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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
_____________________________________________
Federal Communications Commission, Et Al.,
Petitioners,
v.

ABC, Inc. Et Al.,
Respondents
___________________________________________
On Writ of Certiorari to the
United States Court Of Appeals
for The Second Circuit
__________________________________________
AMICI CURIAE BRIEF OF THE THOMAS
JEFFERSON CENTER FOR THE PROTECTION
OF FREE EXPRESSION AND THE MEDIA
INSTITUTE IN SUPPORT OF RESPONDENTS

J. Joshua Wheeler*
The Thomas Jefferson Center For
The Protection Of Free Expression
400 Worrell Drive
Charlottesville, Va. 22911
434-295-4784
*Counsel Of Record for Amicus

i


TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES .................................... iv
INTEREST OF AMICI CURIAE .............................. 1
ARGUMENT ............................................................. 3
I. FCC V. Pacifica, And By Extension 18
U.S.C. § 1464, Should Be Invalidated
Because They Violate The First
Amendment. ....................................................... 3
A. Pacifica Impermissibly Created A
Novel Category Of Unprotected
Speech ......................................................... 4
i. ―Indecent‖ Speech Cannot Be
Regulated As Such Under The
Stevens Standard Because It Is
Not A Historically-Recognized
Exception to First Amendment
Protection ............................................. 6
ii. This Court Has Declined To
Create Additional Categories Of
Unprotected Speech In Similar
Contexts. .............................................. 9
iii. The FCC‘s Current Regulatory
Scheme Is Not Consistent With
Time, Place, And Manner
Restrictions. ......................................... 9


ii

B. Overturning Pacifica Would Align
With This Court‘s Jurisprudence on
Stare Decisis And The First
Amendment. ............................................. 12
i. Stare Decisis Does Not Protect
Past Decisions That Violate Core
First Amendment Principles ............. 12
ii. The Justifications In Pacifica Are
No Longer Operative In Today‘s
Media Landscape ............................... 14
1. Most Viewers Have both
Cable And Broadcast
Television, Delegitimizing
The ―Pervasiveness‖
Argument In Pacifica ................ 15
2. The ―Captive Audience‖
Doctrine Has No
Applicability In The Context
Of Media Viewed Privately
In The Home. ............................. 16
3. Children Cannot Be
considered More Of A
Captive Audience In The
Broadcast Media Context
Than Any Other Technology ..... 18
4. Radio Listeners Can Listen
To Satellite Services And
Internet Radio On A
Multitude Of Devices ................ 20
C. More Narrowly Tailored Alternatives
Exist Than The FCC‘s Safe Harbor
Provision. .................................................. 21


iii

i. Playboy Provides The Operative
Framework For Analyzing The
FCC‘s Time-Based Content
Censorship ......................................... 22
ii. The V-Chip Now Places
Broadcast Television On Equal
Footing With Cable And Satellite ..... 24
II. Even If Pacifica Is Retained, The FCC‘S
Current Indecency Enforcement Regime
Unconstitutionally Chills Protected
Speech. .............................................................. 26
A. The FCC‘s Vague Indecency
Standards Chill Speech That Is
Undeniably Protected by the First
Amendment. ............................................. 27
B. The FCC‘s Erratic Enforcement
Regime Validates This Court‘s
Concerns About Vesting
Administrative Agencies with
Unrestricted Regulatory Discretion
Over Protected Expressive Activities. ..... 30
CONCLUSION ........................................................ 34


iv


TABLE OF AUTHORITIES

Page(s)
CASES
Austin v. Michigan Chamber of Commerce,
494 U.S. 652 (1990) ..................................... 13, 14
Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963) ............................................. 31
Blount v. Rizzi,
400 U.S. 410 (1971) ........................................... 31
Brandenburg v. Ohio,
395 U.S. 444 (1969) ............................................. 4
Brown v. Entm‘t Merchants
Ass‘n, 564 U.S. ____,
131 S.Ct. 2729 (2011) ........................... 3, 4, 9, 19
Chaplinsky v. New Hampshire,
315 U.S. 568 (1942) ......................................... 4, 7
Citizens United v. Fed. Election
Comm‘n, 558 U.S. ____,
130 S.Ct. 876 (2010) .................................. passim
City of Lakewood v. Plain Dealer Publg. Co.,
486 U.S. 750 (1988)…………………………… .... 31
Cohen v. California,
403 U.S. 15 (1971) ................................... 6, 16, 18
Cox v. New Hampshire,
312 U.S. 569 (1941) ........................................... 10
Dirks v. SEC,
463 U.S. 646 (1983) ........................................... 32


