1. Robert Corn-Revere First Amendment Lawyers Association San Diego, CA February 2012 WashingtonUpdate

2. Another Malfunction? Rapper M.I.A. flips out at the 2012 Super Bowl halftime show.

3. CBS Corporation v. FCC (3d Cir. 2008) FCC violates APA by ignoring well-established “fleeting material” policy; FCC violates APA by ignoring well-established “fleeting material” policy; Contrary to FCC’s claims, it has never treated images differently from words; Contrary to FCC’s claims, it has never treated images differently from words; FCC cannot impose liability without fault. FCC cannot impose liability without fault.

4. Judge Rendell Steps Up “While we can understand the Supreme Court’s desire that we re-examine our holdings in light of its opinion in Fox... we conclude that, if anything, Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the Commission acted arbitrarily in this case.” Judge Marjorie Rendell CBS Corporation v. FCC (3d Cir. 2011)

5. Chief Judge Scirica dissents “I believe the Supreme Court’s intervening opinion in FCC v. Fox Television Stations, Inc.... undermines the basis of our prior holding on the Administrative Procedure Act.”

6. FCC v. Fox Television Stations and ABC, Inc. Argued Jan. 10, 2012

7. Billboard Music Awards Cher: “Fuck ‘em” Nicole: “Cow shit out of a Prada purse...”

8. NYPD Blue Fine FCC fined 52 ABC owned and/or affiliated stations $27,500 each for an episode of NYPD Blue. Total: $1.21 million. FCC fined 52 ABC owned and/or affiliated stations $27,500 each for an episode of NYPD Blue. Total: $1.21 million. “While ABC may not have received many complaints about the program, the Commission received numerous complaints... from members of various citizen advocacy groups.” “While ABC may not have received many complaints about the program, the Commission received numerous complaints... from members of various citizen advocacy groups.”

9. FCC v. Fox I: FCC Upheld 5-4 Justice Scalia wrote the opinion, joined by Chief Justice Roberts and Justices Alito, Thomas and Kennedy. Justice Scalia wrote the opinion, joined by Chief Justice Roberts and Justices Alito, Thomas and Kennedy. Justices Thomas and Kennedy wrote separate concurring opinions. Justices Thomas and Kennedy wrote separate concurring opinions. Justice Breyer dissented, joined by Justices Stevens, Ginsburg, and Souter. Justice Breyer dissented, joined by Justices Stevens, Ginsburg, and Souter. Justices Ginsburg and Stevens each wrote separate brief dissents as well. Justices Ginsburg and Stevens each wrote separate brief dissents as well. Saluting the “Hollywood glitteratae”

10. A New Theory of Regulation? “The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children.”

11. Not so fast... “Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.” “Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.” “[D]ramatic technological advances have eviscerated the factual assumptions underlying those decisions.” “[D]ramatic technological advances have eviscerated the factual assumptions underlying those decisions.” “I am open to reconsideration of Red Lion and Pacifica in the proper case.” “I am open to reconsideration of Red Lion and Pacifica in the proper case.” Justice Thomas, concurring

12. Withholding Judgment on the First Amendment “[W]e must reserve judgment on the question whether the agency’s action is consistent with the guarantees of the Constitution.” Justice Kennedy, concurring.

13. Foreshadowing? “[T]he FCC works in the shadow of the First Amendment....” “[T]he FCC works in the shadow of the First Amendment....” The FCC... repeatedly made clear that it based its “fleeting expletive” policy upon the need to avoid treading too close to the constitutional line. The FCC... repeatedly made clear that it based its “fleeting expletive” policy upon the need to avoid treading too close to the constitutional line. Justice Breyer, dissenting

14. A popular metaphor... “I write separately only to note that there is no way to hide the long shadow the First Amendment casts over what the Commission has done.” “I write separately only to note that there is no way to hide the long shadow the First Amendment casts over what the Commission has done.” “The Pacifica decision, however it might fare on reassessment,... was tightly cabined, and for good reason.” “The Pacifica decision, however it might fare on reassessment,... was tightly cabined, and for good reason.” Justice Ginsburg, dissenting

