Federal Communications Commission (FCC) v. Fox Television Stations (07-582), Kansas v. Ventris (07-1356), Dean v. United States (08-5274), Cone v. Bell (07-1114) and order list

May 5, 2009 Supreme Court Update

Greetings, Court fans!

Justice Souter's retirement announcement overshadowed other news at the Court last week. Though he is a spring chicken compared to fellow Justices Ginsburg and Stevens (who may be the next Justices to step down), Souter has long wanted to return to his native New Hampshire – which he will soon get to do. All eyes are now on President Obama as he selects his first Supreme Court nominee. The balance on the Court is unlikely to shift, however, as Justice Souter (who was appointed by President George H. W. Bush, but is viewed as a reliably liberal) is likely to be replaced by another "liberal" Justice.

The show must go on though – and it has, with the Court issuing four decisions last week, including a significant obscenity ruling, and an Order list. And the Court handed down four more decisions yesterday! If you're feeling inundated, you should be. As of this date last Term, the Court had issued only 35 decisions. We're at 55. The Court didn't reach that total until mid-June last year, just weeks before the Term ended. The Court did increase its docket from 78 cases last Term to 88 this Term, however, so we've still got plenty of cases to come. Today's Update will address the four cases from last week and I'll be back shortly to bring you yesterday's decisions.

The show stopper last week came in Federal Communications Commission (FCC) v. Fox Television Stations (07-582), where the Court addressed a broad social issue – the public broadcast of indecent language – in the narrowest way it could. Instead of giving the parties what they wanted – a battle over the First Amendment and the Court's 1978 FCC v. Pacifica decision on George Carlin's "Filthy Words" monologue – the Court focused on the question of whether the FCC acted in an arbitrary and capricious manner in violation of the Administrative Procedures Act (APA), when, in 2004, the FCC reversed its longstanding "fleeting expletive" policy, which had permitted broadcasters to transmit a single, fleeting use of an expletive. Under the 2004 FCC ruling, even an isolated, nonliteral use of the F- or S-words could be considered actionably indecent, subjecting a broadcaster to fines and other penalties. The FCC then applied this policy to comments made by Cher to her critics ("F*** ‘em") on Fox's 2002 Billboard Music Awards, and comments made by reality-TV star Nicole Richie (about how it is "not so f***ing simple" to get "cow s*** out of a Prada purse") on Fox's 2003 Billboard Music Awards. Though the FCC believed the Cher and Richie comments may have been literal, and not mere fleeting expletives (thus subject to regulation under even its old policies), it concluded that under the new policy they were actionably indecent regardless of how they were interpreted. The FCC did not impose sanctions, however, in light of its change in position regarding fleeting expletives. Fox appealed the FCC's decision to the Second Circuit, which interpreted the APA and Supreme Court precedent as requiring agencies who reverse course to make clear why their old policy no longer applies, and why the new policy is better. The Second Circuit then rejected the FCC's sudden policy shift as arbitrary and capricious. A divided Court reversed.

Justice Scalia authored the majority opinion (joined by the Chief and Justices Thomas, Alito and Kennedy (as to all but one section)), which held that agency policy reversals are not subject to more searching review than an initial policy choice. The agency's reasoned explanation for its action must display awareness that it is changing position and that there are good reasons for the new policy, but it need not demonstrate that the reasons for the new policy are better than the reasons for the old one. The majority rejected any invitation to apply a more stringent standard of review to agency actions that implicate constitutional liberties. (That issue – whether the FCC's new rule violated the First Amendment – was not before the Court and would be addressed another day.) The FCC was neither arbitrary nor capricious for justifying its policy shift based on the fact that: (1) there was no real distinction between literal and nonliteral uses of offensive words (i.e., even when used as an expletive, the F-word's power to offend derives from its literal, sexual meaning); (2) applying a context-based approach to indecency determinations involving isolated expletives was more consistent with its overall context-based approach to enforcement; (3) allowing a safe harbor for fleeting expletives would lead to more use of these words; and (4) technological advances had made it easier to bleep out offensive words today than it was when the FCC adopted its fleeting expletive exemption decades earlier. The majority was not concerned that there was scant empirical evidence that children were being harmed by fleeting broadcast profanity, because Congress's general determination that indecent material harms kids was enough. (As Scalia noted, it wouldn't exactly be possible to conduct a double-blind study, would it?) The majority also was not concerned that the FCC may have pushed the outer Constitutional limits imposed by Pacifica, stating that Pacifica never said that fleeting expletives may not be forbidden. And the Court was not addressing the First Amendment issues in this case anyway. In a portion of the opinion not joined by Justice Kennedy, Scalia also rejected the argument that the FCC, as an "independent" agency (not under the control of the executive branch), should be subjected to more searching scrutiny by the courts, stating: "There is no reason to magnify the separation-of-powers dilemma posed by the Headless Fourth Branch . . . by letting Article III judges – like jackals stealing the lion's kill – appropriate some of the power that Congress has wrested from the unitary executive."