v

Erznoznik v. Jacksonville,
422 U.S. 205 (1975) ........................................... 17
FCC v. Fox Television Stations,
556 U.S. 502 (2009) ............................................. 1
FCC v. Pacifica Foundation,
438 U.S. 726 (1978) ................................... passim
Fed. Election Com‘n v. Wisconsin Right to
Life, Inc, 551 U.S. 449 (2007) ............................ 13
Fox Television Stations v. FCC,
613 F.3d 317 (2nd Cir. 2010) ............................... 1
Ginsberg v. New York,
390 U.S. 629 (1968) ......................................... 7, 8
Glidden Co. v. Zdanok,
370 U.S. 530 (1962) ........................................... 13
Grayned v. City of Rockford,
408 U.S. 104 (1972) ........................................... 27
Helvering v. Hallock,
309 U.S. 106 (1940) ........................................... 13
Interstate Circuit, Inc., v. City of Dallas,
390 U.S. 676, 689 (1968) ..................................... 8
Jenkins v. Georgia,
418 U.S. 153 (1974) ............................................. 7
Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495 (1952) ............................................. 6
McDonald v. Chicago,
130 S. Ct. 3020 (2010......................................... 13
Miller v. California,
413 U.S. 15 (1973) ..................................... passim



vi

New York v. Ferber, 458 U.S. 747 (1982) ................ 4
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ............................................. 4
Payne v. Tennessee,
501 U.S. 808 (1991) ........................................... 13
Reno v. ACLU,
521 U.S. 844 (1997) ........................... 6, 17, 19, 30
Renton v. Playtime Theaters,
475 U.S. 41, 54, 48 (1986) ................................. 10
Smith v. California,
361 U.S. 147 (1960) ........................................... 31
Snyder v. Phelps,
131 S. Ct. 1207 (2011) ....................................... 17
United States v. Am. Library Assoc.
539 U.S. 194 (2003) ........................................... 26
United States v. Playboy Entm‘t Group,
529 U.S. 803, 815 (2000) ........................... passim
United States v. Stevens,
559 U.S.____; 130 S. Ct. 1577 (2010) .............. 3, 5
Watts v. United States,
394 U.S. 705 (1969) ............................................ 4
Young v. Am. Mini Theatres, Inc.,
427 U.S. 50, 52 (1976) ...................................... 10
CONSTITUTIONAL PROVISIONS AND STATUTES
First Amendment ............................................ passim
2 U.S.C. § 441b ........................................................ 32
18 U.S.C. § 1464 .................................................. 3, 29


vii

Telecommunications Act of 1996, §505, Pub. L.
104-104, 110 Stat. 136, 47 U.S.C. § 561
(1994) ................................................................. 21
OTHER AUTHORITIES
Citizens United v. Fed. Election Comm‘n, No.
08-205, 2009 WL 6325467, Tr. of Oral
Argument, at *65-66 (Sept. 9, 2009) ................ 32
WPBN/WTOM License Subsidiary, Inc.,
15 FCC Rcd. 1838 (2000) ................................... 33
Industry Guidance on Communication‘s Case
Law Interpreting 18 U.S.C. § 1464 &
Enforcement Policies Regarding Broadcast
Indecency, 16 F.C.C.R. 7999 (2001) .................. 29
In re Complaints Against Various Broad.
Licensees Regarding Their Airing of the
―Golden Globe Awards‖ Program,
19 F.C.C.R. 4975 (2004) .................................... 29
Complaints Against Various Televisions
Licensees Regarding Their Broadcast on
November 11, 2004 of the ABC‘s Television
Network‘s Presentaiton of the Film Saving
Private Ryan, 20 FCC Rcd. 4507 (2005) ........... 33
In the Matter of Annual Assessment of the
Status of Competition in the Market for the
Delivery of Video Programming,
21 F.C.C.R. 2503 (2006) .................................... 15
Complaints Regarding Various Television
Broadcasts Between February 2, 2002 and
March 8, 2005, Notices of Apparent
Liability and Memorandum Opinion and
Order, 21 FCC Rcd. 2664 (2006) ....................... 33


