Branton v. F.C.C., 91-1115

• Decision Date: 30 September 1993
• Docket Number: No. 91-1115,91-1115
• Citation: 993 F.2d 906
• Parties: , 61 USLW 2773, 21 Media L. Rep. 1532 Peter BRANTON, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Radio-Television News Directors Association, et al., Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 906

993 F.2d 906

301 U.S.App.D.C. 244, 61 USLW 2773,

21 Media L. Rep. 1532

Peter BRANTON, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Radio-Television News Directors Association, et al., Intervenors.

No. 91-1115.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 9, 1992.

Decided June 1, 1993.

Rehearing and Suggestion for Rehearing En Banc

Denied Sept. 30, 1993.

Petition for Review of an Order of the Federal Communications Commission.

Ronald D. Maines, Salt Lake City, UT, for petitioner.

James M. Carr, Counsel, F.C.C. ("FCC"), with whom Robert L. Pettit, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, Jane E. Mago, Asst. Gen. Counsel, FCC, and Catherine G. O'Sullivan and James W. Lowe, Attys., U.S. Dept. of Justice, Washington, DC, were on the brief, for respondents. Sue Ann Kanter, Counsel, FCC, Washington, DC, entered an appearance, for respondents.

Timothy B. Dyk, with whom Barbara McDowell, Theodore E. Miles, and Karen K. Christensen (for National Public Radio), Paula A. Jameson and Nancy H. Hendry (for Public Broadcasting Service), J. Laurent Scharff, Washington, DC, (for Radio-Television News Directors Ass'n), and Jane E. Kirtley (for Reporters Committee for Freedom of the Press) were on the brief, for intervenors National Public Radio, et al.

Elliot M. Mincberg, Walter A. Smith, Jr., and Andrew Jay Schwartzman, Washington, DC, were on the brief, for intervenors People for American Way and the Washington Area Citizens Coalition Interested in Viewers' Constitutional Rights.

Before BUCKLEY, WILLIAMS, and D.H. GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge D.H. GINSBURG. D.H. GINSBURG, Circuit Judge:

This is a petition for review of a letter ruling of the Federal Communications Commission refusing to take action against National Public Radio for allegedly broadcasting "obscene, indecent, or profane" language in violation of 18 U.S.C. § 1464. We hold that the petitioner lacks standing under Article III of the Constitution to challenge the FCC's decision.

I. BACKGROUND

In the early evening of February 28, 1989, NPR's news show "All Things Considered" ran a report on the trial of John Gotti, the alleged leader of an organized crime syndicate in New York. The report featured a tape recording of a wiretapped phone conversation between Gotti and an associate. In the 110-word passage that NPR excerpted from the tape recording for broadcast, Gotti used variations of "the f____ word" ten times. He used it to modify virtually every noun and in one instance even a verb ("I'll f____ing kill you"). NPR made no effort, such as substituting bleeps for any or all of these references, to render the passage less offensive to persons of ordinary sensibility.

Peter Branton, who heard the broadcast and was offended, filed a complaint with the Mass Media Bureau of the FCC. The Bureau concluded that the broadcast material in question was "not actionably indecent" and did not provide "the necessary legal basis for further Commission action" pursuant to 18 U.S.C. § 1464. Mr. Branton then wrote to the Commission asking how he could appeal the Bureau's decision. The Commission treated his letter as an Application for Review and, in a brief letter ruling (over one dissent), affirmed the Bureau's decision. The Commission explained that the Gotti tape was part of a "bona fide" news story; indeed, it had been introduced as evidence in the criminal trial that was the subject of that story. The Commission also noted its longstanding reluctance "to intervene in the editorial judgments of broadcast licensees on how best to present serious public affairs programming to their listeners." Letter Ruling, 6 FCC Rcd. 610 (1991).

Mr. Branton now petitions for judicial review of the agency's decision not to proceed against NPR.

II. ANALYSIS

Article III of the Constitution of the United States limits the scope of the federal judicial power to the resolution of "cases" or "controversies." In order to implement that limitation, the Supreme Court has developed a doctrine of standing that, along with the other requirements for justiciability, assures that the federal judicial power is exercised only in "those disputes which confine federal courts to a role consistent with a system of separate powers and which are traditionally thought to be capable of resolution through the judicial process." Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968). Because of "the scope and consequence of the review with which the judiciary is entrusted over executive and legislative action," the federal courts must "observe these bounds fastidiously." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 150, 71 S.Ct. 624, 637, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring).

