Today is a legal holiday, so the Supreme Court is not in session. Because of that and Inauguration Day on Wednesday, the Court will hold only one day of hearings this week, on Tuesday. The first of two cases involves government limits on ownership of radio and TV broadcast stations. The second case would be of wider interest if the Court were focusing on the facts of the case: an attempt by the city of Baltimore to hold 21 energy companies responsible for harming the health of the city and its people. The Court, however, is focusing only on a technical issue of the types of issues that can be decided when a case goes from state court to federal court and then is appealed to a higher federal court. The discussion of that case here will be limited.
The Court is hearing these cases remotely because of the pandemic. TV broadcast of the audio, but not the video, portion of the hearings – one hour each — is expected to be available on C-SPAN.org/supreme court
First hearing, starting at 10 a.m.:
Federal Communications Commission v. Prometheus Radio Project
Background: When you open your morning newspaper or a favorite magazine, or log onto the Internet, you are having a different constitutional experience than when you turn on the TV or the radio. The printed works are mostly free of government controls or limits, the broadcasts are not. The First Amendment makes the difference. Printed works do not have to be licensed by the government, but using the electromagnetic spectrum – the airwaves, so to speak – requires a license. That difference is as old as the 17th Century, famously outlined by poet John Milton in his speech, “Areopagitica,” in 1644, protesting Parliament’s power to decide who may be licensed to publish a printed work.
Radio broadcasting – communicating over distances by radiowaves — actually began in the 1890s, when Italian inventor Guglielmo Marconi arrived in England and was soon sending signals as far as 12 miles. The invention came to America soon after that, and was operating commercially here by the early 1900s. In 1927, Congress decided that the government should control who got a license to use radiowaves, and set up the Federal Radio Commission. It was succeeded in 1934 by the Federal Communications Commission.
Why is that form of communication licensed? The main reason is that the electromagnetic spectrum is considered to be owned by the public, so its use has to be regulated, somewhat like control of who provides electricity, water, or natural gas. But letting all who can to use the airwaves creates the problem of interference between signals – static, or cacophony.
It used to be accepted that a frequency could not be split up, so each station was given a license to operate on a given frequency. That, of course, has not been true for decades because of the rapid changes in the technology of radiowave engineering. That technological advance, of course, has taken America into the digital age and there is now a vastly greater number of ways to communicate electronically. And thereby lies the background of the new cases the Supreme Court will hear on Tuesday – in short, if there are so many voices, why does the government still have controls that are mostly limited to the on-air stations, leaving everybody from Facebook to a local community’s online bulletin-board free of official restraints?
Generally, handing out a license does not mean that the FCC can control all, or even most of, what is said (or seen) on a radio or TV station. (By the way, it is the individual station – most often, privately owned — that gets a license, not an over-the-air network like ABC or CBS or a cable network like Fox or MSNBC.) But the FCC does have some controls on content; for example, it used to enforce a “fairness doctrine” (abandoned in 1987) that required licensees to avoid favoring one side in politics in access to air time, and it still has some limited rules for political broadcasts. (We are all familiar, of course, with the last spoken line on a TV ad, such as: “I am Joe Biden, and I approve this message.” That’s been a rule since the 1930s.)
The one kind of control that produced the new Supreme Court case is designed to carry out the policy goal of increasing diversity on the broadcasting stations – that is, increasing the variety of broadcast content, and the multiplicity of voices, including minority voices – that will be heard or seen. From the earliest days of government regulation of radio, and still, Congress and the federal agencies have insisted that ownership of licensed stations (and other media outlets) not be concentrated in the hands of one company locally, or a few companies nationally. The FCC is now under a mandate from Congress to take a new look, every four years, at its “media ownership rules,” and to erase those that are no longer deemed necessary.
With the explosion in communication that arrived with digital expression, the traditional radio and TV station owners have regularly complained that they are being held back by ownership restrictions, seriously curbing their capacity to compete with unregulated media. People can get their broadcasts for free, just by turning a dial or using a remote control, as long as they have a set. Their competitors do not make their products available for free, though; you have to subscribe. So, every four years, the on-air owners ask the FCC to cut back on ownership restrictions on them.
The FCC has done that regularly every four years after 1996, when Congress ordered the quadrennial reviews. Broadcast competitors and advocacy groups, however, have had remarkable success, for some 17 years, in getting a court to block the relaxation of the rules. One of the main complaints they have made, successfully, is that the on-air licensees have not done enough to increase diversity among women’s and racial programming.
In an unusual situation, for all of those 17 years, a single federal court – the U.S. Court of Appeals for the Third Circuit, which is based in Philadelphia – has kept for itself the authority to review the FCC’s relaxation of the rules. It has retained jurisdiction over this particular issue, so that no other appeals court can review what the FCC does every four years. It has been the same panel of three judges on that court that three times has told the FCC to go further with the diversity goal.
Now, both the FCC, in its own appeal, and the National Association of Broadcasters and a long list of broadcast station operators, in their own appeal, have asked the Supreme Court to free the FCC from the grip of the Third Circuit panel, and let it carry out its relaxation of rules as it deems necessary.
