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

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Released: November 10, 2011

No. 10-1293

================================================================
In The
Supreme Court of the United States
----------------- ♦ -----------------
FEDERAL COMMUNICATIONS COMMISSION, et al.,
Petitioners,
v.
FOX TELEVISION STATIONS, INC., et al.,
Respondents.
----------------- ♦ -----------------

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

----------------- ♦ -----------------

BRIEF FOR AMICI CURIAE

FORMER FCC OFFICIALS

IN SUPPORT OF RESPONDENTS

----------------- ♦ -----------------
MARK FOWLER
TIMOTHY K. LEWIS
JERALD FRITZ
Counsel of Record
HENRY GELLER
CARL A. SOLANO
GLEN O. ROBINSON
NANCY WINKELMAN
KENNETH G. ROBINSON, JR.
MARIEKE T. BECK-COON
NEWTON N. MINOW
SCHNADER HARRISON
SEGAL & LEWIS LLP
1600 Market St., Suite 3600
Philadelphia, PA 19103
(215) 751-2000
tlewis@schnader.com
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

i

TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE .........................
1
SUMMARY OF THE ARGUMENT ......................
3
ARGUMENT ........................................................
5
I.

THE FCC’S EVOLVING STANDARDS
OF INDECENCY .......................................
5
II.
THE FCC’S CURRENT REGIME AND
JUSTICE BRENNAN’S WARNING .......... 12
III. PACIFICA’S OBSOLESCENCE ................ 19
A. Singling Out Broadcasters .................. 20
B. Burning the House to Roast the Pig ..... 28
IV. VOX POPULI AND THE POLITICS OF
INDECENCY REGULATION .................... 34
CONCLUSION ..................................................... 37


ii

TABLE OF AUTHORITIES
Page
CASES
ACLU v. Ashcroft,
542 U.S. 656 (2004) ....................................... 6, 29, 31
ACLU v. Gonzales,
478 F. Supp. 2d 775 (E.D. Pa. 2007),
aff ’d sub nom. ACLU v. Mukasey,
534 F.3d 181 (3d Cir. 2008) ..................................... 29
Action for Children’s Television v. FCC,
852 F.2d 1332 (D.C. Cir. 1988) .................................. 8
Action for Children’s Television v. FCC,
932 F.2d 1504 (D.C. Cir. 1991) .................................. 9
Action for Children’s Television v. FCC,
58 F.3d 654 (D.C. Cir. 1995), cert. denied,
516 U.S. 1072 (1996) ................................................. 9
Action for Children’s Television v. FCC,
59 F.3d 1249 (D.C. Cir. 1995) .................................... 8
Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002) ................................................. 28
Bowsher v. Synar,
478 U.S. 714 (1986) ................................................. 36
Brown v. Entm’t Merch. Ass’n,
131 S. Ct. 2729 (2011) ..................... 18, 26, 27, 31, 33
Butler v. Michigan,
352 U.S. 380 (1957) ..................................... 28, 29, 36
CBS Corp. v. FCC,
___ F.3d ___, No. 06-3575
(3d Cir. Nov. 2, 2011) ............................................... 11

iii

TABLE OF AUTHORITIES – Continued
Page
Citizens United v. FEC,
130 S. Ct. 876 (2010) ................................... 27, 28, 38
City of Ladue v. Gilleo,
512 U.S. 43 (1994) ................................................... 26
Denver Area Educ. Telecomm. Consortium, Inc.
v. FCC,
518 U.S. 727 (1996) ................................................. 20
FCC v. Fox Television Stations, Inc.,
129 S. Ct. 1800 (2009) ............................................. 14
FCC v. Pacifica Found.,
438 U.S. 726 (1978) ......................................... passim
Fox Television Stations, Inc. v. FCC,
613 F.3d 317 (2d Cir. 2010) ............. 14, 15, 19, 20, 31
Miller v. California,
413 U.S. 15 (1973) ..................................................... 5
Pearson v. Callahan,
129 S. Ct. 808 (2009) ............................................... 28
Red Lion Bctg. Co. v. FCC,
395 U.S. 367 (1968) ................................................. 21
Reno v. ACLU,
521 U.S. 844 (1997) ............................... 19, 21, 28, 33
Sable Commc’ns v. FCC,
492 U.S. 115 (1989) ........................................... 28, 36
United States v. Playboy Entm’t Grp., Inc.,
529 U.S. 803 (2000) ......................................... passim




iv

TABLE OF AUTHORITIES – Continued
Page
STATUTES AND LEGISLATIVE MATERIALS
18 U.S.C. § 1464 ....................................................... 5, 8
47 U.S.C. § 231(a)(1) ................................................... 29
47 U.S.C. § 503(b) ....................................................... 36
Broadcast Decency Enforcement Act of 2005,
Pub. L. No. 109-235, § 2, 120 Stat. 491 (2006) ....... 35
H.R. Res. 500, 108th Cong. (2004) ............................. 35
S. Res. 283, 108th Cong. (2003) ................................. 35

OTHER AUTHORITIES
A.L. Gutnick et al., Always connected: The new
digital media habits of young children (Ses-
ame Workshop and the Joan Ganz Cooney
Center 2011) ............................................................ 25
Annual Assessment of the Status of Competi-
tion in the Mkt. for the Delivery of Video Pro-
gramming
, 24 FCC Rcd 542 (2009) ........................ 20
Bill Rose & Larry Rosin, The Infinite Dial:
Radio’s Digital Platforms (Arbitron Inc./
Edison Media Research 2006) .......................... 23, 24
Broadcast Decency Enforcement Act of 2004:
Hearings on H.R. 3717 Before the Subcomm.
On Telecomms. and the Internet of the H.
Comm. on Energy and Commerce
, 108th
Cong. (2004) ............................................................ 10

v

TABLE OF AUTHORITIES – Continued
Page
Cecilia Kang, Number of cellphones exceeds
U.S. population: CTIA trade group, WASH.
POST, Post Tech, Oct. 11, 2011 ................................ 23
Charles D. Ferris, Chairman, FCC, Address
before the New England Broad. Assoc. (July
21, 1978) .................................................................... 7
Citizen’s Complaint against Pacifica Found.
Station WBAI(FM), 56 F.C.C.2d 94 (1975) ........... 5, 6
Clear Channel Broad. Licenses, Inc., 19 FCC
Rcd 6773 (2004) ....................................................... 11
Complaints Against Various Broad. Licensees
Regarding Their Airing of the “Golden
Globe Awards” Program
, 19 FCC Rcd 4975
(2004) ........................................................... 11, 13, 35
Complaints Against Various Television Licen-
sees Concerning Their Dec. 31, 2004 Broad.
of the Program “Without a Trace,”
21 FCC
Rcd 2732 (2006) ....................................................... 12
Complaints Against Various Television Licen-
sees Concerning Their Feb. 25, 2003 Broad.
of the Program “NYPD Blue,”
23 FCC Rcd
1596 (2008) .............................................................. 15
Complaints Against Various Television Licen-
sees Concerning Their Feb. 25, 2003 Broad.
of the Program “NYPD Blue,”
23 FCC Rcd
3147 (2008) .............................................................. 35



