SFLR Loses Ninth Circuit Appeal

It only took two weeks for the Ninth Circuit to issue its decision regarding San Francisco Liberation Radio‘s challenge to its 2003 raid. The station basically argued that since it was in regular, cordial contact with the FCC throughout a near-decade on air, it should been extended the courtesy of a chance to convince the judge who signed the warrant why such a move was not justified. Additionally, because radio is essentially an “instrumentality of expression,” the gravity of station raids should be weighed in any court’s mind with respect to its potential to hinder that expression.
Two-thirds of the oral argument (30:27, 5.3 MB) was dominated by SFLR’s attorney, Mark Vermeulen. He started by emphasizing the station’s public recognition and willingness to engage the FCC. He was interrupted quite early by a judge (either William Fletcher or Richard Clifton, I don’t know which) who wanted to know why a station that was openly breaking the law deserved gentler treatment just because they were being open about it.
Further exchange covered the station’s history and role in the legalization of an LPFM service. Fletcher/Clifton did note the civilly disobedient nature of SFLR: “Congress made it difficult for people who were the pioneers” by inserting a provision in the LPFM law banning pirates from applying for a license, but the statute still stands, and therefore SFLR’s operation sans license left it open to being raided. Questions of heightened judicial scrutiny due to the expressive instrumentality of radio, and any First Amendment implications of FCC activity against the station, didn’t seem to apply since the license requirement itself was never fulfilled.
Vermeulen, for the purposes of time and argument, laid aside any notion of a constitutional right to broadcast, and instead emphasized a right of listeners to hear a diversity of radio programming. But that did not change Fletcher/Clifton’s analysis: “If you have no license to broadcast, there is nothing for the listener to hear.” Said Judge Sandra Ikuta, “I think you ought to be lobbying Congress to change the statute.”
The government’s lawyer spent eight minutes in argument mode. He hammered on one of SFLR’s early incarnations, when it broadcast from the back of a camper van, as evidence of the station’s “mobility,” which justified the FCC getting its raid-papers in order and in secret. This led to the most interesting moment of the hearing, when the government’s lawyer spun a yarn about imagining SFLR “sort of driving around the streets of San Francisco, as the FCC truck is chasing them, trying to triangulate them.” Fletcher/Clifton replied, “It’s like a bad movie, somehow,” which led to laughs. I do believe that cite is a first for the courts.
The four-page decision that resulted from the Valentine’s Day exchange does not read much differently.
[T]he Supreme Court has established that predeprivation notice and hearings are not required for the seizure of personal property subject to forfeiture if: (1) seizure serves “important governmental purposes”; (2) “pre-seizure notice might frustrate” the relevant statutory purpose; and (3) seizure is”‘made by government officials rather than self-motivated private parties” … The Supreme Court also “has specifically rejected the contention that there is a heightened standard for the seizure of materials that might implicate the First Amendment” except with regard to the large-scale confiscation of allegedly obscene material.
SFLR’s defense against persecution was an exercise in subtlety. Targeting the seizure process as opposed to making a direct constitutional challenge to the licensing system itself was a test of uncharted waters. But in the end a three-judge panel noted that since the station had no license, it had no real leverage against the FCC’s enforcement protocol. But with no hope of obtaining a license, how can one challenge the rules? A familiar conundrum.
Fortunately, this decision is unpublished, meaning it’s generally not to be cited by other courts as precedent. SFLR still retains the option of returning to the air: nobody’s yet been fined or charged with a crime, it’s only the gear that’s missing.