RAY SUAREZ: It was a day of big decisions at the Supreme Court. The justices issued three major opinions, but the fate of the highly anticipated health care and immigration cases won’t be known until next week.
Marcia Coyle of The National Law Journal was in the courtroom today and is here tell us more.
And, Marcia, on the big broadcast indecency question, the justices called the FCC rules vague. They sided with the broadcasters. But did they take on the big First Amendment questions having to do with the regulating of content on broadcast television?
MARCIA COYLE, The National Law Journal: No, they didn’t, Ray.
It was a case, a long-running case that we have all been following closely, and it sort of fizzled in a sense. The justices — this was known as the case of the fleeting expletives and the naked buttocks. It involved two networks, FOX and ABC.
FOX had shown the Billboard Music Awards. In two separate instances, the singer Cher on one show used the F-word. Nicole Richie on the other used the S-word. ABC had shown about seven seconds of the naked back of a woman entering a shower on the defunct TV show “NYPD Blue.”
And they challenged the FCC’s indecency regulations, as you said, under the First Amendment as vague and violating First Amendment speech protections. But the court today unanimously didn’t address First Amendment. Instead, they said these shows happened before the FCC had changed its indecency regulations to focus on fleeting expletives.
And so the broadcasters were not given their notice that they could be violating those regulations. And that is a violation of due process. Due process requires notice. So the court — and then the court specifically said also that it wasn’t addressing the First Amendment, that it also wouldn’t revisit, as it was asked, the 1978 Pacifica decision, which we all know as George Carlin’s infamous, famous seven dirty words monologue on the radio.
The court said instead the FCC now has time to think about its indecency regulations. And the lower courts may possibly deal with the First Amendment issues in some other case, and probably in some other case, it will return to the Supreme Court.
RAY SUAREZ: It’s hard to believe it is 34 years since the George Carlin routine.
RAY SUAREZ: But does a broadcaster come away from this decision with any rough guide on how to proceed? Did the Supreme Court help out broadcasters by saying, OK, this is what you can do, here are the rules of the road?
MARCIA COYLE: No, it really didn’t. It helped out FOX and ABC in these specific instances.
The court did talk about vagueness problems that could arise under the First Amendment, but basically I think it was sending a warning to the FCC that there may be problems with these regulations. But, for now, the broadcasters are also warned that they could violate the FCC regs. The FCC can still enforce what’s on the books.
RAY SUAREZ: The crack cocaine case was aimed at a fairly narrow group of people. They had been convicted, but not yet sentenced under the old formula of penalizing crack cocaine more heavily than the equivalent amounts of powdered cocaine. What did the justices decide?
MARCIA COYLE: The justices decided that the Fair Sentencing Act of 2010, which Congress passed in order to lower the mandatory minimum sentences for crack offenders, does apply to that narrow band of offenders who were convicted before the 2010 law, but sentenced after the 2010 law.
Justice Breyer wrote the opinion. This was a 5-4 decision. The court was closely divided. Justice Breyer noted that there is a strong presumption against retroactive application of more lenient laws. There’s a federal law that requires Congress to expressly state its intent to retroactively apply a lenient — lenient law — excuse me.
But Justice Breyer says you don’t need magic words. You can look at what Congress was doing here to divine its intent. And he found that in six separate areas. And most importantly, he said if they didn’t apply this more lenient law, there wouldn’t be uniform sentencing. And that’s very important. There continued to be disproportionate sentencing for these offenders for years down the road.
RAY SUAREZ: Well, there’s a much larger group of prisoners now serving time who were convicted under the old formulas.
MARCIA COYLE: Yes.
RAY SUAREZ: And if they had committed their crime today, they would have gotten much less time. Is there any relief for them in today’s decision?
MARCIA COYLE: No, there isn’t.
The U.S. Sentencing Commission had urged the court to make it — the law fully retroactive, but the court stuck to the issue that was before it, just this narrow band of offenders.
RAY SUAREZ: The Service Employees International Union case had to do with union dues, political activity and public employees. This is a complicated one. What did the justices rule?
MARCIA COYLE: Well, very basically, the union wanted to impose a mid-year special assessment on members and non-members in order to raise money to react to ballot issues, ballot initiatives in California that were anti-union. Some non-members of the union challenged that assessment as violating their First Amendment rights.
The Supreme Court said today — Justice Alito wrote the decision — that if — the First Amendment requires the union to give a fresh notice to members of what this assessment is for. It cannot rely on the initial notice it provides with annual dues. And it cannot collect money from non-members unless those non-members affirmatively agree.
This was a slight shifting of the law away from requiring non-members to opt out. And what that does in a sense is, it takes away some of the flexibility that unions have to respond to emergencies that come up during the year.
RAY SUAREZ: And gives employees the option to not pay into these special political action funds.
MARCIA COYLE: Absolutely.
RAY SUAREZ: Let’s talk about what the court has been like while you have been waiting for these two big decisions, most notably on the Affordable Care Act.
MARCIA COYLE: Well, you would think something important was going to happen at the Supreme Court this week. Monday in particular, the courtroom was packed. The press room was overflowing.
Monday and today, decision days, if you walked to the front of the Supreme Court outside, you would see television cameras, TV lights. They’re lined up at the foot of the plaza in front of the Supreme Court. The Supreme Court’s public information office has had to create an overflow room to provide opinions to reporters.
And inside the courtroom, especially on Monday, seats were full. You could — you know the justices are well aware of what’s happening. Justice Kagan had to announce a decision. And she began by saying, this is a case about sovereign immunity and prudential standing. And then she paused and said, maybe not what you all came for today.
RAY SUAREZ: So there must be a little bit of letdown when the decisions come and it’s not the big one.
MARCIA COYLE: I think so.
Everybody’s predicting — somebody’s always predicting that it’s coming today, it’s coming today. And it hasn’t come yet.
RAY SUAREZ: Marcia Coyle, thanks a lot.
MARCIA COYLE: My pleasure, Ray.