# Ruggiero v. Federal Communications Commission

> Court of Appeals for the D.C. Circuit · January 31, 2003 · 317 F.3d 239

URL: https://www.frixlaw.com/law-library/cases/9439323

## Case

- **Full name:** Greg RUGGIERO, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** January 31, 2003
- **Citations:** 317 F.3d 239; 354 U.S. App. D.C. 337; 2003 WL 203131
- **Precedential status:** Published
- **Opinion:** Concurrence by Randolph
- **Judges:** Ginsburg, Edwards, Sentelle, Henderson, Randolph, Rogers, Tatel, Garland
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9439323

## How later opinions describe it (automated extraction)

- noting that “structural” regulation of the broadcast industry receives only minimal scrutiny despite its “indirect effect upon speech”

## Opinion text

RANDOLPH, Circuit Judge,
concurring:
Ruggiero has two First Amendment arguments. The first is that the statutory and regulatory bar against granting a low-power FM broadcast license to anyone who illegally operated without one is over-broad. The second is that the bar is un-derinclusive. I write separately because, in my view, he is not entitled to make the first argument; and his second argument misconceives First Amendment doctrine.
Ruggiero has not applied to the FCC for a low-power license. He does not claim that his particular circumstances would warrant any special treatment. His attack is on the face of the statute and the implementing regulations. The lifetime bar is overbroad, he claims, because there may be applicants who “briefly or long ago engaged in unlicensed broadcast operations” and who now have become “model citizens.” Petitioner’s Br. at 26. The court rejects Ruggiero’s claim on the ground that Congress rationally treated all pirates alike. Maj. op. at 246-47. Although I agree with the court, I believe another rationale leads to the same result.
Litigants ordinarily do not have standing to raise the rights of others. But in arguing about hypothetical third parties, Ruggiero is in effect invoking the familiar overbreadth doctrine, a staple of First Amendment jurisprudence. The doctrine, which may be traced to Thornhill v. Alabama, 310 U.S. 88 , 60 S.Ct. 736 , 84 L.Ed. 1093 (1940), permits facial challenges brought on the ground that the statute or regulation reaches constitutionally protected speech of parties not before the court. If the statute is substantially overbroad— that is, if it abridges protected speech of others in a good number of cases — the statute is unconstitutional. See Broadrick v. Oklahoma, 413 U.S. 601, 612-15 , 93 S.Ct. 2908, 2915-18 , 37 L.Ed.2d 830 (1973). Overbreadth is sometimes viewed as an exception to traditional standing rules. See Bd. of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 482-84 , 109 S.Ct. 3028, 3035-37 , 106 L.Ed.2d 388 (1989); Los Angeles Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32, 38 , 120 S.Ct. 483, 488 , 145 L.Ed.2d 451 (1999). The doctrine rests on the assumption that if a statute could not be challenged for overbreadth, those not before the court would be chilled and would refrain from exercising their First Amendment rights. See generally New York v. Ferber, 458 U.S. 747, 766-73 , 102 S.Ct. 3348, 3359-63 , 73 L.Ed.2d 1113 (1982). The “principal advantage of the overbreadth doctrine for a litigant is that it enables him to benefit from the statute’s unlawful application to someone else.” Fox, 492 U.S. at 483 , 109 S.Ct. at 3036 . The Supreme Court has treated the doctrine as “‘strong medicine’ ” to be employed “ ‘only as a last resort.’ ” Ferber, 458 U.S. at 769 , 102 S.Ct. at 3361 (quoting Broadrick, 413 U.S. at 613 , 93 S.Ct. at 2916-17 ).
The assumption underlying the over-breadth doctrine is inapplicable here. There is no possibility that third parties could be chilled in the exercise of their First Amendment rights. See Bates v. State Bar of Ariz., 433 U.S. 350 , 380-81, 97 S.Ct. 2691, 2707-08 , 53 L.Ed.2d 810 (1977). We are not dealing with a criminal provision. All that is involved is filing an application with the FCC. Many pirates have done so. Creation of a Low Power Radio Serv., 16 F.C.C.R. 8026, 8030, 8060, 2001 WL 310997 (2001). If they file applications in the future no harm will befall them. Their applications will simply be denied.
