blues masters in a music documentary produced by Martin Scorsese was indecent.

Nudity in “Schindler’s List,” another Spielberg film, was allowed, but a few seconds of partial nudity in the television police drama “NYPD Blue” was not.

Justice Elena Kagan offered a summary. “The way that this policy seems to work,” she said, “it’s like nobody can use dirty words or nudity except for Steven Spielberg.”

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Supreme Court Hears Arguments on Telemarketer Abuse Cases

The justices had spent most of the previous hour trying to puzzle out the meaning of a part of 1991 federal law that addresses telemarketing abuses, and they had reached consensus on only one point.

“Both sides agree it’s odd, and all nine justices agree it’s odd,” Justice Elena Kagan said. “I mean, I think we can say that this statute is odd. And the question is, where do we go from there?”

The law, the Telephone Consumer Protection Act, prohibits many uses of automatic dialing equipment, recorded messages, unsolicited faxes and similar practices, and it allows those who receive such communications to sue for at least $500 per violation. The amount may be tripled if the caller is found to have knowingly broken the law.

The plaintiff in Monday’s case, Marcus D. Mims, sued after receiving automated debt-collection calls on his cellphone.

The question in his case, Mims v. Arrow Financial Services, No. 10-1195, was the proper place for recipients of unlawful communications to file their suits. The law says that affected people “may, if otherwise permitted by the laws or rules of a state” sue “in an appropriate court of that state.”

But may they also sue in federal court? The law is silent on that point, though the general rule is that federal courts have jurisdiction to hear claims arising from federal laws.

Justice Kagan said the general rule should apply unless Congress made it quite clear that the general rule should not. “If it’s odd and we can’t figure it out,” she said, “the default position seems to be federal courts have jurisdiction over federal questions.”

Justice Antonin Scalia said there were institutional reasons for that presumption.

“We are jealous of our jurisdiction,” he said of federal judges, adding: “That’s what gets our hackles up, when you are telling us we have been ousted of jurisdiction.”

But Justice Stephen G. Breyer said he could think of a good reason to limit suits under the law to state courts. “Congress seemed to want to have ordinary people to be able to go into small claims court in a state and bring an action for $500 because they were pestered by these salesmen on the phone in violation of the act,” he said.

If defendants were allowed to move such suits to federal court, Justice Breyer continued, a simple case could easily turn into a complicated and expensive one.

Scott L. Nelson, a lawyer for Mr. Mims, said that situation was unlikely.

Justice Anthony M. Kennedy was not persuaded. “That’s exactly what’s going to happen,” he said.

Justice Sonia Sotomayor, on the other hand, said it would have been illogical for Congress to allow consumers to sue only in state court. Most states had laws against the practices addressed by the federal law by the time it was enacted, and the federal law applies only if it is permitted by state law.

“What is the logic of your position?” Justice Sotomayor asked Gregory G. Garre, who represented the defendant. “Why even bother passing a federal law if it was going to give states the option to protect against this kind of conduct alone?”

Mr. Garre said the law also contemplated possible lawsuits from state attorneys general. Those lawsuits from state officials, the law says, in further testament to its oddness, may only be brought in federal court.

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Justices Reject Ban on Violent Video Games for Children

In a second decision Monday, the last day of the term, the court also struck down a campaign finance law as a violation of the First Amendment.

Justice Antonin Scalia., writing for five justices in the majority in the video games decision, Brown v. Entertainment Merchants Association, No. 08-1448, said video games were protected by the First Amendment.

“Like the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world),” Justice Scalia wrote. “That suffices to confer First Amendment protection.”

Depictions of violence, Justice Scalia added, have never been subject to government regulation. “Grimm’s Fairy Tales, for example, are grim indeed,” he wrote, recounting the gory plots of Snow White, Cinderella and Hansel and Gretel. High school reading lists and Saturday morning cartoons, too, he said, are riddled with violence.

The California law would have imposed $1,000 fines on stores that sold violent video games to people under 18. It defined violent games as those “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being” in a way that was “patently offensive,” appeals to minors’ “deviant or morbid interests” and lacked “serious literary, artistic, political or scientific value.”

The definitions tracked language from decisions upholding laws regulating sexual content. In 1968, in Ginsberg v. New York, the court allowed limits on the distribution to minors of sexual materials like what it called “girlie magazines” that fell well short of obscenity, which is unprotected by the First Amendment.

The video game industry, with annual sales of more than $10 billion, welcomed Monday’s ruling. The industry had viewed the court’s decision to hear the case as worrisome given that the lower courts had been in agreement that laws regulating violent expression were unconstitutional.

The justices had, moreover, agreed to hear the case just after issuing their 8-to-1 decision last year in United States v. Stevens, striking down a federal law making it a crime to buy and sell depictions of animal cruelty like dog fighting videos. That also suggested that at least some of the justices had viewed California’s law as problematic.

