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SCOTUS History: “specter of administrative apocalypse”

June 28, 2012


Justice Burger wrote the opinion of the Court which concluded that a FCC licensed television broadcaster (CBS) could constitutionally ban paid political advertisements (in this case “refusing to sell [to the DNC affiliated group, Business Executives’ Move for Vietnam Peace] time to broadcast spot announcements expressing the group’s views on the Vietnam conflict”).

This is a nearly 40 year old case, criticized and distinguished, but still cited as good law. Cited recently with quotation to Justice Stewart’s concurring opinion stating “Government entities do not have First Amendment rights.” (See US v American Library Ass’n, 539 U.S. 194; And see Pleasant Grove City v Summun, 555 U.S. 460)

Writing in dissent, Justice Brennan (with Justice Marshall concurring), wrote of the hypothetical fears he viewed as underlying the majority opinion:

the Court raises the specter of administrative apocalypse as justification for its decision today. The Court’s fears derive largely from the assumption, implicit in its analysis, that the Court of Appeals mandated an absolute right of access to the airwaves. In reality, however, the issue in these cases is not whether there is an absolute right of access but, rather, whether there may be an absolute denial of such access. The difference is, of course, crucial, and the Court’s misconception of the issue seriously distorts its evaluation of the administrative difficulties that an invalidation of the absolute ban might conceivably entail.

Specifically, the Court hypothesizes three potential sources of difficulty: (1) the availability of editorial advertising might, in the absence of adjustments in the system, tend to favor the wealthy; (2) application of the Fairness Doctrine to editorial advertising might adversely affect the operation of that doctrine; and (3) regulation of editorial advertising might lead to an enlargement of Government control over the content of broadcast discussion. These are, of course, legitimate and, indeed, important concerns. But, at the present time, they are concerns — not realities. We simply have no sure way of knowing whether, and to what extent, if any, these potential difficulties will actually materialize. The Court’s bare assumption that these hypothetical problems are both inevitable and insurmountable indicates an utter lack of confidence in the ability of the Commission and licensees to adjust to the changing conditions of a dynamic medium. This sudden lack of confidence is, of course, strikingly inconsistent with the general propositions underlying all other aspects of the Court’s approach to this case.

Arguably, all three of Brennan’s supposed concerns have come to pass in the last forty years. I’m not sure if that means the majority’s fears were well-founded or if this type of rhetorical “apocalypse” is always inevitable.

Also, Brennan didn’t invent this rhetorical flourish himself, he took the “administrative apocalypse” from the lower appellate court. Judge Skelly Wright, wrote the opinion of the DC Circuit Court of Appeals where the case was entitled Business Executives’ Move for Vietnam Peace v. Federal Communications Com., 450 F.2d 642, decided August 3, 1971:

We need not define the precise control which broadcasters may exercise over editorial advertising. Rather, the point is that by requiring that some such advertising be accepted, we leave the Commission and licensees broad latitude to develop “reasonable regulations” which will avoid any possibility of chaos and confusion. The spectre of chaos and “mike grabbing” raised by the Commission and intervenors here is, as petitioners say, a “bogus issue.” Broadcasters, after all, have dealt quite successfully with the scheduling problems involved with commercial advertising. We require only that noncommercial advertisers be treated in the same evenhanded way. Although many broadcasters already do allow editorial advertisements on the air, we have not been shown one reason, drawn from their experience, to suggest that chaos has resulted.

Beyond the mistaken suggestion of administrative apocalypse, the Commission and intervenors have raised a more plausible and important claim, involving the danger that a few individuals or groups might come to dominate editorial advertising time. Of course, the mere fact that wealthy people may use their opportunities to speak more effectively than other people is not enough to justify eliminating those opportunities entirely. It takes more money to operate a magazine or newspaper — or, for that matter, a broadcast station — than to buy a segment of time for an editorial advertisement. Yet we are not reluctant to provide strict First Amendment protection for the operators of magazines, newspapers and broadcast stations. The real problem, then, is not that editorial advertising will cost money, but that it may be dominated by only one group from one part of the political spectrum. A onesided flood of editorial advertisements could hardly be called the “robust, wide-open” debate which the people have a right to expect on radio and television.

These are the only two mentions of “administrative apocalypse” in federal court opinions. The word “apocalypse” also appears in other federal court opinions, and though no other mentions of “administrative apocalypse” there is one use of “judicial apocalypse”. See Davis v. Passman, 571 F.2d 793 (1978). More on that case and other Federal Court “apocalypse” cases in an upcoming post (assuming the world doesn’t end before then).

The Supreme Court though has only written the word “apocalypse” in one other opinion and it was merely citation (in a footnote) to a Columbia law review article. In Justice Steven’s majority opinion in the 1995 case Schlup v. Delo, 513 U.S. 298, a footnote citation to an article by James S. Liebman. “Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct Review Parity, 92 Colum. L. Rev. 1997 (1992). Stevens in footnote refers to the article as “offer[ing] a new perspective on the history of the writ [of habeas corpus]”.

Liebman’s article has been cited in 10 federal court opinions, three times before Schlup Supreme Court case and then six more recent mentions that have consistently used it with citation to the first referring opinion, Ritter v Ross, 992 F.2d 750, a 1993 case from the Seventh Circuit about the Rooker-Feldman doctrine. Liebman’s article is repeatedly quoted for the principle that the Rooker-Feldeman doctrine “forbids federal district court appellate review of state court judgments in the guise of collateral attacks when no federal statute authorizes such review.” See Scariano v. Justices, 852 F. Supp. 708 (1994); Johnson v. Kansas, 888 F. Supp. 1073 (1995); Mounkes v. Conklin, 922 F. Supp. 1501 (1996); Rosa v. Senkowski, 1997 U.S. Dist. LEXIS 11177; Snodderly v. Kansan, 79 F. Supp. 2d 1241 (1999); Oblander v. Hamilton, 90 F. Supp. 2d 1216 (2000); and Doe v. Mann, 415 F.3d 1038 (2006). Cf. Bentley v. Scully, 851 F. Supp. 586

Ok that’s it for this post on SCOTUS apocalypse. There are a handful more cases where the Supreme Court uses “apocalyptic” or “apocalyptically” and many more where lower federal courts use all these words. So much more ZombieLaw to come and in the meantime refresh your memories about “undead” and “walking dead” in the federal courts. Recall also more recently when SCOTUS wrote “zombies”.

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