*249 There is in short no chilling effect and Ruggiero therefore cannot invoke the overbreadth doctrine. See Los Angeles Police Dep’t, 528 U.S. at 38-41 , 120 S.Ct. at 488-90 ; United States v. Hsia, 176 F.3d 517, 523 (D.C.Cir.1999). Without the benefit of the doctrine, he can succeed in his facial challenge only if he establishes “that no set of circumstances exists under which the Act [and the implementing regulations] would be valid,” United States v. Salerno, 481 U.S. 739, 745 , 107 S.Ct. 2095, 2100 , 95 L.Ed.2d 697 (1987); see Amfac Resorts, L.L.C. v. U.S. Dep’t of Interior, 282 F.3d 818, 826 (D.C.Cir.), cert granted sub nom. Nat’l Park Hospitality Ass’n v. Dep’t of Interior, — U.S. -, 123 S.Ct. 549 , 154 L.Ed.2d 424 (2002); James Madison Ltd., by Hecht v. Ludwig, 82 F.3d 1085, 1101 (D.C.Cir.1996); Chem. Waste Mgmt., Inc. v. EPA, 56 F.3d 1434, 1437 (D.C.Cir.1995); Steffan v. Perry, 41 F.3d 677, 693 (D.C.Cir.1994) (en banc); but see INS v. Nat’l Ctr. for Immigrants’ Rights, 502 U.S. 183, 188 , 112 S.Ct. 551, 555 , 116 L.Ed.2d 546 (1991). This is a burden Ruggiero admits he cannot meet. He has conceded that “some former pirates may lack the requisite character traits to hold [low-power] licenses.” Petitioner’s Reply Br. at 11. Ruggiero himself committed “three-year-long, nearly continuous violations of the licensing requirement,” Free Speech v. Reno, No. 98 Civ. 2680 (MBM), 1999 WL 147743 , at *11 (S.D.N.Y. Mar.18, 1999), aff'd sub nom. Free Speech ex rel. Ruggiero v. Reno, 200 F.3d 63 (2d Cir.1999), and hardly qualifies as a pirate who “briefly” operated without a license.
As against this, the dissent has two responses. The first is that Ruggiero is not really mounting an overbreadth challenge; the second is that he is entitled to mount an overbreadth challenge because others may be chilled from applying for a license since this requires disclosing past broadcasting violations. Dissent at 260-62. Neither reply is correct. As to the nature of Ruggiero’s argument, his attack is on the face of the statute and his claim is that the character qualification provision may not be applied to him because it would be unconstitutional to apply it to others not before the court. E.g., Petitioner’s Br. at 25-27; Petitioner’s Reply Br. at 11. To put the matter more specifically, his argument — and the argument of the dissent — is that the statute cannot be validly applied to Ruggiero or anyone else, no matter how egregious their past violations, because there may be others whose violations were not so egregious. Ruggiero never claims that his past violations were not egregious; we know that they were. This then is a classic statement of an overbreadth claim. See, e.g., Fox, 492 U.S. at 482-84 , 109 S.Ct. at 3035-37 . The dissent says that Ruggie-ro is contending the statute “cannot constitutionally be applied to anyone because the statute automatically bars unlicensed microbroadcasters.... ” Dissent at 261. That indeed is his contention. But what the dissent fails to grasp is that in every overbreadth attack, the plaintiff claims the statute is unconstitutional with respect to everyone; that is the very nature of this sort of attack and of the relief it seeks— invalidation of the statute on its face. See, e.g., Kathleen M. Sullivan & Gekald Gun-theR, First Amendment Law 322 (1999). The dissent also suggests that in order to make a successful overbreadth attack, the plaintiff must concede that the statute can validly be applied to him. Dissent at 261. The Supreme Court has never imposed any such requirement. The Court simply assumes that even if the statute is constitutional as applied to the plaintiff, or even if another provision could be drawn with greater specificity, the statute might nevertheless be invalid because of its effect on others. Ferber, 458 U.S. at 769 , 102 S.Ct. at 3361 .