vi

TABLE OF AUTHORITIES – Continued
Page
Complaints Against Various Television Licen-
sees Regarding Their Broad. on Nov. 11,
2004, of the ABC Television Network’s
Presentation of the Film “Saving Private
Ryan
,” 20 FCC Rcd 4507 (2005) ............................. 14
Complaints Regarding Various Television
Broads. Between Feb. 2, 2002 and Mar. 8,
2005
, 21 FCC Rcd 2664 (2006) ....... 12, 13, 14, 15, 34
Complaints Regarding Various Television
Broads. Between Feb. 2, 2002 and Mar. 8,
2005
, 21 FCC Rcd 13299 (2006) ....................... 12, 14
Hulu Home Page, http://www.hulu.com/ ............. 22, 24
Implementation of the Child Safe Viewing Act:
Examination of Parental Control Techs. for
Video or Audio Programming
, 24 FCC Rcd
11413 (2009) .......................................... 22, 31, 32, 33
Indecency Complaints and NALs: 1993-2006, FCC,
http://www.fcc.gov/eb/oip/ComplStatChart.pdf ...... 11
Indus. Guidance on the Comm’n’s Case Law
Interpreting 18 U.S.C. § 1464 and Enforce-
ment Policies Regarding Broad. Indecency
,
16 FCC Rcd 7999 (2001) ......................................... 10
ITHIEL DE SOLA POOL, TECHNOLOGIES OF FREE-
DOM (1983) ............................................................... 37
Michelle Kung, McG Hopes “Aim High” Will
Redefine Social Viewing, WALL STREET JOUR-
NAL, Speakeasy, Oct. 18, 2011 ................................. 24

vii

TABLE OF AUTHORITIES – Continued
Page
Paul Fahri, Stern ‘Indecency’ Case Settled;
After 7-Year Fight With FCC, Broadcasting
Firm to Pay $1.7 Million
, WASH. POST, Sept.
2, 1995 ..................................................................... 10
Petition for Reconsideration of a Citizen’s
Complaint against Pacifica Found. Station
WBAI(FM)
, 59 F.C.C.2d 892 (1976) .......................... 7
Streaming Radio Guide, http://www.streaming
radioguide.com/ ....................................................... 23
Television Audience 2009, Nielsen, http://blog.
nielsen.com/nielsenwire/wp-content/uploads/
2010/04/TVA_2009-for-Wire.pdf ............................. 20
Video of Bono’s Acceptance Speech at the
Golden Globes, YouTube.com, http://www.you
tube.com/watch?v=COlPQlNguvU ......................... 25
WGBH Educ. Found., 69 F.C.C.2d 1250 (1978) ........... 7

1

INTEREST OF AMICI CURIAE



Amici are former commissioners and officials of
the Federal Communications Commission (“FCC” or
“Commission”) who oppose its indecency enforcement
policy.1 We are a bipartisan group with different views
about some issues of radio and television regulation,
but we are of one view on the issue now before this
Court: the discriminatory and arbitrary enforcement
of controls on indecent broadcast speech violates the
First Amendment.

Mark Fowler, currently a wireless radio project
investor and entrepreneur, was Chairman of the FCC
from 1981 to 1987. Jerald Fritz, Sr. Vice President
and General Counsel for Allbritton Communications
Company, served as Legal Advisor and Chief of Staff
to FCC Chairman Mark Fowler from 1981 to 1987.
Henry Geller, retired, served as General Counsel of the
FCC from 1964 to 1970, as special assistant to the
Chairman in 1970, and was Administrator of the
National Telecommunications and Information Ad-
ministration from 1978 to 1981. Newton N. Minow,
Senior Counsel at Sidley & Austin, LLP, was Chairman


1 Pursuant to Supreme Court Rule 37.6, amici state that no
counsel for a party authored this brief in whole or in part and
that no person or entity other than amici or their counsel
contributed monetarily to the preparation and submission of
this brief.

Petitioners and respondents have filed blanket consent
letters with the Court as to the submission of amicus briefs in
this case. The parties’ blanket consent letters are on file with the
Clerk of Court.

2
of the FCC from 1961 to 1963. Glen O. Robinson, the
David A. and Mary Harrison Distinguished Professor
of Law Emeritus at the University of Virginia, was
FCC Commissioner from 1974 to 1976. Kenneth G.
Robinson, a Washington, D.C. communications attor-
ney, was Senior Legal Advisor to FCC Chairman
Alfred Sikes from 1989 to 1993, as well as senior
policy advisor to five Assistant Secretaries of Com-
merce for Communications and Information.

As former FCC commissioners and officials,
amici have been personally associated with the
indecency controversy in the past, and we once had
some sympathy for the FCC’s concerns. Indeed, one of
us joined in the Commission’s original Pacifica deci-
sion, and a second participated in an earlier decision
that partly anticipated Pacifica. However, the FCC’s
enforcement policies have destroyed any expectations
we had for moderation and restraint in this endeavor
and have caused us to regret our earlier involvement
in it. Amici have previously filed briefs in this Court
and in the Second Circuit urging that this out-of-
control regime of program control be declared uncon-
stitutional.2
----------------- ♦ -----------------




2 Former FCC Chairman and Commissioner James Quello
participated in our earlier brief in this Court; he has since
passed away.

3

SUMMARY OF THE ARGUMENT


After several times up and down the appellate
ladder, this Court is now squarely presented with the
question whether the FCC’s current indecency en-
forcement regime violates the First Amendment.
Thirty-three years ago, the Court in FCC v. Pacifica
Foundation
, 438 U.S. 726 (1978), guardedly approved
the restriction of “indecent” broadcast programming.
Today, the Commission’s arbitrary and excessive
enforcement policies have exceeded anything contem-
plated by the Court in Pacifica and should be struck
down.

The FCC’s policy towards broadcast indecency
has evolved from a restrained effort to regulate clear,
flagrant instances of indecent language by a handful
of broadcast licensees and performers into an ever-
expanding campaign against ordinary radio and
television programming. In pursuit of a policy of
protecting children against exposure to offensive
language, the Commission has embarked on an
enforcement program that has all the earmarks of a
Victorian crusade. To effectuate its new clean-up-the-
airwaves policy, the Commission has radically ex-
panded the definition of indecency beyond its original
conception; magnified the penalties for even minor,
ephemeral images or objectionable language; and
targeted respected television programs, movies, and
even non-commercial documentaries.

The Commission’s actions in this case are but a
few of several recent actions taken by the Commission

4
that exceed the boundaries it originally set and that
were assumed by this Court in the Pacifica decision.
The Commission purports to be able to discern
whether language or images are indecent by looking
at the “context” in which they appear. However, the
banner of “context” masks subjective and arbitrary
value judgments. With no discernable standards to
the Commission’s ad hoc enforcement regime, broad-
casters inevitably steer far clear of the margins,
taking with them much constitutionally-protected
expression. By its vagueness, the Commission’s policy
casts an intolerably overbroad net by First Amend-
ment standards.

In today’s media environment, the distinctions
drawn by Pacifica between broadcast and other
electronic media are unsustainable. Viewers can
access the same content across broadcast, cable,
satellite, and the internet or can subvert the Com-
mission’s enforcement efforts by simply switching
channels or turning on a computer. This reality
makes plain that the Commission’s efforts to impose a
separate standard on broadcasters is woefully under-
inclusive. The First Amendment cannot tolerate
discrimination against one of several like speakers. It
is time for this Court to declare that the same First
Amendment principles apply to all media.

As former officials of the Commission, we under-
stand very well the political and popular pressures it
faces. However, it is an elementary principle of Amer-
ican democracy that such pressures must be con-
strained by the Constitution. The Commission has no

5
warrant to subordinate fundamental First Amend-
ment principles to the censorial demands of public
moralists or their political representatives.
----------------- ♦ -----------------

ARGUMENT

I. THE FCC’S EVOLVING STANDARDS OF

INDECENCY


Until its 1975 decision in Citizen’s Complaint
against Pacifica Foundation Station WBAI(FM), 56
F.C.C.2d 94 (1975), the Commission interpreted 18
U.S.C. § 1464 as an obscenity statute, governed by
the constitutional definition and constraints of the
Supreme Court’s obscenity jurisprudence. The statu-
tory proscription of “indecent or profane” language
was treated as synonymous with obscenity. Although
some of the pre-1975 cases might have been debata-
ble candidates for the application of the obscenity
standard announced in Miller v. California, 413 U.S.
15 (1973), they had never forced the Commission to
consider a different standard under the rubric of
indecency or profanity.