viii

Complaints Against Various Television
Licensees Concerning Their February 25,
2003 Broadcast of the Program ―NYPD
Blue,‖ Notice of Apparent Liability for
Forfeiture, 23 FCC Rcd. 1596 (2008). ............... 33
Federal Communications Commission,
http://www.fcc.gov/guides/v-chip-putting-
restrictions-what-your-children-watch (last
visited November 8, 2011) .......................... 24, 25
Securities and Exchange Commission, Annual
Report Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, at 22,
http://files.shareholder.com/
downloads/NFLX/1497281522x0x460274/17
454C5B-3088-48C7-957A-
B5A83A14CF1B/132054ACL.PDF. ................... 15
Brian Stelter, Nielsen to Add Online Views to
Its Ratings, The New York Times
(December 1, 2009),
http://www.nytimes.com/2009/12/02/">http://www.nytimes.com/2009/12/02/
business/media/02nielsen.html. ........................ 16
Paul Farhi, ―PBS to Offer Bleeped Version of
Ken Burns Documentary,‖available at
http://www.washingtonpost.com/wpdyn/con
tent/article/2007/08/30/AR2007083001945.
html .................................................................... 28
Daren Fonda, The Revolution in Radio, Time
(April 11, 2004http://www.time.com/time/">), http://www.time.com/time/
magazine/ article/0,9171,610082,00.html. ........ 20


ix

MG Siegler, You are on Pandora: Service Hits
60 Million Listeners, Adding Users Faster
Than Ever, Techcrunch (July 21, 2010),
http://techcrunch.com/ 2010/07/21/pandora-
stats/.. ................................................................. 21
National Cable and Telecommunications
Association, Basic Video Consumers 1975-
2010http://www.ncta.com/Stats/">, http://www.ncta.com/Stats/
BasicCableSubscribers.aspx.. ........................... 15
2,000,000 Pandora iPhone users!!, Pandora
Blog (December 2, 2008),
http://blog.pandora.com/pandora/
archives/2008/12/2000000-pandora.html.. ....... 21


1

STATEMENTS OF INTEREST OF AMICI CURIAE1
The Thomas Jefferson Center for the
Protection of Free Expression is a nonprofit,
nonpartisan organization located in Charlottesville,
Virginia. Founded in 1990, the Center has as its sole
mission the protection of free speech and press. The
Center has pursued that mission in various forms,
including the filing of amicus curiae briefs in this
and other federal courts, and in state courts around
the country. The Center is familiar with the issues
presented in this appeal having filed as amici curiae
when this matter was previously before this Court,
FCC v. Fox Television Stations, 556 U.S. 502 (2009)
and when it was before the United States Court of
Appeals for the Second Circuit, Fox Television
Stations v. FCC, 613 F.3d 317 (2nd Cir. 2010).
The Media Institute is an independent,
nonprofit research organization located in Arlington,
Va. Through conferences, publications, and filings
with courts and regulatory bodies, the Institute
advocates a strong First Amendment, a competitive

1 Pursuant to S. Ct. R. 37.6, the amici state that 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. Brit Hume, a Trustee of the Thomas Jefferson
Center and an employee of one of the parties, took no part
in the decision to file in this case, or in the preparation
and submission of this brief. No person other than amici
curiae, their members, or their counsel made a monetary
contribution to its preparation or submission. The parties‘
written consent to the filing of amicus curiae briefs is on
file with the court.



2

communications industry, and journalistic
excellence. The Institute has participated as amicus
curiae in numerous court proceedings, including
cases before the United States Supreme Court and
federal courts of appeal.





3

ARGUMENT
I.
FCC V. Pacifica, And By Extension 18 U.S.C.
§ 1464, Should Be Invalidated Because They
Violate The First Amendment.

It is a hallmark of First Amendment law that
expression is presumptively protected unless it falls
within one of several carefully prescribed exceptions.
Brown v. Entm‘t Merchants Ass‘n, 564 U.S. ____; 131
S.Ct. 2729, 2733 (2011). ―Indecent‖ expression that
falls short of obscenity has never been one of these
exceptions. Nevertheless, this Court in FCC v.
Pacifica Foundation, 438 U.S. 726 (1978), sanctioned
the content-based regulation of such speech when it
occurs over broadcast media. In doing so, the Court
relied upon statutory language that establishes
criminal and civil punishments for anyone who
utters ―indecent . . . or profane language by means of
radio communication.‖ 18 U.S.C. § 1464. Such
regulation of protected First Amendment speech
lacks historical precedent and is unwarranted by any
prominent component of our nation‘s legal traditions.
It thus cannot be justified under the standard
endorsed recently by this Court in United States v.
Stevens for evaluating government attempts to
expand the long-recognized categorical exceptions to
First Amendment protections of speech and press.
559 U.S. ____; 130 S. Ct. 1577 (2010).

