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FCC & USA v. Fox, et al., No. 10-1293 (Sup. Ct.)

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Released: September 14, 2011
No. 10-11293
IN THE
Supreme Court of the United States
d
FEDERAL COMMUNICATIONS COMMISSION, et al.,
Petitioners,
--v.--
FOX TELEVISION STATIONS, INC., et al.,
Respondents.
FEDERAL COMMUNICATIONS COMMISSION
and UNITED STATES OF AMERICA, Petitioners,
--v.--
ABC, INC., et al.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF AMICUS CURIAE OF MORALITY IN MEDIA, INC.
IN SUPPORT OF PETITIONERS
PATRICK A. TRUEMAN
Counsel of Record
ROBERT W. PETERS
Co-Counsel
MORALITY IN MEDIA, INC.
475 Riverside Drive
New York, New York 10115
(212) 870-3222
p.trueman@verizon.net

TABLE OF CONTENTS

TABLE OF AUTHORITIES............................................. ii
INTEREST OF AMICUS CURIAE.....................................1
SUMMARY OF ARGUMENT ...........................................2
ARGUMENT .................................................................5

I.
THE FCC'S BROADCAST INDECENCY
ENFORCEMENT POLICY IS NOT
UNCONSTITUTIONALLY VAGUE............5

II.
IT ISN'T JUST BROADCASTERS WHO
MUST USE COMMONSENSE WHEN
ASSESSING OFFENSIVE REFERENCES
TO SEXUAL ORGANS & ACTIVITIES ....13

III.
BROADCASTERS WHO HAVE
IGNORED CONCERNS ABOUT
PROGRAMMING SHOULD NOT BE
HEARD TO COMPLAIN ABOUT
THE FCC'S INDECENCY POLICY...........16

IV.
THE FCC'S CURRENT POLICY
ON CONTENT WITH `SERIOUS
VALUE' DOES NOT VIOLATE
THE FIRST AMENDMENT.......................22

V.
THE FCC'S CURRENT POLICY ON
`FLEETING EXPLETIVES' DOES
NOT VIOLATE THE
FIRST AMENDMENT................................26

VI.
`STRICT SCRUTINY' IS NOT
THE APPROPRIATE STANDARD
FOR REVIEW OF BROADCAST
REGULATION............................................31

CONCLUSION........................................................35

TABLE OF AUTHORITIES

CASES

Action for Children's TV v. FCC,
852 F.2d 1332 (D.C. Cir. 1988).........................11, 22

Action for Children's TV v. FCC,
58 F.3d 654 (D.C. Cir. 1995), cert. den.,
516 U.S. 1043 (1996).................................................8

Alexander v. U.S., 509 U.S. 544 (1993)..................12

Bethel School District v. Fraser,
478 U.S. 675 (1986).............................................5, 28

Chaplinsky v. N.H., 315 U.S. 568 (1942) .........28, 29

City of Erie v. Pap's A.M., 529 U.S. 277 (2000) .....25

Columbia Broadcasting v. Democratic
National Committee, 412 U.S. 94 (1973) ...............34

Denver Area Educ. Telecomm. Consortium v.
FCC, 518 U.S. 727 (1996). ..................................9, 10

Dial Inform. Services v. Thornburgh,
938 F.2d 1535 (2nd Cir. 1991), cert. den.,
502 U.S. 1072 (1992).................................................8

FCC v. Pacifica Fdn., 438 U.S. 726 (1978)..... passim

Fox TV Stations v. FCC,
489 F.3d 444 (2d Cir. 2007) ........................28, 30, 31

Frisby v. Schultz, 487 U.S. 474 (1988)...................35



ii


Ginsberg v. New York, 390 U.S. 629 (1968) ..........33

Graham v. Florida, 130 Sup.Ct. 2011 (2010).........35

Hamling v. United States, 418 U.S. 87 (1974) ......22

Harris v. Forklift Systems, 510 U.S 17 (1993) ......14

Hess v. Indiana, 414 U.S. 105 (1973).....................31

Lyle v. Warner Brothers TV Productions,
132 P.3d 211 (Cal. 2006).........................................16

Miller v. Calif., 413 U.S. 15 (1973).................7, 8, 11

NEA v. Finley, 524 U.S. 569 (1998). ......................22

Near v. Minnesota, 283 U.S. 697 (1931) ................27

Paris Adult Theater I v. Slaton,
413 U.S. 49 (1973)...................................................35

Pinkus v. United States, 436 U.S. 293 (1978) .......21

Pope v. Illinois, 481 U.S. 497 (1987) ......................22

Reno v. ACLU, 521 U.S. 844 (1997) ...................9, 11

Reeves v. C.H. Robinson Worldwide,
594 F.3d 798 (11th Cir. 2010)..................................15

Rosen v. United States, 161 U.S. 29 (1896) .............5

Rosenfeld v. N.J., 408 U.S. 901 (1972).......16, 28, 30

Smith v. United States, 431 U.S. 291(1977)..........23



iii


Suders v. Easton, 325 F.3d 432 7 (3rd Cir. 2003),
rev'd on other grounds, Penn. State Police v.
Suders, 542 U.S. 129 (2004) ...................................31

Torres v. Pisano, 116 F.3d 625 (1997), cert. den.,
522 U.S. 997 (1997).................................................31

U.S. v. Playboy, 529 U.S. 803 (2000)......................31

Village of Hoffman Estates v. The Flipside,
Hoffman Estates, 455 U.S. 489 (1982)...................10

STATUTES

Communications Act of 1934....................................5

Radio Act of 1927 ................................................5, 26

18 U.S.C. 1464.....................................................5, 7

47 U.S.C. 223(b) ......................................................9

18 U.S.C. 532(h) ......................................................9

ADMINISTRATIVE DECISIONS

Citizen's Complaint Against Pacifica Fdn.
Stn. WBAI (FM), 56 FCC2d 94 (1975).... ...........6, 10

Eastern Educational Radio (WUHY-FM),
24 FCC 2d 408 (1970). ........................................6, 22






iv


Industry Guidance on Commission's Case Law
Interpreting 18 U.S.C. 1464 & Enforcement
Policies Regarding Broadcast Indecency,
16 FCC Rcd 7999 (2001) ...................................10, 26

In re Infinity Broadcasting Corp. of Pa.,
3 FCC Rcd. 930 (1987) ..............................................7

OTHER AUTHORITIES

Z. Chafee, Jr., "Free speech in the United States,"
(1941).......................................................................29

S. Craig, "How America Adopted Radio:
Demographic Differences in Set Ownership
reported in 1930-1950 U.S. Censuses,"
J. Broadcast Electron Media (June 2004)..............32

M.J. Frank, "The social context variable in
hostile environment litigation,"
77 Notre Dame L. Rev. 437 (2002) .........................14

B.S. Kaye & B.S. Saplosky, "Offensive language
in prime-time TV: Four years after TV age
& content ratings," J Broadcast Electron
Media, (12/04) .........................................................19