Pacifica was different: George Carlin’s monologue
on the seven words that “you couldn’t say on the
public, ah, airwaves,” clearly did not satisfy the first
prong of Miller’s definition of obscenity, requiring that
the material “appeals primarily to the prurient
interest.” 413 U.S. at 24. Confronted on the one hand
with a choice of declaring Carlin’s monologue to be
obscene and inviting certain reversal in court, and on

6
the other hand dismissing the complaint as damnum
absque injuria
, the Commission proceeded to invent a
third option, which was to give independent signifi-
cance to “indecency” but prescribe a different scope
for its regulation than that applied to obscenity.
Pacifica, 56 F.C.C.2d at 97. Traditionally, obscenity
has been treated as unprotected speech and, as such,
is subject to total suppression.3 In contrast, the FCC’s
approach to indecent speech called for a kind of time-
and-place regulation; the time being the period when
children were likely to be in the audience (subse-
quently fixed between the hours of 6 a.m. and 10
p.m.), the place being radio and television broadcasts.
Id. at 99.

The Commission’s move was novel, and even
radical in light of established jurisprudence, but it
was at least limited in scope. Except where it quali-
fied as obscenity, indecent language was generally
confined to that describing “sexual or excretory
activities and organs” in a manner that was “patently
offensive” as measured by contemporary community
standards for the broadcast medium, at times of day
when there is a reasonable risk that children may be
in the audience. Id. at 97-98. The Commission made
clear that it was concerned only with “clear-cut,
flagrant cases” and emphasized “that it would be
inequitable to hold a licensee responsible for indecent


3 ACLU v. Ashcroft, 542 U.S. 656 (2004), suggests that
obscenity is no longer completely beyond the pale of First
Amendment protection, but that question is not in issue here.

7
language” when “public events likely to produce
offensive speech are covered live, and there is no
opportunity for journalistic editing.” Petition for
Reconsideration of a Citizen’s Complaint against
Pacifica Found. Station WBAI(FM)
, 59 F.C.C.2d 892,
893 n.1 (1976). This announced policy of restraint
was critical to how this Court viewed the new doc-
trine when it affirmed the Commission in 1978. FCC
v. Pacifica Found.
, 438 U.S. 726 (1978). As Justice
Powell noted in a concurring opinion, “the Commis-
sion may be expected to proceed cautiously, as it has
in the past.” Id. at 761 n.4.

And it did. Immediately after the Supreme Court
affirmed its authority to regulate, the Commission
rejected a petition by Morality in Media to deny a
license renewal for one of the foremost educational
stations in the country on the ground that it had
consistently broadcast “offensive, vulgar and other-
wise harmful material to children.” WGBH Educ.
Found.
, 69 F.C.C.2d 1250 (1978). The Commission
held that the Court’s decision “affords this commis-
sion no general prerogative to intervene in any case
where words similar or identical to those in Pacifica
are broadcast over a licensed radio or television
station. We intend strictly to observe the narrowness
of the Pacifica holding.” Id. at 1254. To underscore
the point, then-Chairman Charles Ferris announced
that another case like Pacifica was “about as likely to
occur again as Halley’s Comet.” Charles D. Ferris,
Chairman, FCC, Address before the New England
Broad. Assoc. (July 21, 1978).

8

Paint Ferris the optimist, Halley’s Comet turned
out to be the wrong benchmark; the Comet makes a
periodic appearance about every 76 years, but inde-
cency returned to the FCC in just nine. In 1987, the
FCC was drawn back into the indecency issue by the
appearance of “shock radio” that was designed to
push the limits of provocative programming beyond
what Carlin had attempted a decade earlier. Despite
the broadcasts’ deliberately provocative character, the
Commission responded with restraint. It revised its
post-Pacifica view that the enforcement policy was
limited to the precise seven words of Carlin’s famous
monologue and reinstated the original “generic”
policy instead. The Court of Appeals for the District of
Columbia affirmed the Commission’s generic policy,
albeit not without reservation and with an admoni-
tion to the Commission to proceed cautiously. Action
for Children’s Television v. FCC
, 852 F.2d 1332 (D.C.
Cir. 1988). Echoing Justice Powell in his Pacifica
concurrence, the court pointedly noted its assumption
that “the potential chilling effect of the FCC’s generic
definition will be tempered by the Commission’s
restrained enforcement policy.” Id. at 1340 n.14.

The decision was to be the first act of a three-
ACT play in which the Commission, Congress, and
the court of appeals took turns exploring the permis-
sible limits of the new indecency regime.4 We will not


4 There was a fourth ACT case, but it dealt only with a
constitutional and statutory challenge to the procedures for
enforcing 18 U.S.C. § 1464. Action for Children’s Television v.
(Continued on following page)

9
examine the plot in detail except to observe that in
the course of the play three things were firmly estab-
lished. First, the proscription on indecency was
limited to certain hours; the First Amendment forbids
a 24-hour ban.5 Second, the Commission was required
to apply the indecency restrictions on a consistent
basis and was barred from discriminating against
commercially sponsored programs or stations.6 Third,
the court was seriously concerned about the risk that
the regulation of indecency could get out of hand. Its
repeated references to the need for caution in defining
and enforcing the restrictions, reversal of Congress’s
attempt to make the restrictions absolute, and insist-
ence on a consistent and principled policy make clear
that the court was alert to the dangers that a policy of
reining in a small number of broadcast provocateurs
could easily become a vehicle for an unconstitutional
morals crusade against the entire industry.

In the aftermath of the ACT cases, the Commis-
sion continued to view indecency as a problem of con-
trolling a small number of rogue broadcasters and

FCC, 59 F.3d 1249 (D.C. Cir. 1995). The court rejected the
challenges.

5 In the second “act,” Action for Children’s Television v.
FCC, 932 F.2d 1504 (D.C. Cir. 1991), the court struck down
Congress’s attempt in 1989 to eliminate the indecency “safe
harbor.”

6 See Action for Children’s Television v. FCC, 58 F.3d 654
(D.C. Cir. 1995), cert. denied, 516 U.S. 1072 (1996) (affirming the
ban on indecency between the hours of 6 a.m. and 10 p.m. for all
stations; reversing the use of broader period, 6 a.m. to 12 a.m.,
for commercial stations).

10
broadcast personalities like Howard Stern, whose
syndicated talk show was responsible for a very large
percentage of all fines paid for indecent broadcasting
over the past score years.7 In 2001, the Commission
issued a set of guidelines on its indecency policy, but
the guidelines did not announce any new policy. See
Indus. Guidance on the Comm’n’s Case Law Interpret-
ing 18 U.S.C. § 1464 and Enforcement Policies Re-
garding Broad. Indecency
, 16 FCC Rcd 7999 (2001).

Yet, the time was not far off when things would
change – radically. In 2004 the Commission em-
barked on what then-Chairman Michael Powell
described as the “most aggressive enforcement regime
in decades.” See Broadcast Decency Enforcement Act
of 2004: Hearings on H.R. 3717 Before the Subcomm.
on Telecomms. and the Internet of the H. Comm. on
Energy and Commerce
, 108th Cong. 87, at 79 (2004).
He could have more precisely said the most aggres-
sive enforcement regime ever. Not only did the Com-
mission find more violations and impose more
penalties in that one year than in the entire prior
history of the indecency doctrine,8 it greatly expanded


7 In 1995, for example, Infinity Broadcasting paid a then-
record sum of $1.7 million to settle indecency complaints over a
series of Howard Stern Shows. Paul Fahri, Stern ‘Indecency’
Case Settled; After 7-Year Fight With FCC, Broadcasting Firm to
Pay $1.7 Million
, WASH. POST, Sept. 2, 1995, at F1.