15. Pacifica’s author explains its meaning “Pacifica was not so sweeping, and the Commission’s changed view of its statutory mandate certainly would have been rejected if presented to the Court at the time.” “Pacifica was not so sweeping, and the Commission’s changed view of its statutory mandate certainly would have been rejected if presented to the Court at the time.” Changes in technology “certainly counsel a restrained approach to indecency regulation, not the wildly expansive path the FCC has chosen.” Changes in technology “certainly counsel a restrained approach to indecency regulation, not the wildly expansive path the FCC has chosen.” Justice Stevens, dissenting

16. Fox Television Stations, Inc. v. FCC (2d Cir. 2010) “[T]he FCC’s policy... is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.” Cher: “Fuck ‘em”

17. ABC, Inc. v. FCC (2d Cir. 2011) “[T]here is no significant distinction between this case and Fox.... Although this case involves scripted nudity, the case turns on an application of the same context-based indecency test that Fox found ‘impermis- sibly vague.’”

18. Question on Round Two Whether the Federal Communications Commission’s current indecency- enforcement regime violates the First or Fifth Amendment to the United States Constitution.

19. Where are they when you need them? “The Commission’s changed view of its statutory mandate certainly would have been rejected if presented to the Court at the time.” Joined Breyer’s dissent: “the FCC works in the shadow of the First Amendment...” Recused!

20. Justice Ginsburg has a question: “If they did an excerpt from ‘Hair,’ could they televise that? In the opera ‘The Makropulos Affair’ there’s a scene where a woman is seen nude entering a bathtub. Suppose that were shown?”

21. A gift for understatement... “We would concede that there is not perfect clarity in this rule.” Solicitor General Don Verrilli

22. Justice Kagan Gets it “It’s like nobody can use dirty words or nudity except for Steven Spielberg.... And so it’s a serious First Amendment issue.” Justice Elena Kagan

23. Justice Kennedy’s good question Why is there a different standard for broadcast television “when there are so many other options and – when it’s not apparent to many viewers which of the two they’re watching?” Justice Anthony Kennedy

24. Justice Kennedy’s good question Is it “just because it’s an important symbol for our society that we aspire to a culture that’s not vulgar in a very small segment?” Justice Anthony Kennedy

25. Justice Antonin Scalia “Sign me up as supporting [the] notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court...”

26. Justice Breyer’s Concern “Does this case in front of us really call for the earthshaking decision that you all have argued for in the briefs?” Justice Stephen Breyer

27. Justice Sam Alito “Broadcast TV is living on borrowed time. It is not long before it goes the way of vinyl records and 8-track tapes.... Why not let this die a natural death?”

28. What if there’s no speech police? It is inevitable that “every celebrity or wannabe celebrity that is inter- viewed can feel free to use one of these words. We will expect it as a matter of course, if you prevail.” Justice Anthony Kennedy

29. Justice Scalia’s easy solution... “Maybe... you shouldn’t interview these people.”

30. The Chief Justice’s Freudian Slip “All we are asking for, what the government is asking for, is a few channels where... they are not going to hear the S-word, the F-word. They are not going to see nudity.” Chief Justice John Roberts

31. Andre-Louis-Rene Maginot

32. The Maginot Line

34. The Electronic Maginot Line FCC Approved

35. Other Issues

36. U.S. v. Alvarez, No. 11-210 (2012) The question presented is whether 18 U.S.C. 704(b) is facially invalid under the Free Speech Clause of the First Amendment.

37. R.J. Reynolds Tobacco Co. v. FDA (D.D.C. 2011)

38. Judge Leon enjoins the FDA labeling rule. “One can only wonder what the Congress and the FDA might conjure for fast food packages and alcohol containers if, like the Canadian government, they were not compelled to comply with the intricacies of our First Amendment jurisprudence.”

41. Barnes v. Zaccari (11 th Cir. Feb. 7, 2012) “No tenet of constitutional law is more clearly established than the rule that a property interest in continued enrollment in a state school is an important entitlement protected by the Due Process Clause.”