Breyer, joined by the liberal wing of the Court, dissented, arguing that in changing courses, an administrative agency must provide a satisfactory answer to the simple question, "Why did you change?" (Justice Kennedy wrote a concurrence in which he agreed with Justice Breyer on this point, but nonetheless found the FCC's answer in this case satisfactory.) This does not mean courts are applying a heightened burden of proof when an agency reverses course, it is simply applying the existing arbitrary and capricious standard under the unique facts of a radical policy change. (Thus, it might well be appropriate for an agency to decide, at the outset, that drivers should drive on the left side of the road rather than the right based on a coin flip – since either side may be equally good. But it wouldn't be appropriate for the same agency to require right-side driving based on a similar coin flip years later because it would need to explain the reason for the change in policy.) Depending on the circumstances, the agency would need to explain why it no longer relied on certain factual findings or a particular view on the governing law that supported its prior policy. In this case, because the original FCC policy was based on its interpretation of Pacifica and fear of crossing a constitutional line, the FCC behaved arbitrarily and capriciously by imposing the new policy without adequately explaining why the FCC's initial reading of Pacifica and wariness of the First Amendment was wrong or no longer applicable. Breyer also faulted the FCC for failing to take into account the effect of its new policy on small and local broadcasters, who may not be able to afford the new bleeping technology, and may limit their coverage of public events out of fear of FCC sanctions. (To which Scalia responded that this probably wouldn't be a problem since "their down-home local guests probably employ less vulgarity than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitterati from Hollywood.") As for the FCC's stated justifications for the policy shift, Breyer noted that all but one existed at the time of the original formulation of the FCC policy, and thus did not explain a shift in policy. And Breyer had already dismissed the only new development – advances in bleeping technology – as insufficiently analyzed by the FCC.

Stevens dissented separately to emphasize that independent agencies like the FCC are subject to legislative, not executive control, and that the Court should consider the FCC's original interpretation of the statute more closely attuned to the original intent of Congress. Scalia, no fan of legislative history when it comes to statutory interpretation, nonetheless responded to Stevens with a lengthy discussion of the 2004 committee hearings on FCC's enforcement with respect to broadcast indecency—with select quotes from legislators—in support of his argument that Congress supported the FCC's policy shift. Stevens noted the irony of Scalia's reliance on isolated statements from committee members as evidence of Congress' intent, remarking that such treatment "would make even the most ardent student of legislative history blush." Stevens also argued that the majority's reading of the Pacifica decision was too broad, because that case turned on the fact that Carlin's "Filthy Words" monologue consisted of a non-stop harangue of profanity. Stevens believed that the Pacifica Court would have never allowed a sanction for a mere fleeting expletive.

Justice Thomas, concurring with the majority, and Justice Ginsburg, joining the dissent, also offered their takes on Pacifica, previewing the First Amendment issues that the Second Circuit may take up on remand (and may eventually wind up back before the Court). Thomas suggested that Pacifica and other cases allowing this "deep intrusion into the First Amendment rights of broadcasters" are suspect because they are divorced from the original meaning of the First Amendment, and are instead based on technological justifications (i.e., broadcast band scarcity) that no longer make sense in the world of digital transmission, cable and satellite TV, the Internet, and V-Chips. Thus, the next time around, Justice Thomas might well swing toward the liberals on the First Amendment issues. In contrast to Thomas' originalism, Ginsburg referred to shifting social standards since Pacifica, noting that words unpalatable to some are commonplace to others, and the stuff of everyday conversations. Though the Justices may come at it from different directions, there seems to be enough support to eventually overturning the FCC's policy on First Amendment grounds.