D. Kunkel, et al., "Sexual messages on family
hour TV," Kaiser Family Fdn. (12/11/96)...............18

R. Peters, "Once Again, U.S. Supreme Court
thinks it knows better than Congress,"
10 Nexus J. Op. 5 (2005).........................................32




v


M. Rivera Sanchez "The origins of the ban on
obscene, indecent or profane language of the
Radio Act of 1927," Journalism
Monographs 149 (Feb. 1995).............................26, 27

E. Volokh, "What speech does `hostile work
environment' harassment law restrict?"
85 Geo L.J. 627 (1997). ...........................................12

12 Am. Jur. 2d Blasphemy and Profanity 10 .......29

Model Penal Code (Proposed Official Draft 1962). ....30

Release, "Sexual scenes on TV nearly doubled
since 1998," Kaiser Family Fdn. (11/9/05).......19, 20

Release, "PTC finds increase in harsh profanity
on TV," Parents TV Council (10/29/08) ..................30

Special Report, "The Ratings Sham II: TV
executives still hiding behind a system that
doesn't work," Parents TV Council (4/16/07) .........33

"This Day in History (Automotive: Sept. 26, 1928:
First day of work at the Galvin Manufacturing
Corporation)," available at www.history.com........32

"Revised Sexual Harassment Guidance," U.S. Dept.
of Ed. (Office for Civil Rights) (1/19/01), available at
http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf...15

"Understanding workplace harassment
(FCC Staff): Workplace harassment is a form
of discrimination," available at www.fcc.gov .........13




vi


"What the American public thinks about sex,
vulgarity & violence on TV," Morality in Media,
2011, available at www.moralityinmedia.org........18

NEWS ARTICLES

S. Gordon, "Parents find media rating systems
inadequate," HealthDay News (6/21/11)................33

M. Greppi, "NBC executives defend their
program ways," N.Y. Post (7/17/89) .......................20

David Hinckley ("Potty-mouths filling the air,"
N.Y. Daily News (5/2/03) ........................................24

P. Kloer, "It's 8 p.m. Do you know what your kids
are watching?" Atlanta Jrnl.-Const. (10/23/95) .....17

L. Rice, "Kristen Chenoweth joins `Good Christian'
pilot at ABC," www.insidetv.ew.com .....................28

A. Sepinwall, "Farewell to NYPD Blue: Best
Moments Ever," available at
www.stwing.upenn.edu/~sepinwal/bestmoments.htm ........24

J. Zaslow, "Straight Talk" ("Kim Delaney stars
in one of TV's most risqu dramas, NYPD Blue.
But she's horrified that young fans tune in"),
USA Weekend Magazine (2/20-22/98)....................21

"Context matters...," Association of National
Advertisers Alliance for Family Entertainment
(8/5/11), available at http://www.ana.net/afe.........21





vii


"Television networks censured for `censor'
cutbacks," Broadcasting (9/19/88) ..........................17

Viewpoint, "Hold the line in prime time,"
Electronic Media, 2/24/92........................................25



viii


INTEREST OF AMICUS CURIAE1

Morality in Media, Inc. ("MIM") as amicus
curiae, files this brief in support of the Petitioner in
this case, which is before this Honorable Court on
the merits under the provisions of Rule 37.


MIM is a New York nonprofit corporation
organized in 1962 for the purpose of combating the
distribution of obscene material in the United
States and upholding decency standards in the
media. MIM has an interest in this case because it
is concerned about the breakdown of standards of
decency in the mainstream entertainment media
and because this case will in significant measure
determine whether or how the FCC goes about
regulating broadcast indecency.

MIM has filed friend of the court briefs in
this Court involving various First Amendment
issues, including: FCC v. Fox TV Stations, 129 S.
Ct. 1800 (2009) and FCC v. Pacifica Foundation,
438 U.S. 726 (1978); and in New York v. Ferber,
458 U.S. 747 (1982); Brockett v. Spokane Arcades,
Inc., 472 U.S. 491 (1985); Fort Wayne Books, Inc. v.
Indiana, 489 U.S. 46 (1989); Sable Communications
v. FCC, 492 U.S. 115 (1989); Denver Area
Consortium v. FCC, 518 U.S. 727 (1996); Reno v.
ACLU, 521 U.S. 844 (1997); National Endowment

1 The parties have consented to the filing of this brief. No
counsel for a party authored this brief in whole or in part, and
no counsel or party made a monetary contribution intended to
fund the preparation or submission of this brief. No person
other than the Amicus has made a monetary contribution to
the preparation or submission of this brief.



1


for the Arts v. Finley, 524 U.S. 569 (1998); City of
Erie v. Pap's A.M., 529 U.S. 277 (2000); U.S. v.
Playboy, 529 U.S. 803 (2000); City News and
Novelty, Inc. v. City of Waukesha, 531 U.S. 278
(2001); Ashcroft v. Free Speech Coalition, 535 U.S.
234 (2002); City of L.A. v. Alameda Books, Inc. and
Highland Books, Inc., 535 U.S. 425 (2002); Ashcroft
v. American Civil Liberties Union, 535 U.S. 564
(2002) and 542 U.S. 656 (2004); and U.S. v.
Williams, 553 U.S. 285 (2008).

Amicus is filing this brief in support of the
Petitioner because we believe our brief contains
relevant matter and alternative arguments that
should be heard and may not be presented to the
Court by the parties.

SUMMARY OF ARGUMENT


When Congress enacted the Radio Act of
1927 and the Communications Act of 1934, it did
not define "indecent." Broadcasters were presumed
to know what is meant by "decency." In response to
Court decisions, the FCC later defined "indecent,"
clarified the definition and provided a "safe harbor"
for indecency. Courts have repeatedly held that the
FCC definition (also used in other laws) is not
unconstitutionally vague. That possible stiff fines
for violations of the law may deter some lawful
conduct is not a reason to invalidate it.


If the inability to define indecent with
"ultimate, god-like precision" means that the FCC
can no longer regulate indecency, then depictions of
"hard-core" sexual conduct can be shown on



2


broadcast TV because not all depictions of "hard-
core" sex are obscene under the Miller test.

If
precision is constitutionally required with
respect to enforcement of the broadcast indecency
law, it should also be required with respect to
claims of sexual harassment involving a "hostile
work environment." The latter concept is anything
but precise; but employers, including broadcasters,
must still determining what is or isn't acceptable
workplace behavior. Broadcasters should also be
responsible for determining what is "indecent."


Despite their protestations, the problem is
not that the broadcast TV networks can no longer
discern contemporary community standards. The
problem is that they long ago stopped caring much
about these standards. Decades ago, the networks
adhered to a voluntary industry code that reflected
community standards. Later, they had standards
departments that kept programming somewhat in
check. Today, they push the envelope and then
complain they don't know whether the FCC will
deem this or that violation of community standards
actionable. If the networks were genuinely
concerned about standards, there are steps they
can now take to remedy the current situation.


Serious value is an important variable that
the FCC considers when determining whether
content violates the indecency law. It has rightly
rejected the notion that if a work has merit, it is
per se not indecent. If a broadcaster disagrees with
an FCC ruling involving content with alleged
"serious value," the appropriate remedy would be to



3


appeal that determination. The Supreme Court has
stated that a determination about serious value is
"particularly amenable to appellate review."