In the alternative, the dissent claims there is a chilling effect on others because *250 unlicensed broadcasters, in applying for a license, will be reluctant to disclose then-past violations under penalty of perjury. Dissent at 261. The trouble for the dissent is that this particular chilling effect exists regardless whether the statute is upheld or struck down. Anyone applying for a license must be prepared to divulge past violations of Commission rules. Not even the dissent contends that unlicensed broadcasting is irrelevant to the Commission’s decision whether to grant a license. The Commission’s 1986 comprehensive policy statement on character qualifications for licensees states that “as a general matter any violations of the Communications Act, Commission rules or Commission policies can be said to have a potential bearing on character qualifications.” Policy Regarding Character Qualifications in Broadcast Licensing, 102 F.C.C.2d 1179 , 1209, 1986 WL 292574 (1986). And even before Congress passed the statutory bar we are considering, the Commission required applicants for low-power licenses to certify that they had not operated a station without a license. Creation of a Low Power Radio Serv., 16 F.C.C.R. at 8030. The question here — a question the dissent does not address — is whether the statutory disqualification, by its very existence, deters more speech than did the preceding regime. And the answer to that question is clearly no. In short, the statute imposes no new “chilling effect” on the First Amendment rights of others, and as I have discussed, for that reason Ruggiero cannot bring an overbreadth challenge. Besides, the question here is not just whether there is some chilling effect — the claim must be that protected speech is being deterred. Yet there is no chilling effect on speech. “No one has a First Amendment right to a license,” Red Lion Broad. Co. v. FCC, 395 U.S. 367, 389 , 89 S.Ct. 1794, 1806 , 23 L.Ed.2d 371 (1969), and it follows that no one has a First Amendment right to apply for a license.
As to underinclusiveness, Ruggiero’s claim is that the bar violates the First Amendment because persons who have engaged in other sorts of serious misconduct are not automatically banned from obtaining a low-power license. The court dispatches this argument on the ground that Congress’s judgment was reasonable. Maj. op. at 245-46. I agree, but believe there is an alternative answer. The First Amendment does not impose “an ‘underin-elusiveness’ limitation[,] but a ‘content discrimination’ limitation upon a State’s prohibition of proscribable speech.” R.A.V. v. City of St. Paul, 505 U.S. 377, 387 , 112 S.Ct. 2538, 2545 , 120 L.Ed.2d 305 (1992). In other words, the relevance of a statute’s underinclusiveness is that it may reveal discrimination on the basis of viewpoint or content, or may undercut the statute’s purported non-discriminatory purpose. See id.; Republican Party of Minn. v. White, 536 U.S. 765 , 122 S.Ct. 2528, 2537 , 153 L.Ed.2d 694 (2002); City of Ladue v. Gilleo, 512 U.S. 43, 52-53 , 114 S.Ct. 2038, 2043-44 , 129 L.Ed.2d 36 (1994). States could not, for instance, ban only fighting words that criticize a certain race. But the Court pointed out in R.AV. that there would be no First Amendment problem whatever with a State’s prohibiting obscenity in only certain media, although that would be underinclusive. 505 U.S. at 387 , 112 S.Ct. at 2545. Here, there is no colorable claim that the statute and the regulation ban speech on the basis of content. As the court points out, the ban is based entirely on past violations, not on what the broadcaster said in the past or would say in the future if he were allowed to take to the airwaves again. Maj. op. at 244. I would therefore reject Ruggiero’s underinclusiveness argument on this ground. For this reason I also view the dissent’s discussion of underinclusiveness — which notes that not even murderers and rapists are automatically barred *251 from obtaining a license — as beside the point.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9439323. Public record. Not legal advice.