The remaining three decisions from last week came in criminal cases. In Kansas v. Ventris (07-1356), the Court found that a confession obtained in violation of a defendant's Sixth Amendment right to counsel can be admitted for impeachment purposes even though the State may not use it in its case in chief. There's a saying that the truth with "out" and in Ventris' case it did – when he confessed his crimes to an undercover informant planted in his cell by the police. The Sixth Amendment right to counsel extends to critical pretrial proceedings, including, as the Court held in Massiah v. United States(1964), deliberate efforts by the State to extract statements from the accused. Nobody disputed that the undercover informant's subtle effort to extract statements from Ventris qualified – so the Court assumed that it did. Confessions obtained in violation of the Sixth Amendment ordinarily cannot be introduced into evidence. But can they be used to impeach the (rare) defendant who takes the stand and testifies to the contrary? The short answer is: "Yes." Led by Justice Scalia, the Court first concluded that Ventris' Sixth Amendment right was violated at the time of the unlawful interrogation – not when the State later sought to admit his testimony at trial. So the question was not preventing a constitutional violation, since the violation had already occurred, but determining the scope of the remedy. The seven-Justice majority concluded that the exclusionary rule should not bar introduction of such evidence for impeachment purposes because the interests safeguarded by the Sixth Amendment were "outweighed by the need to prevent perjury and assure the integrity of the trial process." Justice Stevens, joined by Ginsburg, dissented. In their view, the constitutional violation began during the interrogation, but continued when the "fruits of the State's impermissible encounter with the represented defendant" were used at trial. Thus, the evidence should have been excluded. The dissenters lamented that the decision "privileged the prosecution at the expense of the Constitution," undercutting the legitimacy of the entire criminal process.

Next up, in Dean v. United States (08-5274), the Court considered whether an individual who accidentally discharges a weapon during the course of a violent or drug trafficking crime is subject to a 10 year mandatory minimum sentence. 18 U.S.C. § 924(c)(1)(A) criminalizes using or carrying a firearm during and in relation to a violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime. An individual convicted under the section is subject to a 5 year mandatory minimum sentence, which increases to 7 if the firearm is "brandished," and 10 "if the firearm is discharged." During the course of a bank robbery, defendant Dean accidentally discharged his gun while reaching over a teller to grab money. Upon hearing the gunshot, Dean looked "surprised" and rushed out the door. Unfortunately for our bungling bank robber, the Court found that he was subject to a 10 year mandatory minimum sentence under § 924(c)(1)(A)(iii) notwithstanding that he did not mean to fire his gun. As Chief Justice Roberts explained, on behalf of the seven member majority, Congress did not use language suggesting an intent requirement (i.e., words such as "knowing" or "intentional") and Congress' use of the passive voice – "is discharged" – provides further evidence that no intent is required. Furthermore, in defining the term "brandished," Congress made clear that the gun needed to be displayed "in order to intimidate." Thus, when Congress wished to include an intent requirement, it knew how to do so, and did so explicitly. The Court also rejected Dean's claim that the Court should read a mens rea requirement into the statute. While acknowledging that it is "unusual to impose criminal punishment for the consequences of purely accidental conduct," the Court explained that "it is not unusual to punish individuals for the unintended consequences of their unlawful acts." Here, there was no dispute that Dean violated the law by engaging in a violent offense while carrying a weapon – all with the requisite intent. The discharge of his gun was an unintended consequence of that crime. "Those criminals wishing to avoid the penalty for inadvertent discharge can lock or unload the firearm, handle it with care during the underlying violent or drug trafficking crime, leave the gun at home, or—best yet—avoid committing the felony in the first place."