8 In 2004, the FCC assessed nearly $8 million in proposed
fines and settlements, compared to $440,000 a year earlier.
Between 1993 and 2006, 2004 was the high water mark for
(Continued on following page)

11
the scope of what constituted indecency, as, for exam-
ple, in its extraordinary and unprecedented ruling in
the Golden Globe Awards decision that a single,
spontaneous exclamation – “Fucking brilliant” – by
Bono upon receiving the award was indecent. Com-
plaints Against Various Broad. Licensees Regarding
Their Airing of the “Golden Globe Awards” Program
,
19 FCC Rcd 4975 (2004) (“Golden Globe”).9 To magni-
fy the impact still further, the Commission decided
that each utterance of a forbidden word may be
counted as a separate violation, instead of looking at
a particular program as a single, integrated unit. See
Clear Channel Broad. Licenses, Inc., 19 FCC Rcd
6773 (2004).

The Commission’s new campaign also moved
beyond the traditional targets for indecency enforce-
ment. With a few exceptions, those traditional targets
were radio talk shows that deliberately and repeatedly
followed a pattern of provocative programming. In its
new phase, however, the Commission has undertaken

annual collection. See Indecency Complaints and NALs: 1993-
2006, FCC, http://www.fcc.gov/eb/oip/ComplStatChart.pdf.

9 The Commission’s decision in Golden Globe to punish
fleeting expletives and images was such a dramatic departure
from its previous enforcement policy that the U.S. Court of
Appeals for the Third Circuit recently held an attempt to fine
CBS for airing a fleeting image of Janet Jackson’s breast during
the 2004 Super Bowl Halftime Show – which occurred prior to
Golden Globe – to be arbitrary and capricious under the Admin-
istrative Procedure Act. CBS Corp. v. FCC, No. 06-3575, slip op.
at 18 (3d Cir. Nov. 2, 2011).

12
a close inspection of movies, regular television series,
live events, and even educational documentaries, to
locate objectionable language or images. Even criti-
cally honored television programs like “Without a
Trace” and “NYPD Blue” have become targets of
indecency patrols. See Complaints Against Various
Television Licensees Concerning Their Dec. 31, 2004
Broad. of the Program “Without a Trace
,” 21 FCC Rcd
2732 (2006) (finding violation and proposing forfei-
ture of $32,000 for each CBS owned or affiliated
station carrying the program); Complaints Regarding
Various Television Broads. Between Feb. 2, 2002 and
Mar. 8, 2005
, 21 FCC Rcd 2664, 2696-98 (2006) (find-
ing violation but imposing no forfeiture for “NYPD
Blue” program) (“Omnibus Order”).10

II. THE FCC’S CURRENT REGIME AND JUS-

TICE BRENNAN’S WARNING


The orders now before the Court exemplify the
character of the Commission’s radically expansionist
indecency regime. The Commission has traveled far
afield of Pacifica’s narrow confines to embrace an ad
hoc
approach with a broad and unpredictable nature


10 The Commission’s remand decision in the Omnibus Order
dismissed the complaints against “NYPD Blue” on a procedural
ground; however, this dismissal does not alter the substance of
its earlier finding that the program contained indecent and
profane language. See Complaints Regarding Various Television
Broads. Between Feb. 2, 2002 and Mar. 8, 2005
, 21 FCC Rcd
13299, 13328-29 (2006) (“Omnibus Remand Order”).

13
that chills vast swaths of speech protected by the First
Amendment. The First Amendment will not tolerate
such a vague and overbroad exercise of authority.

Under the new enforcement regime, indecency
can mean as little as the casual use of an expletive.
For example, in the Omnibus Order the Commission
found that the documentary, “The Blues: Godfathers
and Sons,” broadcast by a non-commercial education-
al station, was indecent because of the use of the F-
word or S-word by some of the artists interviewed. 21
FCC Rcd at 2684-85. The Commission held that “any
use of [the F-word] or a variation, in any context,
inherently has a sexual connotation, and therefore
falls within the first prong of our indecency defini-
tion.” Id. at 2684 (quoting Golden Globe, 19 FCC Rcd
at 4978). It went on to say that the S-word similarly
“has an inherently excretory connotation.” Id.
However,
the
Commission’s attempt to classify
certain words as “inherently” sexual or excretory is
utterly perplexing when viewed alongside its treat-
ment of other words.11 According to the Commission,


11 The Commission’s “inherency doctrine” is also preposter-
ously out of touch with the way language is used and understood
today. It may be that Twila Tanner (in a live interview) describ-
ing a fellow contestant on “Survivor: Vanuatu” as a “bullshitter”
was vulgar. Omnibus Order, 21 FCC Rcd at 2698-2700. However,
only a silly literalist would think that she was describing an
excretory function. As Justice Stevens aptly observed in his
dissenting opinion in the Court’s 2009 Fox decision, “As any
golfer who has watched his partner shank a short approach
knows, it would be absurd to accept the suggestion that the
(Continued on following page)

14
it is indecent to call someone a “bullshitter,” id. at
2698-2700, but it is all right to call him an “ass,” id.
at 2712, or even a “dickhead,” id. at 2696. You may
never say “fuck ‘em” – even in an off-handed way, id.
at 2690-92 – but it is at least sometimes okay to say
“up yours” with all deliberate intensity, id. at 2712.
The Commission justifies its unpredictable
enforcement policy by professing to consider offending
language or images in “context.” Under this approach,
the Commission may determine an expletive is inde-
cent in one context, but is “integral” to a work’s
artistic value in another. See Omnibus Remand
Order
, 21 FCC Rcd at 13327. As the U.S. Court of
Appeals for the Second Circuit aptly noted below, this
standardless approach begets uncomfortable results,
such as the disparate treatment of the film “Saving
Private Ryan” and the documentary, “The Blues.” Fox
Television Stations, Inc. v. FCC
, 613 F.3d 317, 333 (2d
Cir. 2010). The words “fuck” and “shit” were deemed
integral to the “realism and immediacy” of a film
about combat in World War II, but indecent in the
context of artists interviewed on the history of blues
music. Compare Complaints Against Various Televi-
sion Licensees Regarding Their Broad. on Nov. 11, 2004,
of the ABC Television Network’s Presentation of the Film


resultant four-letter word uttered on the golf course describes
sex or excrement and is therefore indecent. But that is the
absurdity the FCC has embraced in its new approach to inde-
cency.” FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800,
1827 (2009).

15
“Saving Private Ryan,” 20 FCC Rcd 4507, 4513
(2005), with Omnibus Order, 21 FCC Rcd at 2684-85.
Though the Second Circuit saw “no reason to suspect
that the FCC is using its indecency policy as a means
of suppressing particular points of view[,]” the poli-
cy’s vulnerability to discriminatory enforcement and
subjective value judgments was clear. Fox, 613 F.3d
at 332-33.

The Commission’s contextual approach applies
with equal force to its treatment of images. With
almost no explanation, the Commission declared that
seven seconds of a woman’s buttocks and a brief view
of the side of her breast while she prepares for a
shower constitutes an “explicit,” “graphic,” “shock-
ing,” and “titillating” depiction of sexual organs. See
Complaints Against Various Television Licensees
Concerning Their Feb. 25, 2003 Broad. of the Program
“NYPD Blue,”
23 FCC Rcd 1596, 1598-1600 (2008). At
the same time, the Commission defends its judgment
that the full frontal nudity of concentration camp
prisoners in the film “Schindler’s List” is not indecent
by simply stating that ABC could not “reasonably”
expect the two to be treated alike. Pet’r’s Br. 32. The
Commission’s terse explanation ignores the fact that,
though the two contexts are indeed very different,
they give no guidance or standards for networks to
follow in the future. Pointing to “context” is not an
explanation in itself. It leads to a subjective agency
judgment whether material in one program is artisti-
cally permissible (e.g., Private Ryan; Schindler) and
material in others is titillating and thus gratuitous

16
(e.g., Blues; NYPD Blue). With such subjective cen-
sorship, the FCC becomes the national nanny of who
gets an artistic pass and who does not. Indeed, it is
impossible to predict whether the landmark mini-
series “Roots,” premiered by ABC in 1977 and based
on Alex Haley’s famous saga on slavery, could be
broadcast today; the series opens with scenes featur-
ing topless female African villagers.