When Congress enacted the Radio Act of
1927, it did not give broadcasters a right to use the
public airwaves to curse at least once. Perhaps it
would be unwise to roll back the clock and to insist
that when Congress said "any obscene, indecent or
profane language," it meant what it said. It would
also be unwise to determine that broadcasters have
a right to utter at least one expletive, regardless of
circumstances. There is a "middle road" between
prohibiting all expletives and allowing at least one
namely, when utterance of one or more expletives
amounts to a nuisance, it is actionable.


The Court below questioned whether the
broadcast media are still "uniquely pervasive and
uniquely accessible to children" and indicated that
"strict scrutiny" should apply when evaluating
challenges to the indecency law. Amicus contends
that it was not broadcasting's "uniqueness" per se
that justified its special treatment in 1978 but
rather that unlike any other form of media then in
existence, broadcasting had become pervasive and
readily accessible to children. It is still pervasive
and readily accessible to children and government
still has a necessary protective role to play.









4


ARGUMENT

I.
THE FCC'S BROADCAST INDECENCY
ENFORCEMENT POLICY IS NOT
UNCONSTITUTIONALLY VAGUE

In an early obscenity case, Rosen v. United
States, 161 U.S. 29, 42 (1896), Petitioner asked the
trial court to instruct the jury that he should be
acquitted if he entertained a reasonable doubt
about whether the publication referred to in the
indictment was obscene, to which the Supreme
Court replied, in part:
Everyone who uses the mails of the United
States for carrying...publications must take
notice of what, in this enlightened age, is
meant by decency... in social life, and what
must be deemed obscene... [Italics added]

When Congress enacted the Radio Act of
1927 and the Communications Act of 1934, it
apparently thought that broadcasters must also
"take notice of what is...meant by decency," because
while both Acts included a provision making it
unlawful to "utter any obscene, indecent, or profane
language by means of radio," neither Act defined
the term "indecent." Nor did Congress define
"indecent" when it enacted 18 USC 1464, making it
a crime to broadcast "indecent" language.

As this Court observed in Bethel School
District v. Fraser, 478 U.S. 675, 681-682 (1986),
there is also a prohibition on use of "indecent
language" in the House of Representatives, "where



5


some of the most vigorous political debates in our
society are carried on." This prohibition remains in
effect; and until this day the House has not felt
constrained to provide a definition of "indecent."


Nevertheless, Nicholas Johnson, dissenting
in Eastern Educ. Radio (WUHY-FM), 24 FCC 2d
408, at 422, 424 (1970), criticized the FCC for
ignoring: "decades of First Amendment law
carefully fashioned by the Supreme Court into the
recognized concepts of `vagueness'...I believe it is
our responsibility to adopt precise...guidelines...to
follow in this murky area." [Italics added]

In
Citizen's Complaint Against Pacifica
Foundation Station WBAI, 56 FCC 2d 94, 99
(1975), the FCC acted to "clarify the standards
which the Commission utilizes to judge indecent
language," stating in part (at 98):

[T]he concept of `indecent' is intimately
connected with the exposure of children to
language that describes, in terms patently
offense as measured by contemporary
community standards for the broadcast
medium, sexual or excretory activities and
organs, at times of the day when there is a
reasonable risk that children may be in the
audience... When the number of children in
the audience is reduced to a minimum...a
different standard might...be used. The
definition...would remain the same...
However, we would also consider whether
the material has serious...value...




6


In
FCC v. Pacifica, 438 U.S. 726, 731 (1978),
this Court did not address the contention made in
the lower court that 18 USC 1464 is vague but did
observe that the FCC intended to "clarify the
standards'' it utilized in considering complaints
about indecent speech on the airwaves.


In
In re Infinity Broadcasting Corp. of Pa., 3
FCC Rcd. 930, at 931-932 (1987), the FCC provided
further clarification of its indecency definition:

"Patently offensive" is a phrase that must, of
necessity, be construed with reference to
specific facts. We cannot and will not
attempt to provide petitioners with
comprehensive index or thesaurus of
indecent words or pictorial depictions that
will be considered patently offensive... We
note...that the phrase "patently offensive" is
also used in the obscenity context and that
the courts insist on construing that phrase
with reference to specific facts...The fact that
its meaning can only be given greater
specificity on a case-by-case basis does not
make the term "patently offensive"
unconstitutionally vague in the indecency
context any more than it does in the
obscenity context...Broadcasters may not
reasonably expect to relieve themselves of
this legal obligation by demanding that we
exercise their editorial judgment for them.


In concluding that the obscenity test was not
unconstitutionally vague, the Court in Miller v.
California, 413 U.S. 15, 27 (1973) stated in part:



7


If the inability to define regulated materials
with ultimate, god-like precision altogether
removes the power...to regulate, then "hard
core" pornography may be exposed without
limit to the juvenile, the passerby...2


The Miller Court also stated (id., at 26, n.9):
"The mere fact juries may reach different
conclusions as to the same material does not mean
that constitutional rights are abridged..."

In
Action for Children's TV v. FCC, 58 F.3d
654, 659 (D.C. Cir. 1995), cert. den., 516 U.S. 1043
(1996), the D.C. Circuit stated:

[W]e dismiss petitioners' vagueness
challenge as meritless. The FCC's definition
of indecency in the new regulations is
identical to the one at issue in ACT II, where
we stated that "the Supreme Court's decision
in Pacifica dispelled any vagueness concerns
attending the [Commission's] definition" as
did our holding in ACT I... Petitioners fail to
provide any convincing reasons why we
should ignore this precedent.

In
Dial Inform. Services v. Thornburgh, 938
F.2d 1535, 1540 (2nd Cir. 1991), cert. den., 502 U.S.

2 And if the FCC's inability to define indecent with "ultimate,
god-like precision" means that it can no longer regulate
broadcast indecency, then "hard-core" sexual conduct can also
be shown on broadcast TV during the family hour because not
all depictions of "hard-core" sexual conduct are obscene under
the three part Miller obscenity test.




8


1072 (1992), the 2nd Circuit held that "indecent" as
used in 47 USC 223(b)(2) had been "defined clearly"
by the FCC and was not unconstitutionally vague.


In Denver Area Educational Telecomm.
Consortium v. FCC, 518 U.S. 727 (1996), this Court
also rejected a vagueness challenge to 47 USC
532(h), which includes language patterned after the
FCC's definition of "indecent" for broadcasting.