Justice Stevens, joined by Breyer, dissented. The dissenters relied heavily on the statute's structure, which imposes escalating penalties for increasingly culpable conduct (carrying: 5 years; brandishing: 7 years; discharging: 10 years). Since brandishing a weapon, which requires proof of intent to intimidate, only imposes a 7 year sentence, the best reading of the "discharge" provision, which carries the highest penalty, is that it applies only when there is an intentional discharge. Legislative history supported this conclusion. Moreover, absent a clear statement by Congress adopting a strict liability crime, there is a presumption that criminal provisions include an intent requirement, and there is no justification for departing from the common law mens rea requirement when dealing with sentencing factors. Justice Breyer wrote a separate dissent in which he acknowledge the Courts "strong arguments," but felt that the "rule of lenity" tipped the balance in favor of Dean.

Finally, in Cone v. Bell (07-1114), the Court considered a federal habeas corpus claim based on the State's alleged suppression of evidence favorable to Cone under Brady v. Maryland. The procedural history of "this unusually protracted case" had already stretched nearly three decades by the time the Court reviewed it (for the third time!). Cone, the petitioner, was a Vietnam war vet who was sentenced to death by a Tennessee court in 1982, after he robbed several stores, shot a police officer, and bludgeoned an elderly couple to death. At trial, Cone claimed that as a result of post-traumatic stress disorder from his experience in Vietnam, he had become addicted to drugs and developed "amphetamine psychosis," rendering him temporarily insane and thus innocent of the crimes charged. The prosecutor characterized this defense as "baloney," and argued that Cone's claims of drug use were overblown. The jury ultimately sentenced Cone to death. Cone appealed to the Tennessee Supreme Court, raising numerous claims including that the prosecutor had failed to disclose relevant evidence in violation of State law disclosure requirements, but his conviction and sentence were affirmed. He then filed a petition for post-conviction relief, claiming ineffective assistance of counsel, which was denied. Undeterred, Cone filed a second petition, raising numerous claims – including that the State had failed to disclose evidence in violation of his Constitutional rights. The post-conviction court found all of the claims "previously determined" or "waived." Cone appealed this determination to the Tennessee Court of Criminal Appeals, which remanded for further proceedings. On remand, the State conflated Cone's previous state-law disclosure claim with his new Brady claim. Around this time, due to a new state law, Cone was able to discover portions of the prosecutor's file that revealed that evidence had in fact been kept from him, including testimony that might support his claim of drug-induced psychosis, and discredit testimony of prosecutorial witnesses. He amended his post-conviction petition to include this evidence, but the post-conviction court denied relief, finding that certain claims were "waived," and that the Brady claim was a "mere restatements of previous" claims raised and denied. The Tennessee Court of Criminal Appeals affirmed, and Cone then brought a federal habeas action. Before the District Court, the State reversed its arguments, now claiming that Cone's Brady claim had not already been litigated, but had been waived instead. The District Court found the Brady claim to be procedurally barred. Cone appealed to the Sixth Circuit, where the State changed course once again, claiming this time that Cone had not made adequate factual allegations in state court to support his Brady claim. The Sixth Circuit held that it was barred from reaching the merits, because the claim had been "previously determined or waived" according to the Tennessee courts, but vacated the death sentence on other grounds. After two trips up to the Supreme Court on other issues, each of which resulted in the Court reversing a Sixth Circuit ruling favorable to Cone, the Sixth Circuit addressed the Brady claim again, concluding that in addition to being defaulted, it also failed on the merits because the withheld evidence was not material in light of the overwhelming evidence of Cone's guilt. The Court granted cert a third time to determine whether a federal habeas claim is "procedurally defaulted" when it is twice presented to the state courts.