The Commission’s reliance on “context” as an all-
encompassing justification flies in the face of Pacifi-
ca’s
use of the concept. Context was a limiting princi-
ple for the Pacifica Court. It has now become a tool,
not for curtailing the reach of the Commission’s
indecency regime, but for expanding it. The Pacifica
plurality invoked the concept of context to distinguish
Carlin’s monologue from circumstances in which
similar language would be protected by the First
Amendment. 438 U.S. at 746-47. The plurality de-
termined that the “Dirty Words” of Carlin’s mono-
logue lacked constitutional protection in the unique
context at bar: the intentionally provocative repeti-
tion of profanities over a twelve minute period during
a daytime broadcast. In his concurrence, Justice
Powell rejected the idea that that Court could gener-
ally opine on the value of speech, but joined the
judgment on the understanding that the Commission
would confine itself to punishing only the sort of
“verbal shock treatment” that Carlin’s monologue
inflicted. Id. at 757, 761 & n.4.

It was Justice Brennan, in his prescient dissent,
who foresaw how his colleague’s assertedly narrow

17
opinion could be exploited. He highlighted the path-
way leading directly to the panoptical policy we see
today. He noted that the Court’s two justifications for
limiting First Amendment protection – the intrusive
nature of radio and the presence of children in the
listening audience – imported no natural limitation to
potential censorship:
These two asserted justifications are .
.
.
plagued by a common failing: the lack of
principled limits on their use as a basis for
FCC censorship. No such limits come readily
to mind, and neither of the opinions consti-
tuting the Court serve to clarify the extent to
which the FCC may assert the privacy and
children-in-the-audience rationales as justi-
fication for expunging from the airways pro-
tected communications the Commission finds
offensive. Taken to their logical extreme,
these rationales would support the cleansing
of public radio of any “four-letter words”
whatsoever, regardless of their context. The
rationales could justify the banning from ra-
dio of a myriad of literary works, novels, po-
ems, and plays . . . ; they could support the
suppression of a good deal of political speech
. . . ; and they could even provide the basis
for imposing sanctions for the broadcast of
certain portions of the Bible.
Id. at 771-72 (Brennan, J., dissenting).

Justice Brennan observed that the plurality and
concurrence were prepared to “take the FCC at its
word” that the agency recognized the limited factual

18
context of tolerable enforcement, but did not share
their faith himself. Id. at 769, 771. As Justice Bren-
nan feared, the Commission has now taken the
Pacifica rationales “to their logical extreme” and
turned a unique context – a factual outlier – into a
malleable justification meaning, in effect, “regardless
of context.” Id. at 770-71.

The lack of standards and ad hoc enforcement of
the Commission’s indecency policy leaves broadcast-
ers with no compass and little to do but try to avoid
fines by steering far clear of potentially objectionable
programming. This Court has repeatedly recognized
that the First Amendment will not tolerate such
overbroad and chilling regulation. As recently as last
term, the Court emphasized that even legitimate
government aims, when burdening First Amendment
rights, “must be pursued by means that are neither
seriously underinclusive nor seriously overinclusive.”
Brown v. Entm’t Merch. Ass’n, 131 S. Ct. 2729, 2741-
42 (2011). Addressing a state ban on the sale of
violent video games to minors, the Court in Brown
highlighted the danger of government-imposed moral-
ity in finding the law overinclusive: “While some of
the legislation’s effect may indeed be in support of
what some parents of the restricted children actually
want, its entire effect is only in support of what the
State thinks parents ought to want.” Id. at 2741
(emphasis in original). Similarly here, the Commis-
sion’s indecency policy has become a vehicle for
imposing its own value judgments on broadcasters
and viewers. The inevitable result is that broadcasters
censor themselves in an attempt to predict what

19
those values will be. It is time for the Court to heed
Justice Brennan’s advice: “I would place the respon-
sibility and the right to weed worthless and offensive
communications from the public airways where it
belongs . . . in a public free to choose those communi-
cations worthy of its attention from a marketplace
unsullied by the censor’s hand.” Pacifica, 438 U.S. at
772. (Brennan, J., dissenting).

III. PACIFICA’S

OBSOLESCENCE

From the beginning, the sole source of the consti-
tutional authority to regulate indecency has been this
Court’s decision in Pacifica. As the Second Circuit
noted, post-Pacifica courts have applied “something
akin to intermediate scrutiny” to the Commission’s
indecency regime. Fox, 613 F.3d at 326. The orders
now before the Court serve to underscore how differ-
ently broadcast media is treated from cable and
internet, which receive strict scrutiny. United States
v. Playboy Entm’t Grp., Inc.
, 529 U.S. 803 (2000);
Reno v. ACLU, 521 U.S. 844 (1997). At the same time,
modern technology has collapsed the traditional
distinctions between media on which Pacifica relied
to treat broadcasting in a separate class. This singu-
lar treatment of broadcasting is woefully under-
inclusive when viewed alongside readily-accessible
content available through other media. Pacifica
should be overruled and the artificial and discrimina-
tory isolation of broadcast media lifted. If afforded
full First Amendment protection, it is clear the Com-
mission’s indecency policy cannot pass constitutional
muster.

20

A. Singling Out Broadcasters


The factors relied on by Pacifica to treat broad-
cast media as unique were that broadcasting was
considered to be a “uniquely pervasive presence in the
lives of Americans” and “uniquely accessible to chil-
dren.” Pacifica, 438 U.S. at 748-59. The Second
Circuit expressed skepticism that these distinctions
are still valid today. See Fox, 613 F.3d at 326 (“The
past thirty years has seen an explosion of media
sources, and broadcast television has become only one
voice in the chorus.”). That skepticism is well ground-
ed. In 2006, about 86% of television households
received their television programs from cable or
satellite (classified by the Commission as “multi-
channel video program distributors” or “MVPD”).
Annual Assessment of the Status of Competition in the
Mkt. for the Delivery of Video Programming
, 24 FCC
Rcd 542, 546 (2009). In January 2010, the Nielsen
Company reported that 9% of homes with televisions
relied only on broadcast service, and the number has
been steadily decreasing year-to-year. Television
Audience 2009, Nielsen, http://blog.nielsen.com/nielsen
wire/wp-content/uploads/2010/04/TVA_2009-for-Wire.pdf.
In an environment where the vast majority of TV-
watching homes access channels not subject to the
Commission’s indecency regime directly alongside
those that are, it makes no sense whatsoever to
continue to regard broadcast programs as “uniquely
pervasive” or “uniquely accessible to children.” See
Denver Area Educ. Telecomm. Consortium, Inc. v.
FCC
, 518 U.S. 727, 744-45 (1996) (Breyer, J.) (plurality)

21
(finding the pervasiveness factors cited in Pacifica
applicable to cable television).12

In the internet age, the same observation holds
true for online viewing. This Court, refusing to apply
Pacifica to the internet, treated it as qualitatively
different from broadcast media in Reno v. ACLU, 521
U.S. 844 (1997).13 However, the Court in Reno would
have needed a crystal ball to predict the changes to
come over the next fourteen years in the content
available on the internet and its pervasive presence
in the lives of American adults and children. Today,


12 In light of the broadcasting-is-different mantra, it bears
emphasizing here that the foremost technological feature that
has been thought to make broadcasting different from other
media – the use of scarce spectrum – was not part of the inde-
cency doctrine. See Pacifica, 438 U.S. at 770 n.4 (Brennan, J.,
dissenting) (noting that both the majority opinion by Justice
Stevens and the concurring opinion by Justice Powell “rightly
refrain from relying on the notion of ‘spectrum scarcity’ to
support their result”). The public trustee rationale of Red Lion
Bctg. Co. v. FCC
, 395 U.S. 367 (1968), is thus not involved here.