The questions before the Court: Does the FCC have the authority, under a 1996 federal law, to relax or withdraw media ownership rules that apply to on-air broadcast licenses, to take account of changing conditions in the media industry, and has the Third Circuit Court misused its power of review of the FCC’s policy? Can the Third Circuit Court continue to keep for itself the full power to review these FCC actions?
Significance: From the foregoing background, it is obvious that the outcome of these consolidated appeals will have a profound effect on communications in the nation’s media industry. The on-air broadcasters want to press forward with consolidation of ownership, so that they can better control their costs and so that they can compete more energetically with the unregulated side of the media. But their competitors want to continue to hold the on-air companies to the objective of insuring that some voices are not drowned out or marginalized on the air. And many of those competitors are small operators themselves, and are growing increasingly fretful about dominance of their markets by expanding media empires.
In a larger constitutional context, beyond the specifics of the ownership issue, these cases could have a major influence on the Court’s interpretation of how the First Amendment applies to the media as a whole in the Digital Age. Does the free-speech clause of that Amendment continue to be a sturdy shield for expression in the new digital media, when more traditional broadcast outlets must continue to function with a diluted form of freedom from government supervision? How much does the mode of expression itself determine the scope of one’s right of free speech?
The Supreme Court has been cautious in recent years in deciding cases affecting the Internet, because it fears that, with technology changing so rapidly, it will make decisions that are outmoded almost as soon as they are issued. But, like the other parts of the federal government, the Court has to be aware that there are increasing public pressures for government regulation of private companies that have become the giants of corporate media, like Facebook and Twitter and Amazon. On which side of the First Amendment do those behemoths stand – regulated or unregulated?
Second hearing, starting at about 11 a.m.:
BP, and others, v. Mayor and City Council of Baltimore
Background: The nation’s fossil fuel industry, the companies that supply the energy fuels of oil and gas, have been under spreading pressure because of the science that suggests, increasingly, that they are contributing to climate change, especially in the impact that burning of those carbon fuels has on the earth’s protective ozone layer. Frustrated that Congress, sensitive to that industry’s powerful lobbying clout, has been unwilling, or unable, to enact significant controls on global warming, a number of state and local governments have been turning to the state courts, relying on legal theories under existing state laws.
In this case, for example, the city of Baltimore and its mayor sued in Maryland state court in 2018 against 26 multi-national energy companies, arguing that they had harmed the city’s people and its institutions, did so after becoming aware of the hazard, and covered it up by misleading “disinformation” publicity. Specifically, the lawsuit relied on eight legal wrongs covered by state law, ranging from creating a “public nuisance” to failure to warn of the hazard to trespass. The lawsuits sought money damages and court orders to stop the harms.
To try to make sure that the case remained in state court, focused only on state-law issues, the city did not try to challenge directly the companies’ emissions of greenhouse gases or their right to continue to do business.
But some of the companies, relying on a federal law, sought to have the case transferred to federal court. They argued that the case belonged in a federal tribunal because the lawsuit was actually targeting exploration and production of fossil fuels that the companies insisted they had done at the direction of federal government officers.
This maneuver was based on a federal law that has existed since 1789. The founding generation worried that national interests under the new Constitution might be sacrificed or compromised from prejudice in state courts, so they authorized those who were sued in state courts to transfer the case to federal court. That is allowed if national interests are at stake.
The law allows those who had filed the lawsuit to try to get the case returned to state court, arguing that it only involves state law questions. But the sued party, under a more recent version of the old law, can try to keep the case in federal court if it can show that the challenge it took was done in response to federal agency commands.
That’s what the energy companies claimed in the Baltimore case, but a federal trial judge agreed with the city, and ordered the case back to Maryland courts for trial. The energy companies appealed to a higher federal court, the U.S. Court of Appeals for the Fourth Circuit. Besides arguing that federal officers made them do what was challenged, the firms raised a whole host of other reasons why the case belonged in federal court, ranging from interference in foreign affairs to admiralty law. If the courts accepted any one of those claims, the case could remain in federal court.
The Fourth Circuit Court, however, ruled that the only thing it could decide was whether the companies had acted under federal officers’ direction, and it concluded that that was not so. The case was then destined to return to a Maryland court for trial.
A group of 21 energy companies took the case on to the Supreme Court. Now with the support of the federal government, they asked the Justices to rule that the appeals court had authority to rule on every one of their reasons for keeping the case in federal court, not just the question of federal officer direction. That is the issue the Justices will now decide.
The main significance is that the Justices are expected to resolve a dispute among lower federal courts on how wide the powers of the appeals courts are to review cases that started in state, were shifted to federal court, and then appealed. Ruling for the energy companies would give those who are sued in state courts more opportunities to get out of state court and into what they hope would be a more sympathetic federal tribunal.
No part of the coming decision by the Justices, however, will settle whether the city of Baltimore had proved its claims of violations of state law. That issue cannot be dealt with until the appeals procedure question is answered.