Respondent Fox TV Stations states (Brief in
Opposition, at 7) that in Reno v. ACLU, 521 U.S.
844 (1997) "this Court confronted a vagueness
challenge to a prohibition substantially identical to
the FCC's generic definition of indecency" and
affirmed the judgment that the prohibition was
"unconstitutionally vague." The Reno Court,
however, also stated the following:

[T]he Government argues that the District
Court erred in holding that the CDA violated
both the First Amendment because it is
overbroad and the Fifth Amendment because
it is vague. While we discuss the vagueness
of the CDA because of its relevance to the
First Amendment overbreadth inquiry, we
conclude that the judgment should be
affirmed without reaching the Fifth
Amendment issue. [Id., at 864]

[T]he CDA is a criminal statute...[T]his
increased deterrent effect, coupled with the
"risk of discriminatory enforcement" of vague
regulations, poses greater First Amendment
concerns than those implicated by the civil



9


regulation reviewed in Denver Area Ed.
Telecomm. Consortium... [Id., at 871-872])


In
Village of Hoffman Estates v. The
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498-
499 (1982), the Court also stated:

The degree of vagueness that the
Constitution tolerates...depends in part on
the nature of the enactment...Indeed, the
regulated enterprise may have the ability to
clarify the meaning of the regulation
by...resort to an administrative process...3

Following
Reno, the FCC also issued a Policy
Statement to provide licensees with "guidance"
regarding its case law and enforcement policies
with respect to broadcast indecency.4 While there
are significant differences between the three
"principal factors"5 set forth in the Policy
Statement and the three prongs of the Miller v.
California obscenity test,6 there are also parallels.
The first factor is similar to the "patently offensive
sexual conduct" prong of the Miller test; the second

3 See, e.g., Citizen's complaint against Pacifica Foundation
Station, 56 FCC 2d, at 99 ("There are several reasons why we
are issuing a declaratory order... A declaratory order is a
flexible procedural device admirably suited to...clarify the
standards which the Commission utilizes to judge `indecent
language.' If not satisfied by the Commission's action on
reconsideration, judicial review may be sought...").
4 Industry Guidance on the Commission's Case Law
Interpreting 18 U.S.C. 1464 & Enforcement Policies
Regarding Broadcast Indecency, 16 FCC Rcd. 7999 (2001).
5 Id., at 8003.
6 Miller, 413 U.S. at 24.



10


factor is similar to the "appeal to the prurient
interest" prong of the Miller test; the third factor is
similar to the "lacking in serious value" prong of
the Miller test. To some extent, therefore, these
"principal factors" alleviate vagueness concerns
expressed in Reno (521 U.S. at 872-873):

The Government argues that the statute is
no more vague than the obscenity standard
this Court established in Miller v.
California... The Government's reasoning is
also flawed. Just because a definition
including three limitations is not vague, it
does not follow that one of those limitations,
standing by itself, is not vague...Each of
Miller's additional two prongs...limits the
uncertain sweep of the obscenity definition.

Furthermore, unlike the law in Reno, the
broadcast indecency law has since 1988 provided
broadcasters with a "safe harbor" for indecency. In
Action for Children's TV v. FCC, 852 F.2d 1332,
1342-1343 (1988), the D.C. Circuit concluded:

Facing the uncertainty generated by a less
than precise definition of indecency plus the
lack of a safe harbor for the broadcast of
(possibly) indecent material, broadcasters
surely would be more likely to avoid such
programming altogether...We conclude that...
the FCC must afford...notice of reasonably
determined times at which indecent
material...may be aired. [Italics added]





11



A "safe harbor" from 10 p.m. to 6 a.m. has
been in place since 1995, and had ABC aired the
NYPD Blue episode at issue at 10 p.m. in all time
zones, it would not have been fined. Fox also could
have delayed airing the "Billboard Music Awards"
program until 10 p.m. in all time zones.


Respondent ABC, Inc. (Brief in Opposition,
at 15), states that the 2nd Circuit's "conclusion"
about vagueness is "confirmed by the clear chilling
effect" the FCC's policy has on "constitutionally
protected expression," an effect that is "magnified"
by fact that the FCC can now impose a much larger
fine for each violation of 18 USC. 1464.


Broadcasting, however, is now dominated by
media giants for whom the previous maximum fine
was a readily affordable cost of doing business.
Now, in an appropriate case, the FCC can levy a
much larger fine that will hopefully get the
attention of corporate executives. Furthermore,
that a potential stiff penalty for unlawful conduct
may deter some lawful conduct is not a reason to
invalidate the broadcast indecency law.7




7 Pacifica, 438 U.S., at 743 ("[T]he Commission's order may
lead some broadcasters to censor themselves. At most, however,
the...definition of indecency will deter only the broadcasting of patently
offensive references to excretory and sexual organs and activities.");
cf., Alexander v. U.S., 509 U.S. 544, 555-556 (1993)("applying
RICO's forfeiture provisions to businesses dealing in
expressive materials"); E. Volokh, "What speech does `hostile
work environment' harassment law restrict?" 85 Geo L.J. 627,
635-637 (1997)("Steering Wide of the Unlawful Zone").



12


II. IT ISN'T JUST BROADCASTERS WHO

MUST USE COMMONSENSE WHEN

ASSESSING OFFENSIVE REFERENCES

TO SEXUAL ORGANS & ACTIVITIES



The FCC is not only a regulator; it is also an
employer. Posted on its new www.fcc.gov website,
under the headline, "Understanding Workplace
Harassment (FCC Staff): Workplace Harassment is
a Form of Discrimination," we find the following:

Hostile work environment harassment...
[A]ctions that may create sexual hostile
environment harassment include:
Leering, i.e., staring in a sexually
suggestive manner
Making offensive remarks about looks,
clothing, body parts
Touching in a way that may make an
employee feel uncomfortable, such as
patting, pinching or intentional brushing
against another's body
Telling sexual or lewd jokes, hanging
sexual posters, making sexual gestures...
Sending, forwarding or soliciting sexually
suggestive letters, notes, emails or
images...
The anti-discrimination statutes are not a
general civility code...The...harassment...
[must be] sufficiently severe or pervasive to
create a hostile work environment...



13


If
precision is constitutionally required for
enforcement of the broadcast indecency law, it
should also be required with respect to claims of
sexual harassment involving a "hostile work
environment." If broadcasters are entitled to know
in advance precisely what is or isn't permitted,
then employers and employees are entitled know in
advance precisely what is or isn't permitted.


The First Amendment makes no distinction
between what ordinary citizens say and display in
a workplace and what broadcasters say and display
over the airwaves. And the "hostile work
environment" concept is anything but precise,8 as
the following commentary indicates:

M.J. Frank, "The social context variable in hostile
environment litigation," 77 Notre Dame L. Rev.
437, at 491, 494 (2002):

Since courts first construed Title VII as
outlawing harassment in the workplace,
judges and scholars have criticized the vague
standard for distinguishing between
unpleasant banter and a full-blown case of
harassment. One would think that, in time,
as the courts addressed more cases, they
would be able to discover some guiding
principles. But as yet, this has not proven
true...Anyone capable of reading the Federal

8 Harris v. Forklift Systems, 510 U.S 17, 22-23 (1993)("This is
not, and by its nature cannot be, a mathematically precise
test... [W]ether an environment is `hostile' or `abusive' can be
determined only by looking at all the circumstances.").




14


Reporter would have to agree with the
sentiments of one district court that
attempted to reconcile the conflicting
decisions: "The courts deciding summary
judgment motions have reached a broad
range of conclusions regarding what actions
actually constitute a hostile environment."
Put more bluntly, many decisions which
purport to apply the same standard for
defining a hostile environment are
inconsistent with one another...