In order to establish standing under Article III, a complainant must allege (1) a personal injury-in-fact that is (2) "fairly traceable" to the defendant's conduct and (3) redressable by the relief requested. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The alleged injury must be "distinct and palpable," Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), not "conjectural" or "hypothetical," Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983). Application of these familiar principles leads us to conclude that the petitioner lacks standing to seek review of the FCC no-action letter at issue here.

A. Injury-in-fact

In order to challenge official conduct one must show that one "has sustained or is immediately in danger of sustaining some direct injury" in fact as a result of that conduct. Golden v. Zwickler, 394 U.S. 103, 109, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969). This component of the standing doctrine serves both "to assure that concrete adversariness which sharpens the presentation of issues," Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), and to prevent the federal courts from becoming "continuing monitors of the wisdom and soundness of Executive action...." Allen v. Wright, 468 U.S. at 790, 104 S.Ct. at 3345 (quoting Laird v. Tatum, 408 U.S. 1, 15, 92 S.Ct. 2318, 2326, 33 L.Ed.2d 154 (1972)).

The petitioner in this case alleges that he was injured because he was subjected to indecent language over the airwaves. While an offense to one's sensibilities may indeed constitute an injury, see FCC v. Pacifica, 438 U.S. 726, 748-49, 98 S.Ct. 3026, 3039-40, 57 L.Ed.2d 1073 (1978), a discrete, past injury cannot establish the standing of a complainant, such as Branton, who seeks neither damages nor other relief for that harm, but instead requests the imposition of a sanction in the hope of influencing another's future behavior. "[P]ast wrongs do not in themselves amount to that real and immediate threat of injury necessary to make a case or controversy." Lyons, 461 U.S. at 103, 103 S.Ct. at 1666. See also O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974) ("Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects").

If the petitioner suffers any continuing injury, we suppose it is in the nature of the increased probability that, should the NPR broadcast go unsanctioned, he will be exposed in the future to similar indecencies over the airwaves. Under established Supreme Court precedent, however, this marginal increase in the possibility of a future harm does not meet the "immediacy" requirement for Article III standing.

For example, in Los Angeles v. Lyons, 461 U.S. at 95, 103 S.Ct. at 1660, the Court held that a person injured when a policeman subjected him to a chokehold did not have standing to seek an injunction prohibiting the police department from using that maneuver in the future. The Court reasoned that the plaintiff's single experience with a chokehold did not establish "a real and immediate threat that he would again be stopped for a traffic violation, or any other violation, by an officer or officers who would illegally choke him...." Id. at 105, 103 S.Ct. at 1667. See also Rizzo v. Goode, 423 U.S. 362, 372, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976) (plaintiffs lack standing to seek injunction against future police misconduct because threat of repeat injury is too "attenuated"); O'Shea, 414 U.S. at 495-96, 94 S.Ct. at 675-76. Similarly, in Lujan v. Defenders of Wildlife, --- U.S. ----, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Court held that an environmental group lacks standing to challenge policies that will allegedly result in the extinction of endangered species if the group can not establish that its members will visit the habitat of those species in the near future. Id. --- U.S. at ----, 112 S.Ct. at 2138 (" 'some day' intentions [to travel]--without any description of concrete plans, or indeed even any specification of when the some day will be--do not support a finding of the 'actual or imminent' injury that our cases require") (emphasis in original).

In the present case, the possibility that the petitioner will again "some day" be exposed to a broadcast indecency lacks the imminence required under Lyons, Rizzo, and Defenders of Wildlife. It is mere conjecture that a radio station will again broadcast, at a time when the petitioner is listening, indecencies that would be proscribed under 18 U.S.C. § 1464 (as he would have us interpret that statute). While there is, of course, some chance that somewhere, at some time, the petitioner may again be exposed to a broadcast indecency as a result of the Commission's decision, that possibility seems to us far too remote and attenuated to establish a case or controversy under Article III.

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