But on Monday, the majority said the Stevens decision required the court to strike down the California law, rejecting the argument that its goal of protecting children from seeing violence altered the constitutional analysis.

“No doubt a state possesses legitimate power to protect children from harm,” he wrote, “but that does not include a free-floating power to restrict the ideas to which children may be exposed.”

Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined the majority opinion.

Justice Samuel A. Alito Jr., in a concurrence joined by Chief Justice John G. Roberts Jr., voted with the majority but did not adopt its reasoning. Justice Alito said the California law was too vague. A more carefully crafted law, he wrote, might survive constitutional scrutiny.

Justice Alito said the majority opinion was too quick to dismiss differences between current video games and other media. “The objective of one game is to rape a mother and her daughters,” he wrote. In another “players attempt to fire a rifle shot through the head of President Kennedy as his motorcade passes by the Texas School Depository.”

Soon, he added, children may play three-dimensional high-definition games wearing special equipment that will allow them to “actually fell the splatting blood from a blown-off head.”

Justice Scalia acknowledged that Justice Alito had identified some disturbing images. “But disgust,” Justice Scalia wrote, “is not a valid basis for restricting expression.”

Justices Clarence Thomas and Stephen G. Breyer filed separate dissents. Justice Thomas said the drafters of the First Amendment did not understand it to protect minors’ free speech rights.

“ ‘The freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians,” Justice Thomas wrote.

Justice Scalia, who shares with Justice Thomas a commitment to interpreting the Constitution in accord with its original meaning, parted ways with his usual ally on this point. “He cites no case, state or federal, supporting this view, and to our knowledge there is none,” Justice Scalia wrote of Justice Thomas.

Justice Breyer also dissented, saying the statute survived First Amendment scrutiny. He relied on studies that he said showed violent video games were positively associated with aggressive behavior.

“Unlike the majority,” Justice Breyer wrote, “I would find sufficient grounds in these studies and expert opinions for this court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children. “

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Justices Hear Arguments in Generic-Drug Lawsuit

On Wednesday, the justices heard arguments in a follow-up case that presented an interesting wrinkle: May the makers of generic drugs, whose products must use the same warning labels as the corresponding brand-name drugs and who cannot alter those labels, also be sued for failing to warn users about the risks posed by their products?

The answer to the question will have enormous financial consequences, said Jay P. Lefkowitz, a lawyer for the drug companies. “This would totally change the way generics do business,” he said of a ruling against his clients.

The three consolidated cases the court heard on Wednesday, including Pliva Inc. v. Mensing, No. 09-993, were brought by women who took the generic equivalent of Reglan for stomach ailments and developed a serious neurological disorder. Appeals courts ruled against the drug makers, saying that the federal regulatory regime did not block claims under state law.

Mr. Lefkowitz said the rulings put his clients in an impossible position.

“Generics can’t simultaneously comply with a federal duty to be the same and a state duty to be different,” he said.

He said the makers of generic drugs are in a fundamentally different business from the companies that created the original medications.

“Brand companies do safety and efficacy testing; generics do sameness testing,” Mr. Lefkowitz said. “Generics are required to make copies of the drugs and by definition make copies of the labels, because it wouldn’t make any sense to go into a drugstore to buy Advil and to see 15 different generic ibuprofen and to have 15 different sets of warnings.”

Justice Antonin Scalia echoed that point, likening the makers of generic drugs to “this guy who graduated from high school.”

“He doesn’t know anything about science,” Justice Scalia said. “He knows how to replicate this pill exactly. That’s all he really knows.”

But a lawyer for the plaintiffs, Louis M. Bograd, said that it would be odd to hold the two kinds of companies to different standards.

“The position that the generics are proposing here is one in which they would be immune from liability for selling a product with inadequate warnings,” he said, “even though the name-brand company selling the same drug with the same warnings would be liable.”

Mr. Bograd added that 70 percent of prescriptions were filled with generic drugs and that a third of generic drugs had no brand-name competitors.

“If generics are not responsible,” he said, “in many of these cases no one is responsible.”

Several justices said makers of generic drugs could take steps short of changing their labels, including urging the F.D.A to take action.

“You could propose a revision of the label, and if you did that, then you would be home free,” Justice Ruth Bader Ginsburg told Mr. Lefkowitz. “You would not be subject to the state suit.”

But Justice Samuel A. Alito Jr. seemed skeptical of lawsuits based on what he called “a duty to lobby the F.D.A.”

Justice Sonia Sotomayor said she doubted that Congress had intended a two-track system.

“Do you think Congress really intended to create a market in which consumers can only sue brand-named products?” she asked Mr. Lefkowitz. “Because if that’s the case, why would anybody ever take” a generic medicine?

Later in the arguments, Justice Alito proposed an answer to that question.

“I don’t know whether this is a good idea or not,” he said of allowing state suits, “but it does seem to me that it may significantly increase the costs for generic drug manufacturers, and therefore counteract one of the objectives of the statute, which was to provide generic drugs at a low cost.”

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