It would be an anomaly indeed if offensive
references to sexual organs and activities uttered in
a workplace can be punished to protect adults, but
not if broadcast into millions of homes to protect
not only adults9 but also children. It would also be
an anomaly indeed if employers must assess the
sexual content of radio programs broadcast into the
workplace to determine whether they contribute to
or create a hostile work environment,10 but
broadcasters, have no responsibility to assess
whether the same content is indecent as broadcast.


The "hostile work environment" concept also
applies in schools, and on January 19, 2001, the
U.S. Department of Education (Office for Civil
Rights) issued a document entitled, "Revised

9 Pacifica, 438 U.S. at 748-749; id., at 755 (Powell, J.
concurring in Part IV-C of Mr. Justice Stevens' opinion).
10 See, Reeves v. C.H. Robinson Worldwide, 594 F.3d 798, 804
(11th Cir. 2010) ("Nearly every day, Reeves's co-workers tuned
the office radio to a crude morning show. Reeves claimed this
program featured...regular discussions of women's anatomy, a
graphic discussion of how women's nipples harden in the cold
and conversations about the size of women's breasts...").



15


Sexual Harassment Guidance." That document
reads in small part as follows:

OCR considers..."the constellation of
surrounding circumstances, expectations,
and relationships." Schools should also use
these factors to evaluate conduct in order to
draw commonsense distinctions between
conduct that constitutes sexual harassment
and conduct that does not... It is the totality
of the circumstances in which the behavior
occurs that is critical in determining whether
a hostile environment exists. [Italics added]



If schools and broadcasters too in their
capacity as employers11 must use "commonsense"
when determining what constitutes to a hostile
work environment, why must broadcasters be
treated as persons of "infirm mentality"12 when
determining what violates the indecency law?

III.

BROADCASTERS WHO HAVE IGNORED

CONCERNS ABOUT PROGRAMMING

SHOULD NOT BE HEARD TO COMPLAIN

ABOUT THE FCC'S INDECENCY POLICY


Despite their protestations, the problem is
not that the broadcast TV networks can no longer
discern contemporary community standards. The
problem is that they long ago stopped caring much
about these standards. More than two decades ago
the networks drastically downsized their standards

11 See, Lyle v. WB TV Productions, 132 P.3d 211 (Cal. 2006).
12 Rosenfeld v. New Jersey, 408 U.S. 901, at 907, n.1 (1972)
(Powell, J., dissenting).



16


departments;13 and after doing so programs became
more vulgar and sexual, as these studies show:

P. Kloer, "It's 8 p.m. Do you know what your kids
are watching?" Atlanta Journal-Const. (10/23/95):

Welcome to TV's family hour, 1995-style.
Topics include syphilis, menstruation,
condoms, prostitutes and pornography. And
those are the jokes. An erosion of standards
in recent years in the hour from 8 to 9 p.m.,
when many young children watch TV, has
become a mudslide this season..."[W]when
you cuss at somebody, it's a form of verbal
assault," says Barbara Kaye, assistant
professor of TV studies at Southern Illinois
University, who has tracked prime-time
profanity...Kaye's research found that use of

13 See, e.g., "Television networks censured for `censor'
cutbacks," Broadcasting, 9/19/88, where we read in part:
At one of the three broadcast networks, it is called
broadcast standards; at another, program practices;
and at a third, broadcast standards and
practices...Now, cuts at...ABC, CBS and NBC have
started rumblings on Madison Avenue...The
rumblings from the advertising community got louder
last week with news that two trade association
presidents...sent letters to the chief executive officers
of ABC, CBS and NBC. Both letters said that
cutbacks in standards and practices departments
were weakening the network's oversight of
commercial material and consequently would also
weaken the `self regulation' which they enjoyed...The
combined staff reductions...at the broadcast networks
have cut those departments by at least half...
Meanwhile, neither the number of programs nor
commercials aired is reduced...").



17


profanity on TV nearly doubled from 8 to 9
p.m. between 1990 and 1994 to an average
of once every eight minutes on ABC, CBS,
NBC and Fox. In addition, in 1990 profanity
was more prevalent from 10 to 11 p.m., but
by 1994, the earlier time slot had caught up.

D. Kunkel, et al., "Sexual messages on family hour
TV," Children Now & Kaiser Family Fdn. (12/11/96):

[T]he study assesses how messages about
sexuality in the "Family Hour" have changed
over time by comparing the winter of 1996
sample to a week of network programs that
were aired in 1976 and 1986...In 1996, 75%
of the programs included some type of sexual
content, compared to 65% in 1986 and 43%
in 1976...In 1976, only 9% of all programs
sampled contained any scene with a primary
emphasis on a sexual message; by 1986, 23%
of programs included such scenes; and in
1996, 30% of all "Family Hour" programs
featured [such] scenes... [pp. 4, 8]



For years now, the broadcast TV networks
have also ignored the many opinion polls14 showing
that most adults are concerned about and/or
offended by sexual and vulgar content on TV and
that they support enforcement of the broadcast
indecency law. Their response to these polls has

14 See, "What the American public thinks about sex, vulgarity
& violence on TV," Morality in Media, 2011, available at
http://www.moralityinmedia.org/full_article.php?article_no=255.




18


been to provide even more vulgar and sexual
content, as the following surveys show:

B.S. Kaye & B. S. Saplosky, "Offensive language in
prime-time TV: Four years after TV...ratings," J
Broadcast Electron, (Dec. 2004):

The broadcast industry claims that the
content- and aged-based ratings systems
adequately alert viewers to offensive content.
This study supports assertions that the
warning systems give further license to
broadcasters to include more profane TV
dialogue. The rate per hour of curse words
jumped by 51% to about one such word every
8 minutes in prime-time. Offensive language
on prime-time TV declined in 1997, but in
the 4 years between 1997, when the age- and
content-based alerts were first implemented,
and 2001, each category of swearing
increased. Mild-other words grew in
frequency by 44% and excretory words
spiked 547%.

Release, "Number of sexual scenes on TV nearly
doubled since 1998," Kaiser Family Fdn. (11/9/05):

The number of sexual scenes on TV has
nearly doubled since 1998, according to Sex
on TV 4, a biennial study released today by
the Kaiser Family Foundation...The study
examined a representative sample of more
than 1,000 hours of programming...All sexual
content was measured, including talk about
sex and sexual behavior. The study found



19


that 70% of all shows include some sexual
content, and that these shows average 5.0
sexual scenes per hour, compared to 56% and
3.2 scenes per hour respectively in 1998, and
64% and 4.4 scenes per hour in 2002. These
increases combined represent nearly twice as
many scenes of sexual content on TV since
1998 (going from 1,930 to 3,780 scenes in the
program sample totaling a 96% increase
between 1998 and 2005)... During prime time
hours sex is even more common with nearly
8 in 10 shows including sexual content,
averaging 5.9 sexual scenes per hour.15



Decades ago, the TV networks adhered to a
voluntary industry code that reflected community
standards. They later had "standards departments"
that kept programming somewhat in check. Today,
the networks push the envelope and then complain
they don't know whether the FCC will deem this or
that violation of community standards actionable.