Given the holding in Stevens, Pacifica should
be reversed in its entirety, and those parts of 18
U.S.C. § 1464 concerning ―indecent or profane
language‖ should be nullified. Although cautious
about lightly overturning its own precedents, this
Court has repeatedly emphasized that stare decisis is
but a pragmatic policy of judicial restraint. It cannot


4

be used to shield past decisions that infringe clear
constitutional commands. Pacifica was such a
decision, and amici respectfully pleads that the Court
use this opportunity to rectify a troubling
discrepancy in its First Amendment jurisprudence.
A. Pacifica Impermissibly Created A Novel
Category Of Unprotected Speech.

Indecent but non-obscene expression is
protected by the First Amendment. This principle
applies even to speech that is ―patently offensive‖ in
its reference to ―sexual and excretory activities and
organs.‖ Pacifica, 438 U.S. at 732 (quoting 56
F.C.C.2d 94, 96). It does not belong to those ―well-
defined and narrowly limited classes of speech, the
prevention and punishment of which have never
been thought to raise any Constitutional problem.‖2
Chaplinsky v. New Hampshire, 315 U.S. 568, 572-73
(1942). In adopting this historical approach, the
Court firmly rejected a ―simple balancing test that
weighs the value of a particular category of speech
against its social costs and then punishes that
category of speech if it fails the test.‖ Brown, 131
S.Ct. at 2734 (quoting Stevens, 130 S.Ct. at 1585)
(internal quotation marks omitted).

2 This Court has addressed the forms of non-
protected speech in a number of prior decisions. See
Miller v. California, 413 U.S. 15, 24 (1973) (obscenity);
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
(defamation); Brandenburg v. Ohio, 395 U.S. 444, 447
(1969) (per curiam) (speech inciting lawless activity);
Watts v. United States, 394 U.S. 705, 708 (1969) (per
curiam) (―true threats‖); New York v. Ferber, 458 U.S. 747
(1982) (child pornography).


5


In permitting the censorship of ―indecent‖
broadcast expression, the majority in Pacifica
rejected the traditional categorical approach later
reaffirmed in Stevens. See Pacifica, 438 U.S. at 763
(―[A]ll members of this Court agree that the [speech
at issue] . . . does not fall within one of the categories
of speech . . . that is totally without First
Amendment protection.‖) (Brennan, J., dissenting). It
sanctioned the FCC order at issue despite the fact it
proscribed otherwise protected expression – that is,
speech beyond what was strictly obscene under
Miller v. California. See Pacifica, 438 U.S. at 740-41
(―Prurient appeal is an element of the obscene, but
the normal definition of ‗indecent‘ merely refers to
nonconformance with accepted standards of
morality.‖). The Court justified this departure from
tradition by identifying certain unique qualities of
the broadcast medium. Id. at 748-50.

While both respondents and amici (see Part
I.B.ii, infra) argue that these ―unique qualities‖ have
effectively eroded over time, the doctrinal premise of
the Pacifica decision is itself erroneous. The medium
in which speech occurs does not determine the
standard by which its content-based censorship is
evaluated. Whether such regulation survives
scrutiny turns on whether the speech belongs to a
historically-recognized categorical exception to the
First Amendment. Stevens made this point
undeniably clear. See Stevens, 130 S.Ct. at 1584
(―From 1791 to the present . . . the First Amendment
has permitted restrictions upon the content of speech
in a few limited areas and has never include[d] a
freedom to disregard these traditional limitations.‖)
(quoting Simon & Schuster, Inc. v. Members of N.Y.
State Crime Victims Bd., 502 U.S. 105, 127 (1991)


6

(Kennedy, J., concurring)) (internal quotation marks
omitted).
The Pacifica Court cited Joseph Burstyn, Inc.
v. Wilson, 343 U.S. 495, 502-03 (1952), to support its
conclusion that ―each medium of expression presents
special First Amendment problems.‖ Pacifica, 438
U.S. at 748. In Burstyn, this Court invalidated a
licensing scheme that permitted state administrative
officials to ban motion picture films that they
determined to be ―sacrilegious.‖ 343 U.S. at 497.
Although the Court noted that ―[e]ach method [of
expression] tends to present its own peculiar
problems,‖ it immediately concluded that ―the basic
principles of freedom of speech and the press, like the
First Amendment‘s command, do not vary. Those
principles . . . make freedom of expression the rule.‖
Id. at 503. This holding undermines the media-
centric premise of the Pacifica decision, and it
reflects the categorical standard ratified by this
Court in Stevens. It also accords with other recent
decisions holding that First Amendment strictures
on content discrimination do not fluctuate with the
form of media being employed. See, e.g., Reno v.
ACLU, 521 U.S. 844 (1997) (internet).
i. ―Indecent‖ Speech Cannot Be
Regulated As Such Under
The Stevens Standard Because It
Is Not A Historically-Recognized
Exception to First Amendment
Protection.