13 Among other things, the Court in Reno reasoned that the
internet, unlike broadcasting, is not “invasive” and does not
“appear on one’s computer screen unbidden.” 521 U.S. at 849.
This idea that broadcasting is invasive is a curious one, conjur-
ing the image of hapless captives of the TV screen who are
unable to defend themselves even with a remote control that can
change channels faster than a speeding bullet. Be that as it may,
it no longer makes sense to distinguish between broadcasting
and cable on this basis. Yet in Playboy, 529 U.S. 803, the Court
held that cable content controls were unconstitutional absent a
showing that it was the least restrictive means of accomplishing
the objective of protecting children. No consideration was given
to the invasiveness/surprise element.

22
the walls have all but collapsed between media with
regard to what, when, and where programming
content is available, as evidenced by the steadily
increasing popularity of streaming internet video. See
Implementation of the Child Safe Viewing Act; Exam-
ination of Parental Control Techs. for Video or Audio
Programming
, 24 FCC Rcd 11413, 11471-73 (2009)
(“Congressional Report”) (discussing expansive avail-
ability of video on the internet). In 1997, it might
have been plausible to suppose that children would
not stumble upon offensive language or images online
because most users searched for discrete content. In
today’s era, the element of surprise is as likely for
streaming online video as it is for broadcast video.
The reality is the internet is becoming an alternative
platform for viewing programs that are seen on
conventional TV, as Hulu illustrates. See Hulu Home
Page, http://www.hulu.com/. Hulu (a joint venture of
NBC, Fox, and ABC, with some additional outside
investment) offers commercially supported streaming
video of regular TV shows and movies from broadcast
networks and other sources (including a number of
cable networks). Except for the smaller screen size of
the display terminal there is no important difference
between watching an episode of “House” on conven-
tional TV and watching it as a video stream on the
internet. Of course, any broadcast-based programs
that appear on Hulu are subject to indecency controls
if they are broadcast during the hours of 6 a.m. to 10
p.m. But a program that was broadcast during the
safe harbor period is available on Hulu any time,
with no restrictions on content.

23

In terms of access, “[t]he typical home of 2.6
people has an average of 24 gadgets, including at
least one smartphone – double the number 15 years
ago. . . .” Cecilia Kang, Number of cellphones exceeds
U.S. population: CTIA trade group
, WASH. POST, Post
Tech, Oct. 11, 2011, http://www.washingtonpost.com/
blogs/post-tech/post/number-of-cell-phones-exceeds-us-
population-ctia-trade-group/2011/10/11/gIQARNcEcL_
blog.html. The advent of smartphones and other
internet-accessible mobile gadgets increasingly makes
the content the FCC attempts to suppress available
anytime, anywhere.

The internet has likewise rendered it absurd to
treat radio broadcasting as a unique medium for First
Amendment purposes. Thousands of radio stations
that are subject to the Commission’s indecency re-
gime while broadcast over the airwaves are also
available as streaming radio or podcasts over the
internet, where Pacifica has no application. See
Streaming Radio Guide,
http://www.streamingradio
guide.com/. In 2006, an estimated 12% of Americans
had listened to internet radio within the past week –
a 50% increase over the previous year – and one in
five had listened within the past month. Bill Rose &
Larry Rosin, The Infinite Dial: Radio’s Digital Plat-
forms
4-5 (Arbitron Inc./Edison Media Research
2006), http://www.arbitron.com/downloads/digital_
radio_study.pdf.

The Commission argues that because so much of
the available network content originates as broadcast
programming, it can achieve much of its purpose by

24
simply regulating the broadcast end of the distribu-
tion pipeline. This short-sighted argument will prove
at best a temporary and increasingly futile means of
achieving the Commission’s aims, forcing false distor-
tions between programming delivered to broadcast
channels and that available on the internet. The
rapid proliferation of web-only series makes this
likelihood clear. Hulu already lists “Web Originals” as
its own genre of programming, offering a number of
series that can be accessed with a single click.

See Hulu, http://www.hulu.com/genres/Web. Recently,
producer/filmmaker McG launched the web series
“Aim High” for Warner Bros. Digital Distribution,
allowing viewers to interact with the show through
social media. Michelle Kung, McG Hopes “Aim High”
Will Redefine Social Viewing
, WALL STREET JOURNAL,
Speakeasy, Oct. 18, 2011, http://blogs.wsj.com/speakeasy/
2011/10/18/mcg-hopes-aim-high-will-redefine-social-
viewing/. In internet radio, podcasts (downloadable
program-oriented online audio files) are available to
provide web-only content to a growing audience. See
Rose, The Infinite Dial, at 2, 9.

In all events, it simply defies common sense to
assume that cleansing the broadcast airwaves of
material deemed indecent by the Commission curtails
children’s access to the same material through other
media. Some of the same programs the Commission
has labeled indecent when broadcast can be seen on
YouTube. Indeed, because they are archived, they can
be seen and seen again. No one knows how many
children saw the 2003 Golden Globe award show

25
when Bono exclaimed the F-word on receiving the
award. But it is a fair guess that a larger number will
see it on YouTube, where it has been archived since
2007.14 See Video of Bono’s Acceptance Speech at the
Golden Globes, YouTube.com, http://www.youtube.com/
watch?v=COlPQlNguvU.


14 According to a report by the Joan Ganz Cooney Center at
Sesame Workshop:
More children use the Internet regularly and for long-
er periods of time than ever before. Most children who
go online do so a few times a week, and unsurprising-
ly, usage increases with age. Among very young chil-
dren (0 to 5) who use the Internet, about 80% do so at
least once a week. At age 3, about one-quarter of chil-
dren go online daily, increasing to about half by age 5.
And by age 8, more than two-thirds use the Internet
on any given weekday. Children ages 5 to 9 average
about 28 minutes online daily. In 2009, the oldest
children in our review (8 to 10) spent about 46
minutes on a computer every day . . . This is more
than double the amount of time 8-to-10-year olds
spent online in 2006 (19 minutes).
A.L. Gutnick et al., Always connected: The new digital media
habits of young children
16 (Sesame Workshop and the Joan
Ganz Cooney Center 2011), http://joanganzcooneycenter.org/
upload_kits/jgcc_alwaysconnected.pdf.

Though young children still spend much more media time
with TV (encompassing both cable and broadcast) than the
internet, see id., the key point is that even very young children
go online regularly and the number is increasing. To be clear,
the suggestion is not that children go online in order to access
indecent program content (just as they do not normally turn on
the TV to do so). Rather, the critical point is that the reasons for
treating the media differently can no longer hold water in the
modern media environment.

26

The fact that there is nothing “unique” about
broadcast programming content makes clear that the
Commission’s efforts to apply its indecency policy are
painfully underinclusive. See City of Ladue v. Gilleo,
512 U.S. 43, 51 (1994) (“the notion that a regulation
of speech may be impermissibly underinclusive is
firmly grounded in basic First Amendment princi-
ples”) (emphasis in original). With a click of the
remote control or by turning on a computer, viewers
turn effortlessly between media subject to vastly
different standards of First Amendment review. This
underinclusiveness raises two important concerns:
First, an underinclusive regulation undermines the
purpose of the restraint, without which there can be
no excuse for the restriction of speech. Second, a
regulation that is underinclusive by applying to one
speaker, but not other like speakers, discriminates
against the censored speaker. The Court recently
underscored both of these points in Brown. The Court
noted that, although California banned the sale of
violent video games to minors, it failed to ban other
avenues of delivering violent images shown to have
the same effect on children, such as “cartoons star-
ring Bugs Bunny or the Road Runner” or video games
like “Sonic the Hedgehog” rated as appropriate for all
ages. Brown, 131 S. Ct. at 2739. Justice Scalia rea-
soned:
The consequence is that [California’s] regula-
tion is wildly underinclusive when judged
against its asserted justification, which in
our view is alone enough to defeat it. Under-
inclusiveness raises serious doubts about

27
whether the government is in fact pursuing
the interest it invokes, rather than disfavor-
ing a particular speaker or viewpoint.
Id. at 2740; see also Citizens United v. FEC, 130 S. Ct.
876, 898 (2010) (the First Amendment prohibits
“restrictions distinguishing among different speakers,
allowing speech by some but not others”).