If the networks were genuinely concerned
about community standards, they would revitalize
their standards departments, pay attention to
studies and surveys conducted by others, and if
needed, conduct their own.16 They would also

15 The Findings section of the Sex on TV 4 Report states at
page 46 that network prime time shows presented sexual
content "with somewhat greater frequency than the levels
found across the television landscape overall."
16 M. Greppi, "NBC executives defend their program ways,"
N.Y. Post (7/17/89) ("Tartikoff said NBC is spending more
than $100,000 on a study designed to see if the public's taste
has... taken a conservative swing...").



20


listen to mainstream advertisers who don't want to
offend viewers with programming they sponsor.17



They would also (gasp) exercise common
sense, because even assuming that adults have
become as jaded as the TV networks apparently
think, much of their audience consists of children.18
And here, not just Fox but also ABC had reason to
know children would be in the viewing audience.
See, e.g., J. Zaslow, "Straight Talk" ("Kim Delaney:
She stars in one of TV's most risqu dramas, NYPD
Blue. But she's horrified that young fans tune in"),
USA Weekend Magazine, 2/20-22/98:

Kim Delaney is disturbed when kids
recognize her as a star of NYPD Blue. Given
its raw language, gruesome crimes and
explicit love scenes, Delaney says the police
drama unquestionably deserves its...TV-14
rating...Recently, when Delaney volunteered
to help serve meals to the needy in Los
Angeles, "all these little kids were saying
they watched the show. I said, `What are you
doing up [at 10 p.m.]? You're not supposed to
know who I am!' They just shrugged."

17 See, e.g., "Context matters...," Assoc. of Ntl. Advertisers
Alliance for Family Entertainment, 8/5/11, available at
http://www.ana.net/afe ("[A] group of leading national
advertisers...is working hard to provide consumers with
entertainment options the entire family can watch without
anyone being embarrassed or grabbing for the remote...").
18 Unlike in the obscenity law area, where a jury ordinarily
does not consider children when determining "community
standards" (Pinkus v. U.S., 436 U.S. 293, 298 (1978)), the
FCC properly considers children when determining whether
broadcast content is "patently offensive."



21


IV.
FCC'S CURRENT POLICY ON CONTENT

WITH `SERIOUS VALUE' DOES NOT
VIOLATE
THE
FIRST
AMENDMENT


For decades the FCC has assessed the
"value" or "merit" of programming when making
determinations about broadcast indecency;19 and in
Action for Children's TV, 852 F.2d at 1340, the D.C.
Circuit held that while "merit is properly treated as
a factor in determining whether content is patently
offensive...it does not render such material per se
not indecent." Were it not so, broadcasters could
air content that appealed to the prurient interest
and depicted hardcore sexual conduct, as long as
the content, when taken as a whole, had serious
value and was therefore not obscene.


Respondent ABC, Inc. nevertheless questions
the FCC's ability to "rest indecency determinations
on its own artistic judgments." Brief in Opposition,
at 13-14. If jurors in obscenity cases are deemed
capable of assessing "serious value,"20 however,
surely FCC Commissioners can also make such
determinations. Furthermore, the FCC is not the
only federal agency that must balance artistic value
with decency concerns. The National Endowment
for the Arts must make similar determinations.21

19 See, e.g., Eastern Educ. Radio, 24 FCC 2d, at 412 (the term
"indecent" is applicable and the standard for its applicability
is that "the material broadcast is (a) patently offensive...and
(b) is utterly without redeeming social value.").
20 See, Pope v. Illinois, 481 U.S. 497 (1987); Hamling v. U.S,
418 U.S. 87, 100 (1974)("Expert testimony is not necessary to
enable the jury to judge the obscenity of material...").
21 NEA v. Finley, 524 U.S. 569 (1998); see also Advocates for
the Arts v. Thomson, 532 F.2d 792, 796-797 (1st Cir. 1976).



22



If ABC disagrees with an FCC ruling
involving content with alleged "merit" or "serious
value," the appropriate remedy would be to appeal
that determination. As this Court stated in Smith
v. United States, 431 U.S. 291, 305 (1977), a
determination about serious value is "particularly
amenable to appellate review."




Respondent ABC, Inc. also criticizes the FCC
for differentiating between the routine vulgarities
heard weekly on its NYPD Blue program with the
intense vulgarity heard in an early scene of Saving
Private Ryan. Brief in Opposition, at 13.


Amicus did not agree with the FCC's
determination that the broadcast of an unedited
version of Private Ryan during primetime hours did
not violate the indecency law. Little would have
been lost by bleeping the vulgarity,22 but much
would have been gained in terms of maintaining a
decent society and shielding children too young to
understand the reason for the cursing.


But
Amicus does not doubt that Steven
Spielberg's purpose in airing intense vulgarity in
an early scene of Private Ryan was laudable
namely, to depict the reality and horror of war.
Had an NYPD Blue episode depicted a horrifically
violent scene where cursing took place, the FCC
may have treated the episode as it treated Private
Ryan. But the cursing in NYPD Blue was of a

22 Pacifica, 438 U.S. at 743, n.18 ("A requirement that
indecent language be avoided will have its primary effect on
the form rather than the content of serious communication...")




23


different kind, as the following commentary by
David Hinckley ("Potty-mouths filling the air,"
Daily News, 5/2/03) shows:

Feeling empty because with the Super
Bowl...over, there are no office pools? Here's
a suggestion: Guess which NYPD Blue
character will say the S-word this week. It's
a lock to happen. Every new episode of the
long-running ABC series, you can absolutely
count on it, usually right around 10:30. The
S-word is such a regular character, you half-
expect to see it get a screen credit...For
NYPD Blue viewers...the S-word isn't a big
leap. Ten years ago, "ah" was unheard on
prime-time TV. Now, thanks largely to
[NYPD Blue], it's as common as lottery ads...



ABC, Inc. has also criticized the FCC for
differentiating between the gratuitous nudity
depicted in the NYPD Blue scene at issue here with
the disturbing nudity depicted in Schindler's List.
Brief for Petitioners, at 22, 24, 27-28. Former
Newark Star-Ledger TV critic Alan Sepinwall
described that NYPD Blue scene as follows in his
"Farewell to NYPD Blue: Best Moments Ever:"23

And here's to you, Mrs. Sipowicz (in "Nude
Awakening"): I didn't have room to mention
it in the Best Nude Scenes list for The Star-
Ledger, so I'll slip it in here: Theo walking in
on a stark-naked Connie in the Sipowicz
family bathroom was arguably the show's

23 Available at
www.stwing.upenn.edu/~sepinwal/bestmoments.htm.



24


most explicit nude scene (even with her
hands trying to cover the naughty bits, I
think we saw more of Charlotte than we ever
saw of Kim or Amy or anyone else)...



Amicus did not agree with the FCC's
determination that the broadcast of an unedited
version of Schindler's List during primetime hours
did not violate the broadcast indecency law. Little
would have been lost by blurring the nudity,24 but
much would have been gained in terms of
maintaining a decent society for all Americans and
shielding children too young to comprehend the
"political message" behind the nudity.

But
Amicus does not doubt that Steven
Spielberg's purpose in showing nudity in
Schindler's List was laudable namely, to depict
the humiliation of forced nudity experienced by
those who suffered in Nazi concentration camps.
Had the camera lingered on a woman's private
parts in a titillating manner, the FCC might have
decided the matter differently.


