Wednesday, February 27, 2008
12:50–1:50 p.m.

New York Law School
Room A700

On Wednesday, February 27, 2008, the Justice Action Center presented the second Justice Speaks Lunch of the semester, The FCC v. Free Speech: A Discussion on the FCC's Power to Limit the Freedom of Speech Within the Media.

Our speaker for the event was Robert Corn-Revere, respected author and partner at Davis Wright Tremaine who has represented numerous media concerns. Professor Nadine Strossen, President of the ACLU, moderated.

Since 2004, the FCC vastly increased enforcement efforts to restrict broadcast indecency and profanity. However, the Second Circuit found problems with the means the FCC has taken to eliminating indecency from broadcast television. The court held that the FCC’s new approach to enforcement was not sufficiently explained, resulting in “arbitrary and capricious” enforcement (Quoting from Fox Television Stations v. FCC). Specifically, the Second Circuit stuck down fines for “fleeting expletives” because the standards established by the FCC’s Administrative Procedure Act made little sense and were not properly supported. Further, the FCC was given warning that their rules may violate the Constitution. The court stated “we are sympathetic to the Networks’ contention that the FCC’s indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague.” But this leaves much to be decided. Are the FCC’s rules really vague? Should the court give more deference to an administrative act? And do the rules violate the First Amendment rights guaranteed by the Constitution?

As a partner at Davis Wright Tremaine in Washington, D.C., Mr. Corn-Revere has been a leading advocate on the First Amendment, Internet-related issues, and FCC regulatory matters. He has served as counsel in litigation and regulatory proceedings involving broadcast industry rules, the Communications Decency Act, the Child Online Protection Act, Telephone Consumer Protection Act, Internet content filtering in public libraries, and broadcasting and cable television regulations.

Further, some of his biggest cases include his role as lead counsel in: United States v. Playboy Entertainment Group, Inc., in which the U.S. Supreme Court invalidated Section 505 of the Telecommunications Act of 1996 as a violation of the First Amendment, for CBS Television Network in Fox Television Stations, Inc. v. FCC, in which the U.S. Court of Appeals for the Second Circuit vacated the FCC’s application of broadcast indecency rules to “fleeting expletives,” in Motion Picture Association v. FCC, in which the U.S. Court of Appeals for the District of Columbia vacated video description rules imposed on networks by the FCC, and in Mainstream Marketing Services, Inc. v. FTC, challenging the constitutionality of the national "do-not-call" telemarketing regulation. In 2003, Mr. Corn-Revere successfully petitioned former Governor George Pataki to grant the first posthumous pardon in New York history to the late comedian Lenny Bruce.

He is also a well respected author in the field of First Amendment rights. His publications include First Report, Implementing a Flag Desecration Amendment to the U.S. Constitution (Freedom Forum First Amendment Center, July 2005) and co authorship of a three-volume treatise entitled Modern Communications Law (West Group, Inc., 1999).