Ted Hearn

Did Book Deal Boot Thomas From FCC Indecency Case?
October 1, 2007

Could a lucrative book deal signed by Supreme Court Justice Clarence Thomas have an impact on what could be the biggest broadcast TV indecency case to reach the high court since the landmark Pacifica case in 1978?

Thomas, according to unattributed accounts by the Associated Press and the Wall Street Journal, received a $1 million advance to write his newly published book “My Grandfather’s Son: A Memoir.” Thomas’s discussion of the book Sunday night on the CBS program 60 Minutes drew 12.8 million viewers.

The $1 million payment -- assuming the varsity media has this key part of the book deal correct -- was paid by publisher HarperCollins, which is 100% owned by Rupert Murdoch’s News Corp. Neither HarperCollins nor Thomas’s agent, Writers’ Representatives, LLC, would confirm the payment.

The financial relationship between Thomas and News Corp. could become an issue a few weeks from now when the Justice Department asks the court to uphold the Federal Communications Commission’s authority to punish TV stations for the fleeting broadcast of the “F-word.”

Solicitor General Paul Clement wants the high court to overturn a 2-1 ruling in June by a panel of the U.S. Court of Appeals for the 2nd Circuit, which agreed with Fox Television Stations that the FCC’s unprecedented crackdown on the isolated broadcast of vulgar language was an illegally designed policy reversal. Clement’s intervention probably means the court will take the case.

Since Thomas’s publisher and Fox Television Stations are commonly owned by News Corp., Thomas might need to sit out the indecency battle, leaving eight justices to determine the outcome. The first step is whether the court agrees to hear the case, which takes at least four votes. To win the case, Justice would need five of eight votes. A tie would mean the lower court’s ruling stood. Clement is expected to file a request for review by Nov. 1.

A former Supreme Court clerk, who asked to remain anonymous, said it wasn’t clear that Thomas would need to recuse himself -- because no matter which way Thomas voted, the value of his book deal wouldn’t change. The same could not be said, the clerk explained, if Thomas had received $1 million in News Corp. stock for his book.

The Supreme Court’s public information office didn’t provide any guidance Monday on the Thomas situation. However, that office was busy with the media on Monday, the first day of the court’s new term.

It isn’t rare for a Supreme Court justice to drop out of a case – usually over a financial conflict of interest. But it is rare for a justice to provide the public with an explanation. Evidently, the justices prefer secrecy because they don’t want parties before the court to manufacture conflicts – say, by hiring a relative or two of one of the justices.

Thomas’s absence could be to the Justice Department’s advantage if the outcome of a major cable television indecency case in 2000 is any guide. Seven years ago, the court ruled 5-4 in U.S. v. Playboy Entertainment Group Inc. that a federal law violated the First Amendment because it effectively banned the distribution of pornographic cable channels for two-thirds of the broadcast day when individual blocking technology was a viable option.

All five justices from the Playboy majority still serve on the court, including Thomas.

Maybe that’s why the Parents Television Council, a foe of TV indecency, didn’t issue on Monday one of those ethically high-minded statements about no amount of money can budge Thomas from ruling on principle.

“Any judge at any level of the judicial system should recuse himself or herself if there is a conflict of interest or even an appearance of a conflict. In fact, it is a matter of law that judges recuse themselves in such circumstances,” said PTC president Tim Winter, who is an attorney.

Only Justices Antonin Scalia and Stephen Breyer remain from the Playboy minority. Where Chief Justice John Roberts (new to the court in September 2005) and Justice Samuel Alito (new in January 2006) stand on TV indecency is anyone’s guess at this point.

Posted by Ted Hearn on October 1, 2007 | Comments (0)