The Commission replicates here the precise
issues that troubled the Brown Court. It attempts to
cleanse one medium of speech deemed indecent while
other media with like content escape similar scrutiny.
It is of no moment that the Commission’s inability to
enforce its indecency regime against cable and the
internet derives from a lack of authority to do so. The
result is the same: broadcasters are disfavored among
media for no persuasive reason.

It is simply incoherent and discriminatory to
have multiple First Amendments for different elec-
tronic media used to deliver the same basic words
and images to the end consumer. Pacifica must be
overruled and the same strict scrutiny applied to
broadcast media as is applied to cable and the inter-
net. As Citizens United very recently emphasized:
[A]ny effort by the Judiciary to decide which
means of communications are to be preferred
for the particular type of message and
speaker would raise questions as to the
courts’ own lawful authority. Substantial
questions would arise if courts were to begin
saying what means of speech should be pre-
ferred or disfavored. And in all events, those

28
differentiations might soon prove to be irrel-
evant or outdated by technologies that are in
rapid flux.
130 S. Ct. at 890. The Court in Citizens United itself
overruled precedent that was only ten years old,
emphasizing that stare decisis principles must yield
where “experience has pointed up the precedent’s
shortcomings.” Id. at 912 (quoting Pearson v. Calla-
han
, 129 S. Ct. 808, 816 (2009)). “Rapid changes in
technology – and the creative dynamic inherent in the
concept of free expression – counsel against upholding
a law that restricts political speech in certain media
or by certain speakers.” Id. at 912-13.

B. Burning the House to Roast the Pig


If the Commission’s indecency policy receives the
strict scrutiny it is due, it clearly cannot pass consti-
tutional muster consistent with the Court’s treatment
of other media. Even assuming the legitimacy of the
Commission’s underlying concerns about the impact
of profanity or provocative images on children, the
First Amendment requires the least restrictive means
to be employed to address them. The Court has
repeatedly held that the government cannot “reduce
the adult population . . . to reading [or seeing] only
what is fit for children.” Ashcroft v. Free Speech
Coalition
, 535 U.S. 234 (2002) (quoting Butler v.
Michigan
, 352 U.S. 380, 381 (1957) and citing Play-
boy
, 529 U.S. at 814; Reno, 521 U.S. at 875; and Sable
Communications v. FCC
, 492 U.S. 115, 130-31



29
(1989)). To do so is – as Justice Brennan put it in his
Pacifica dissent – “to burn the house to roast the pig.”
Pacifica, 438 U.S. at 766 (quoting Butler, 352 U.S. at
383).

Addressing cable programming in Playboy, 529
U.S. at 826, the Court held that the government must
show the absence of effective alternative private
means of controlling offensive content before impos-
ing government controls. In ACLU v. Ashcroft, 542
U.S. 656, 670 (2004), the Court upheld a preliminary
injunction against enforcement of the Child Online
Protection Act, 47 U.S.C. § 231(a)(1), on the ground
that blocking and filtering technology appeared to
provide an effective and less restrictive alternative to
direct government control.15 Indeed, the availability of
blocking technology was the “key difference between
cable television and the broadcasting media” identi-
fied by the Playboy Court in distinguishing Pacifica:
The option to block [unwanted channels] re-
duces the likelihood, so concerning the Court
in Pacifica, . . . that traditional First Amend-
ment scrutiny would deprive the Govern-
ment of all authority to address this sort of
problem . . . Simply put, targeted blocking
is less restrictive than banning, and the




15 The Court remanded for further hearings on the question
whether available filtering technology was an effective and less
restrictive alternative. On remand the lower court confirmed
that it was. See ACLU v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa.
2007), aff ’ d sub nom. ACLU v. Mukasey, 534 F.3d 181 (3d Cir.
2008).

30
Government cannot ban speech if targeted
blocking is a feasible and effective means of
furthering its compelling interests
.
Playboy, 529 U.S. at 815 (emphasis added).16

Equivalent technology is available for television
broadcasting, such as the V-chip device.17 As the
Second Circuit noted:
Every television, 13 inches or larger, sold in
the United States since January 2000 con-
tains a V-chip, which allows parents to block
programs based on a standardized rating
system . . . Moreover, since June 11, 2009,
when the United States made the transition
to digital television, anyone using a digital
converter box also has access to a V-chip . . .
In short, there now exists a way to block pro-
grams that contain indecent speech [or im-
ages] in a way that was not possible in 1978.


16 Note that the “ban” referred to in Playboy was in fact an
analogous restriction to the safe harbor hours applicable to
broadcasters. The legislation at issue in Playboy required cable
television operators to block channels “primarily dedicated to
sexually-oriented programming” except between the hours of 10
p.m. and 6 a.m. 529 U.S. at 806.

17 Admittedly, an equivalent to the V-chip does not currently
exist for radio broadcasting. However, the Commission’s post-
2004 enforcement regime has increasingly focused on television
and the absence of a radio equivalent does not detract from the
V-chip as an effective, less restrictive alternative allowing
parents to control a child’s television programming access.

31
Fox, 613 F.3d at 326. As a simple and effective means
of filtering broadcast television, parental control
provides a viable means of screening indecent content
that is effectively indistinguishable from private
controls previously approved by the Court.

It is no objection to the viability of the V-chip that
it is not widely used or understood by parents, as the
Commission argues. As the Court emphasized in
ACLU v. Ashcroft, it is not actual use but the availa-
bility
of individualized filtering devices that makes
them a less restrictive alternative. 542 U.S. at 669-
70. The Government does not have a compelling
interest in doing what informed and empowered
parents can do for themselves in protecting children.
Playboy, 529 U.S. at 526. As the Commission itself
noted in a 2009 Congressional Report, “The limited
number of parents who have used the V-chip find it
beneficial.” Congressional Report, 24 FCC Rcd at
11422; see also id. at 11424 (studies indicate that
parents who use the broadcast, cable, and movie
rating system for television content find it useful).
That parents have access to the tools they need
should be the end of the inquiry. Whether they are
used is a personal choice, not one for the government.
See Brown, 131 S. Ct. at 2741 (it is not narrow tailor-
ing to legislate, not based on what parents actually
want, “but what the State thinks parents ought to
want”) (emphasis in original).

The Commission can and should engage in public
education and cooperate with media providers to
improve awareness of the V-chip and other parental

32
controls. Empowering parents to make informed
choices is a useful and appropriate role for the gov-
ernment. The Commission acknowledges this in its
Congressional Report, where it discusses a number of
avenues of planned study to increase awareness and
usage of the V-chip, such as improvements to the
industry rating system, providing instructional
inserts with TV purchases, and encouraging manu-
facturers to offer a V-chip button on remote controls.
See Congressional Report, 24 FCC Rcd at 11423,
11435. In reality, many parents do not use the V-chip
because they “use other kinds of parental control
tools and parenting strategies to monitor and guide
their children’s media use . . . including setting rules
about when children can use media and what chan-
nels they can watch, keeping the TV and/or computer
in a public space in the home, or blocking TV chan-
nels through their cable service.” Id. at 11422-23.
Across all media, however, commentators favored
“greater education and media literacy for parents and
more effective diffusion of information about the tools
available to them.” Id. at 11414. It is through educa-
tion and encouraging industry innovation that the
Commission can best help parents monitor a child’s
media intake without severely burdening the First
Amendment rights of broadcasters and viewers who
want to receive screened content.