When it comes to the matter of "serious
value" and NYPD Blue, an editorial in Electronic
Media25 made an important distinction when it said
this of NYPD Blue's co-creator Steven Bochco:
"What Mr. Bochco wants...is not simply the ability
to deal with adult issues, because he already has

24 City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000)("Being
`in a state of nudity' is not an inherently expressive
condition").
25 Viewpoint, "Hold the line in prime time," 2/24/92.



25


that. What he wants is the license to include bare-
breasted women and explicit language..."




Amicus would add that in an FCC case
where the program involved a serious presentation
about sex, in contrast to vulgar, titillating or
pandering references to or depictions of sex, the
FCC determined that the content was not indecent.
See, Industry Guidance, 16 FCC Rcd, at 8011 ("KING-
TV, Seattle, "Teen Sex: What about the kids?").

V.
THE FCC'S CURRENT POLICY ON

`FLEETING EXPLETIVES' DOES NOT
VIOLATE
THE
FIRST
AMENDMENT

When Congress enacted the Radio Act of
1927, Congress did not give broadcasters a right to
use the public airwaves to curse or swear at least
once in each program (or however often). That Act
included a provision making it unlawful to "utter
any obscene, indecent, or profane language by
means of radio communications." [Italics added]

While little is known about what prompted
regulation of obscene, indecent or profane language
in broadcasting, it is highly unlikely that it was the
airing of something comparable to the George
Carlin "Seven Dirty Words" monologue. In her
monograph, "The origins of the ban on obscene,
indecent or profane language of the Radio Act of
1927,"26 Milagros Rivera Sanchez stated:

The earliest complaint dates back to March

26 Journalism Comm Monogr 149, February 1995.



26


1920. The Radio inspector S.W. Edwards
asked the Commissioner of Navigation A.J.
Tyrer if the amateur license of E.
Ferguson...should be suspended for three
months. Ferguson admitted telling another
amateur to "go to hell over the air." [At 7-8]


Ms. Rivera Sanchez also observed:

The Congressional records and debates do
not provide any evidence that members of
Congress were concerned about the First
Amendment implications of banning the use
of obscene, indecent or profane language
from the airwaves...The fact that there was
little discussion...is perhaps an indication
that at least some free speech advocates did
not consider offensive language deserving of
First Amendment protection. [At 21]

There is another explanation for the lack of
discussion, other than the thinking that such
speech was not "deserving" of protection namely,
that Members of Congress and just about everyone
else back then understood that the "main purpose"
of the First Amendment's freedom of speech and of
the press provisions was "`to prevent all such
previous restraints upon publications'" and not to
"prevent the subsequent punishment of such as
may be deemed contrary to the public welfare."
Near v. Minnesota, 283 U.S. 697, 714 (1931).27


When the Court said "the prevention and

27 See also, Pacifica, 438 U.S. at 735-738.



27


punishment" of the "lewd and obscene, the profane"
had never been thought to raise a "Constitutional
problem,"28 they would have also understood that
those terms encompassed indecent language.29


Perhaps it would be unwise to roll back the
clock and to now insist that when Congress said
"any obscene, indecent or profane language," it
meant what it said. Amicus contends, however,
that it would be very unwise to now determine that
broadcasters have a right to utter at least one
expletive, regardless of circumstances.

The
2nd Circuit said the FCC had little to
fear if broadcasters were given a right to curse at
least once. Fox TV Stations v. FCC, 489 F.3d 444,
460 (2d Cir. 2007). But the broadcast TV networks
say they must compete with cable, and on some
cable channels indecency is rampant. Last year
CBS launched a new series, $#*! My Dad Says; and
earlier this year it was reported that ABC planned
to air a pilot, Good Christian Bs.30 Furthermore,
they cannot predict in live programming what a
celebrity will say; and the problem isn't limited to
TV. It includes broadcast radio "shock jocks."

28 Chaplinsky v. N.H., 315 U.S. 568, 571-572 (1942).
29 Rosenfeld v. New Jersey, 408 U.S. 901, 911 (1973)
(Rehnquist, J., dissenting) (use of the f word is "`lewd and
obscene' and `profane' as those terms are used in Chaplinsky
v. New Hampshire... the leading case in the field"); see also,
Bethel School District, 478 U.S. at 678, where a prohibition
on "use of obscene, profane language" was applied to a
student speech that was deemed "indecent, lewd..."
30 L. Rice, "Kristen Chenoweth joins `Good Christian' pilot at
ABC," www.insidetv.ew.com, 3/14/11.



28



Amicus would contend that there is a
constitutional "middle road" between prohibiting
all expletives and allowing at least one namely,
when utterance of one or more expletives amounts
to a nuisance, it is actionable. In Chaplinsky, 315
U.S. at 571-572, n.4-5, this Court twice cited Free
Speech in the United States, by Zechariah Chafee,
Jr. (1941) where Chafee stated in part, at 149-150:

But the law punishes a few classes of words
like obscenity, profanity...[P]roperly limited
they fall outside the protection of the free
speech clauses...[P]rofanity, indecent talk
and pictures...have a very slight social value
as a step towards truth, which
is...outweighed by the social interest in
order, morality, the training of the young
and the peace of mind of those who hear and
see... The man who swears in a street car is
as much of a nuisance as the man who
smokes there. [Italics added]

In 12 Am. Jur. 2d Blasphemy and Profanity 10 ("As
common-law nuisance"), we also find the following:

In view of the requirement of a public
nuisance, a single act of profane swearing is
generally insufficient as a basis of the offense
under the common law, although it is
conceivable that under particular
circumstances even a single oath may
amount to such a nuisance. The use of
profane and vulgar words in a public place
on a single occasion, whereby the public at
large was offended and annoyed, may



29


amount to a public nuisance rendering
profanity punishable under the common law.

The Pacifica Court recognized that indecent
language could amount to a "nuisance" and upheld
the FCC's authority to regulate indecent language
when it does.31 While Pacifica emphasized the
"narrowness" of its holding, it did not hold that a
single expletive could never be actionable.32 For
one thing, unlike the indecent language that has
proliferated on primetime TV,33 the George Carlin
monologue was an aberration.34 For another,
unlike an annual media awards program airing on
a major broadcast TV network, the one-time airing

31 438 U.S. at 750; id., at 761 (Powell, J., concurring in Part
IV-C of Justice Stevens' opinion); see also, See also, Rosenfeld
v. New Jersey, 408 U.S. 901, 906 (1972)(Powell, J.,
dissenting)("The Model Penal Code...also recognizes a
distinction between utterances which may threaten physical
violence and those which may amount to a public nuisance,
recognizing that neither category falls within the protection of
the First Amendment.").
32 438 U.S. at 750 ("This case does not involve a two-way radio
conversation...or a telecast of an Elizabethan comedy. We
have not decided that an occasional expletive in either setting
would justify any sanction..."); Id., at 755 (Powell, J.
concurring in Part IV-C of Mr. Justice Stevens' opinion).
33 See, e.g., Release, "PTC finds increase in harsh profanity on
TV," Parents Television Council, 10/29/08 ("[N]early 11,000
expletives...were aired during primetime on broadcast TV in
2007 nearly twice as many as in 1998...The f-word aired
only once on primetime...in all of 1998 yet it appeared 1,147
times on primetime...in 2007...The s-word, which appeared
only two times in 1998, aired 364 times in 2007...").
34 Fox TV Stations, 489 F.3d at 449, n.4 ("At the time, the
FCC interpreted Pacifica as involving a situation `about as
likely to occur again as Haley's Comet.'").



