Sex, Politics, and Admin Law
posted by Frank Pasquale
One of the most Tivo’d moments in Superbowl history came under scrutiny again today in the Third Circuit, where a panel found that “the Federal Communications Commission acted arbitrarily and capriciously” in issuing a $550,000 fine for the “nine-sixteenths of one second glimpse of a bare female breast” on the halftime show in 2004. I have not yet read the opinion, but this report recalls for me the doctrine of Alaska Hunters, rather than a straightforward application of admin law on unexplained departures from precedent:
The court found that the FCC deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so “pervasive as to amount to ’shock treatment’ for the audience.” “Like any agency, the FCC may change its policies without judicial second-guessing,” the court said. “But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.”
On one level, this failed fine for fleeting flaunting seems like an ideal topic for an admin law course, given that it arose out of a controversy everyone is familiar with. But on the other hand, whatever the topic gains in interest from its subject matter also threatens to turn it into a distraction…particularly in a wired classroom with instant access to a muted YouTube.
Perhaps more promising for admin-interest-enhancement is HBO’s program Recount, which dramatizes a rich array of classic admin law dilemmas. Separation of powers, federalism, statutory interpretation–all there, as Laura Dern chews up the scenery in a star turn as Katherine Harris. Have you ever seen a TV movie where the principals argue extensively over statutory interpretation? Or where the action depends on whether the chair of a canvassing board will accept an advisory opinion from the state elections commission as binding or merely persuasive authority, in light of contradictory advice from the state Attorney General? It’s all there, and I predict that anyone looking to introduce law students to admin may profit from having them watch key parts of Recount.
July 21, 2008 at 6:33 pm
Posted in: Administrative Law, Constitutional Law
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Responses (2)
Michael Froomkin - July 21, 2008 at 9:06 pm
Alaska Hunters is about a course of conduct by a regional bureau becoming a de facto then de jure amendment of a legislative rule, such that a new legislative rule is needed to overturn the course of conduct and return to the original rule.
I think Alaska Hunters is weird from an APA (and bureaucratic) perspective, although equitable if we had a free hand.
This case, however, is about something more traditional: Arizona Grocery — an agency has to follow its own rules until (per State Farm) it changes them.
Here the court found the agency had a rule, amended in 2001, and interpreted in a particular way in 2001-04. The court says that in ‘04, in this case, the agency suddenly changed its interpretation of its own rule. This, hornbooks assure us, could be done only by rulemaking, and none happened here. (In theory, the rulemaking could have maybe been via adjudication if the FCC both had and asserted that authority, but that’s not what happened here. Similarly one might ask if a full legislative rule is needed, or if a mere interpretative rule would suffice. But again, the agency didn’t do that.)
The FCC claimed there was no inconsistency because prior decisions related only to dirty words, not pictures. The court didn’t buy that distinction, and there seems nothing in the regs or subsequent decisions to say that it should.
Or am I missing something?
PS. Is it me, or is there some irony in one of the key precedents being the “Golden Globes” case?
Frank - July 21, 2008 at 11:14 pm
The theme of this post, as with recent ones on al-Marri and judicial opinions, is “my commenters is smarter than me” (as Ezra Klein might put it). I jumped the gun on this one–should have read the opinion rather than relying on the reporter’s characterization of it.
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