Justice Stevens wrote for the majority, holding that neither "prior determination" nor "waiver" provided an "independent and adequate state ground" for denying Cone review of his federal claim. Cone had not presented his Brady claim in the direct appeal of his sentence – that claim was limited to a state law disclosure claim. When Cone did present it, the Tennessee courts failed to properly consider the claim, holding that it had been previously decided, when it had never been addressed. The Court also rejected the State's contradictory theory that Cone had waived his Brady claim, according deference to the Tennessee courts' determination that the claim had been "previously determined," not "waived." The Court then addressed prosecutorial obligations to turn over evidence, and the standard of "materiality" that gives rise to a Due Process claim. While the Court agreed with the Sixth Circuit's conclusion that such evidence would not have been material to Cone's conviction given the high standard for establishing insanity, it criticized the lower courts for not considering whether the evidence would have been material to his sentencing. Noting that the standard for whether the evidence would have made a difference was one of "reasonable probability," the Court remanded the case to the District Court to evaluate the merits in the first instance.

Chief Justice Roberts wrote a succinct concurrence, emphasizing the "unusual facts [of the case] that necessarily limit its reach." Only the "unique procedural posture" allowed de novo federal review, which usually is "sharply limited by established principles of deference." Further, he found the Court's extended consideration of the facts "unusual" and "dubious," and noted that this review did not determine that Cone is entitled to relief. Whether he is so entitled is for the District Court to determine – but under constitutional standards, not the ABA guidelines of prosecutorial conduct mentioned by the majority in a footnote.

Justice Alito concurred in part and dissented in part. He agreed that Cone's Brady claim had not been decided on direct appeal, and that the second attempt to litigate the claim in state court did not bar subsequent federal habeas review. However, he thought this all irrelevant, since in his view Cone never raised a Brady claim in the Tennessee Court of Criminal Appeal. The "far-from-exemplary" way in which counsel had litigated the claims, the "morass" that was presented to Tennessee courts (including briefs that did not mention a Brady claim explicitly until the reply), indicated that the Brady claim was never addressed by the state courts. Whether the claim was now procedurally defaulted under state law should be determined on remand – as should the materiality of the evidence for purposes of punishment. However, he thought the remand should go to the Sixth Circuit, not the District Court, since the Sixth Circuit will necessarily review de novo whatever determination the District Court makes.

Justice Thomas, joined by Justice Scalia, dissented, finding no justification for another remand. The three decades of court proceedings and three trips to the Court were enough. There was no "reasonable probability" that the suppressed evidence would be sufficient to have affected the sentencing. Moreover, the majority's holding that Cone "might" be able to show it "possible" that the evidence would have persuaded the jury to spare his life was at odds with the "reasonable probability" standard required. Finally, the facts before the Court from the voluminous record of proceedings below indicated that there was no chance that the withheld evidence would have resulted in a different outcome. The remand would only have the effect of delaying for many more years the death sentence imposed by the Tennessee jury.

The Court also granted cert in three cases:

Schwab v. Reilly (08-538), in which the Court will continue the first two questions presented: "(1) When a [Chapter 7] debtor claims an exemption using a specific dollar amount that is equal to the value placed on the asset by the debtor, is the exemption limited to the specific amount claimed, or do the numbers being equal operate to "fully exempt" the asset, regardless of its true value? (2) When a debtor claims an exemption using a specific dollar amount that is equal to the value placed on the asset by the debtor, must be a trustee who wishes to sell the asset object to the exemptions within the thirty day period of Rule 4003, even though the amount claimed as exempt and the type of property are within the exemption statute?"

NRG Power Marketing v. Maine Pub. Utilities (08-674), addresses "Section 206 of the Federal Power Act (FPA), 16 U.S.C. § 824e(a), [which] requires that rates for the transmission and sale of electricity in interstate be ‘just and reasonable.' Under the Mobile-Sierra doctrine . . . – the Federal Energy Regulatory Commission ("FERC") must ‘presume that the rate set out in a freely negotiated wholesale-energy contract meets the 'just and reasonable' requirement imposed by law,' and that ‘presumption may be overcome only if FERC concludes that the contract seriously harms the public interest.' [. . .] The question presented is: Whether Mobile-Sierra's public-interest standard applies when a contract rate is challenged by an entity that was not a party to the contract."

Kucana v. Holder (08-911), presents the following question for review: "What is the scope of the jurisdictional stripping provision of 8 U.S.C. Section 1252(a)(2)(B)(ii) and whether the statute removes jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals?

I'll be back soon to bring you yesterday's opinions. Until then, thanks for reading!


From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400