30


of the Carlin monologue on a radio station wasn't
likely to attract a large audience of children.



Nor did the Court in Hess v. Indiana, 414
U.S. 105, 108 (1973), hold that the speech at issue
was protected by the First Amendment because the
f-word was uttered only once. The Hess Court said
there was no evidence to indicate that defendant's
"speech amounted to a public nuisance in that
privacy interests were being invaded."

In
Torres v. Pisano, 116 F.3d 625, 631 n.4
(1997), cert. den., 522 U.S. 997 (1997), the Court
below also recognized that "a single episode of
harassment, if severe enough, can establish a
hostile work environment."35

VI. STRICT SCRUTINY' IS NOT THE

APPROPRIATE STANDARD FOR REVIEW

OF BROADCAST REGULATION


In
Fox TV Stations, 489 F.3d at 465, the
Court below said it is "increasingly difficult to
describe the broadcast media as uniquely pervasive
and uniquely accessible to children" and that the
TV networks "rightly rest their constitutional
arguments in part" on United States v. Playboy,
529 U.S. 803 (2000), where this Court applied

35 See also, Suders v. Easton, 325 F.3d 432, 444, n.7 (3rd Cir.
2003), rev'd on other grounds, Penn. State Police v. Suders,
542 U.S. 129 (2004)("`we cannot state...that a single non-
trivial incident of discrimination can never be egregious
enough to compel a reasonable person to resign...'").



31


"strict scrutiny" to a needed law36 that would have
required cable operators to completely scramble the
signals for pay porn channels or air the imperfectly
scrambled signals only after 10 p.m.


When Congress enacted the Radio Act of
1927, however, radio had not established a
"uniquely pervasive presence in the lives of all
Americans."37 By 1930, only 40% of U.S.
households had purchased radio receivers;38 and
car radios weren't mass produced until after 1927.39

Amicus would also contend that in 1978 it
was not broadcasting's "uniqueness" per se that
justified its special treatment but rather that
broadcasting had in fact become pervasive and
readily accessible to children, unlike any other form
of media in existence. By 1978, TVs were in almost
every home, and radios were in almost every home
and car.40 Children could also carry portable radios
by hand; and unlike newspapers, broadcasting was
accessible to children too young to read.


36 See, R. Peters, "Once Again, U.S. Supreme Court thinks It
knows better than Congress," 10 Nexus J. Op. 5, 9-13 (2005).
37 Pacifica, 438 U.S. at 748.
38 Steve Craig, "How America adopted radio: Demographic
differences in set ownership...in 1930-1950 U.S. Censuses." J
Broadcast Electron
, Vol. 48, No. 2, 2004.
39 See, e.g., "This Day in HISTORY (Automotive: September
26, 1928: First day of work at the Galvin Manufacturing
Corp.)," www.history.com ("...In 1930, Galvin would introduce
the...the first mass-produced commercial car radio.").
40 The complainant in Pacifica, 438 U.S., at 730, "heard the
broadcast while driving with his young son."



32



Today, if anything, broadcasting is even
more pervasive41 and remains readily accessible to
children. Televisions made before 2000 or with
monitors less than 13 inches are not equipped with
a V-Chip. The V-Chip also does not block network
promos, sponsor ads, sports and "news" programs.
Nor does it block any broadcast radio programs.



The V-Chip is also only as good as the rating
system it utilizes; and many programs aren't
properly rated.42 Many parents also find the
ratings inadequate for other reasons.43 In addition,
the only way to block a particular program is to
block all programs rated the same. Since almost all
primetime entertainment programs are rated TV-
PG or TV-14, using the V-Chip to block just a few
programs can result in blocking most programs.


Many children also grow up in homes with
parents who don't speak English fluently or who
are illiterate or disabled. Some parents don't use
the V-Chip because they find it is difficult to use or
because of unawareness, fatigue, indifference or
neglect. Even if parents use the V-Chip, children
will often have access to TVs outside the home.


In
Ginsberg v. N.Y., 390 U.S. 629, at 639-640
(1968), the Court stated that two governmental
interests justified the law's limitations upon the
availability of sex materials to minors:

41 Programming is now re-broadcast on cable, satellite and the Internet.
42 Special Report, "The Ratings Sham II: TV executives still
hiding behind a system that doesn't work," PTC, 4/16/07.
43 S. Gordon, "Parents find media rating systems inadequate,"
HealthDay News, 6/21/11.



33


The well-being of its children is of course a
subject within the State's constitutional
power to regulate, and, in our view, two
interests justify the limitations...upon the
availability of sex material to minors...The
legislature could properly conclude that
parents...are entitled to the support of laws
designed to aid discharge of [their]
responsibility...The State also has an
independent interest in the well-being of its
youth... "[T]he knowledge that parental
control or guidance cannot always be
provided and society's transcendent interest
in protecting the welfare of children justify
reasonable regulation of..."


Few would disagree with the assertion that
parents should be the first line of defense when it
comes to protecting children; but when it comes to
shielding children from inappropriate mass media
content, even diligent parents often fail at the task.
Ratings and technology can certainly help but are
not the whole answer. Nor is government the
whole answer, but government has a necessary role
to play; and the warning enunciated in Columbia
Broadcasting v. Democratic National Committee,
412 U.S. 94, 102-103 (1973) is still relevant today:

Thus, in evaluating the First Amendment
claims of respondents, we must afford great
weight to the...experience of the Commission.
Professor Chafee aptly observed: "Once we
get away from the bare words of the [First]
Amendment, we must construe it as part of a
Constitution which creates a government for



34


the purpose of performing several very
important tasks. The [First] Amendment
should be interpreted so as not to cripple the
regular work of the government..."

Among
those
very important tasks are
maintaining a decent society,44 protecting the
privacy of the home,45 and protecting children.46
CONCLUSION
For all of the above reasons, your Amicus
prays that this Honorable Court reverse the
judgment of the court below and declare that the
FCC's current broadcast indecency enforcement
regime is constitutional.

Respectfully submitted,

Patrick A. Trueman
Counsel of Record
for Amicus Curiae

Robert W. Peters
Co-Counsel




44 Paris Adult Theatre I v. Slaton, 413 U.S. 49, 59 (1973).
45 Frisby v. Schultz, 487 U.S. 474, 484 (1988)("State's interest
in protecting the...privacy of the home is certainly of the
highest order in a free and civilized society.").
46 In Graham v. Florida, 130 Sup. Ct. 2011, 2026 (2010), this
Court again recognized that juveniles have a "lack of maturity
and an underdeveloped sense of responsibility" and that they
are "more vulnerable...to negative influences." Surely
broadcast indecency is among these "negative influences."



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