It is also no argument against the V-chip to
highlight its imperfections. The Commission asserts
the V-chip is not a substitute for indecency enforce-
ment because it may not catch unexpected content or

33
because programs may be inaccurately rated. Pet’r’s
Br. 49-51. However, this Court has already rejected
the argument against imperfect parental controls.
Though the Court in Brown acknowledged that the
voluntary video game rating system at issue was
imperfect and some minors would still purchase
violent video games, the Court nonetheless concluded:
“Filling the remaining modest gap in concerned-
parents’ control can hardly be a compelling state
interest.” 131 S. Ct. at 2741. “[S]ome gap in compli-
ance is unavoidable.” Id. at 2741 n.9. The Court in
Playboy similarly refused to discount blocking tech-
nology because it “may not go perfectly every time,”
recognizing that “[a] court should not assume a
plausible, less restrictive alternative would be inef-
fective.” 529 U.S. at 824. Indeed, the Court in Reno
was heavily influenced by the prospect of better
parental controls for internet-users in the future in
concluding the government failed to explain why a
less restrictive alternative like parental controls was
not as effective as a ban on delivering indecent con-
tent to minors over the internet. 521 U.S. at 877, 879;
see also Congressional Report, 24 FCC Rcd at 11424-
35 (discussing potential improvements to make the V-
chip more effective).
Moreover,
the
Commission’s complaints about the
V-chip’s imperfections belie the assumption that its
current indecency policy will do a better job. As a
practical matter, the only way to assure a perfect
result is to employ precisely the means the post-2004
Commission has embraced: cast a wide net and scare

34
off so much speech that “accidents” simply do not
arise. Again, the Commission’s demand for perfection
seeks to “burn the house to roast the pig.”

Parental controls empower individuals by allow-
ing them to tailor their children’s programming
according to the parent’s idea of what is appropriate
while avoiding a burden on the rights of viewers who
wish to receive the restricted content. The Commis-
sion’s indecency controls do not empower parents;
they merely empower the government – along with a
handful of activist morality groups – to assume the
parental role on their behalf.

IV. VOX POPULI

AND THE POLITICS OF

INDECENCY REGULATION


The Commission’s post-2004 indecency enforce-
ment regime is, to a certain extent, a product of
popular pressures. The Commission certainly cannot
ignore the concerns and complaints of viewers, politi-
cal groups, and Congress. However, the Commission’s
enforcement actions make it appear that there has
been some rampant growth in broadcast indecency,
and indeed a casual inspection of the number of
recorded public complaints might suggest as much.
The number of complaints is misleading, however,
and the Commission’s reference in the Omnibus Order,
21 FCC Rcd at 2665, to “hundreds of thousands of
complaints between February 2002 and March 2005”
is completely disingenuous. The Commission is fully
aware that the overwhelming percentage of recent

35
complaints target a handful of programs, and most of
them are computer-generated electronic complaints
provided by activist groups such as the Parents
Television Council. In some cases, the Commission’s
complaint count has even included duplicate com-
plaints from the same person to different commis-
sioners and staff as separate complaints. To further
underscore the artificiality of the complaint process,
the Commission ruled that it will act on complaints
even if the complainant does not claim to have
watched or heard the program. Complaints Against
Various Television Licensees Concerning Their Feb.
25, 2003 Broad. of the Program “NYPD Blue,”
23 FCC
Rcd 3147, 3156 (2008). The Commission’s complaints
policy has become so artificial that it naturally
prompts the question, why does the Commission not
simply turn the monitoring function over to the
Parent’s Television Council? The answer is simple: it
already has.

Adding to the influence of activist crusaders like
the Parents Television Council, the Commission has
also been influenced by congressional pressure. In
2003 and 2004, the Senate and House adopted resolu-
tions that not only declared the FCC should be more
vigorous in its enforcement of indecency but should
specifically overrule its enforcement bureau’s finding
of no violation in Golden Globe. S. Res. 283, 108th
Cong. (2003); H.R. Res. 500, 108th Cong. (2004). The
FCC responded, both in Golden Globe and here.
Shortly thereafter, Congress reaffirmed its desire for
tougher enforcement by enacting the Broadcast
Decency Enforcement Act of 2005, Pub. L. No. 109-235,

36
§ 2, 120 Stat. 491 (2006), amending 47 U.S.C. § 503(b),
to authorize increased forfeiture penalties by an order
of magnitude $32,500 to $325,000. The decimal point
movement is a powerful motivator.

Of course, we expect agencies to respect congres-
sional directives, but the agency must still conform
its actions to the rule of law. Since Congress cannot
direct how the law should be enforced, see Bowsher v.
Synar
, 478 U.S. 714 (1986), the Commission is owed
no deference for being responsive to Congress’s wish-
es or directives on that score. And quite apart from
separation of powers principles, the First Amendment
allows no deference to Congress or the FCC on mat-
ters implicating direct regulation of speech content.
Sable, 492 U.S. at 129.

If political pressure from Congress does not
justify the Commission’s enforcement actions, neither
does the clamor of public groups. In fact, the louder
the clamor, the greater the need for First Amendment
protection. It would be an impoverished First
Amendment indeed that accommodated every public
agitation for laws designed to suppress free speech in
the name of protecting the morals of young people.
See, e.g., Butler, 352 U.S. at 381 (rejecting ban of
material “tending to incite minors to violent or de-
praved or immoral acts, manifestly tending to the
corruption of the morals of youth”); see also Playboy,
529 U.S. at 253 (when the government acts to protect
children, it must do so “in a way consistent with First
Amendment principles”).
----------------- ♦ -----------------

37

CONCLUSION


In 1983, Ithiel de Sola Pool, a distinguished
political scientist and student of communications law,
described Pacifica as a “legal time bomb” that would
explode into “radical censorship.” ITHIEL DE SOLA
POOL, TECHNOLOGIES OF FREEDOM 134 (1983). Inde-
cency regulation was then in its infancy, and the
Commission’s enforcement policy in the immediate
aftermath of Pacifica seemed to render such predic-
tions hyperbole. As it happened, Professor Pool was
prescient, in ways that those of us who were involved
in indecency regulation in its infancy did not appreci-
ate at the time. This case is merely one example of
what Pool predicted.

The indecency doctrine this Court approved in
Pacifica has become an intolerable threat to free
speech. The court below concluded with the observa-
tion that perhaps the Commission could craft an
indecency doctrine that would pass constitutional
muster – despite its conspicuous failure to do so.
However, we see no hope of reviving the doctrine that
the Court saw before it in Pacifica.

For one thing, technology has destroyed any
basis for censorial controls aimed only at broadcast-
ing. Broadcasting is no longer unique, and it is time
for the Court to bring its views of the electronic media
into alignment with contemporary technological and
social reality.

For another, the history of its enforcement shows
the practical impossibility of containing it within

38
acceptable boundaries. What began as a limited tool
for reining in a small number of provocative broad-
cast personalities and irresponsible licensees has
become a rallying cry for a revival of Nineteenth
Century Comstockery. Mindful of this enforcement
history the court below did not limit its decision to
“fleeting expletives.” This Court should not do so
either. It should overturn Pacifica as an ill-
considered, but in any case obsolescent, precedent,
adherence to which puts the Court on a future course
“that is sure error.” Citizens United, 130 S. Ct. at 912.
Respectfully submitted,
MARK FOWLER
TIMOTHY K. LEWIS
JERALD FRITZ
Counsel of Record
HENRY GELLER
CARL A. SOLANO
GLEN O. ROBINSON
NANCY WINKELMAN
KENNETH G. ROBINSON, JR.
MARIEKE T. BECK-COON
NEWTON N. MINOW
SCHNADER HARRISON
SEGAL & LEWIS LLP
1600 Market St., Suite 3600
Philadelphia, PA 19103
(215) 751-2000
tlewis@schnader.com
November 9, 2011

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