This Court has stated emphatically that ―most
situations where the State has a justifiable interest
in regulating speech will fall within one or more of
the various established exceptions.‖ Cohen v.


7

California, 403 U.S. 15, 24 (1971). ―Indecency‖ and
―profanity‖ are not among the list of such exceptions.
While ―lewd‖ and ―profane‖ are among the
unprotected categories suggested by Chaplinsky, this
Court‘s holdings in obscenity cases have clarified
that lewd and profane materials are to be prohibited
only when they satisfy the requirements of the Miller
standard for obscenity. In deciding whether a work is
obscene, the triers of fact must consider: ―(a) whether
the average person, applying contemporary
community standards would find that the work,
taken as a whole, appeals to the prurient interest; (b)
whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by
the applicable state law; and (c) whether the work,
taken as a whole, lacks serious literary, artistic,
political, or scientific value.‖ 413 U.S. at 24 (internal
citations omitted). This Court has made it clear that
sexually explicit material does not lose its protected
status unless it meets the Miller standards for
obscenity. Jenkins v. Georgia, 418 U.S. 153, 161
(1974). The FCC‘s regulatory scheme cannot,
therefore, be justified by the existence of obscenity
law or by historical references to censorship of ―lewd‖
materials.
Prior to its decision in Miller, the Supreme
Court held that a state may consider the age of the
potential viewer in determining whether the
material is obscene when limiting distribution of
obscene material to minors. Ginsberg v. New York,
390 U.S. 629 (1968). This holding was unaltered by
Miller, and the Miller/Ginsberg holdings are now key
when assessing the constitutionality of any
governmental effort to restrict or prohibit
distribution of obscene materials to minors. The


8

Miller/Ginsberg standard, therefore, should be the
constitutional limit of restrictions on materials that
merely may reach minors, absent factors that would
allow such a restriction to pass strict scrutiny.
The Ginsberg ruling was strikingly and
specifically limited in scope. Rather than establish
another separate and distinct exception to First
Amendment protection, the Court allowed the
regulation of the materials in question because they
conformed to the standards of a previously defined
exception – obscenity – as specifically applied to
minors. Ginsberg, 390 U.S. at 636. In Ginsberg‘s
companion case decided the same day, Interstate
Circuit, Inc., v. City of Dallas, the majority noted,
―The permissible extent of vagueness is not directly
proportional to, or a function of, the extent of the
power to regulate or control expression with respect
to children.‖ 390 U.S. 676, 689 (1968). With this
caveat, Interstate effectively placed a limit on
Ginsberg similar to Jenkins‘s limitation on Miller,
i.e., only by strictly complying with Ginsberg may
materials that are not obscene for adults be deemed
obscene for minors. Regulations on speech may not
be left vague with the rationale that this will better
protect minors.
The materials prohibited by the FCC do not
conform to the Miller/Ginsberg standard. Fleeting
expletives and nudity must be considered within the
context of a television program which otherwise has
artistic and political value to its viewers, and which
as a whole does not appeal to the prurient interest of
a minor. Although arguably there exists the same
interest in shielding children from harmful speech,
Ginsberg and Interstate Circuit make clear the fact


9

that this interest, absent satisfaction of the Miller
standards as applied to children, is not sufficient to
render speech unprotected. The FCC‘s regulations
therefore fall outside the categorical exceptions to
First Amendment protection.
ii. This Court Has Declined To
Create Additional Categories Of
Unprotected Speech In Similar
Contexts.
This Court has recently declined to create an
additional category of unprotected speech because of
its possible harmful effects to children. In Brown,
this Court was urged to establish portrayals of
violence as a new category of unprotected speech and
ruled that the ban on sales of violent video games to
minors could not survive strict scrutiny. 131 S. Ct.
2729. The regulations at issue here must pass the
same scrutiny. This case involves speech that is
certainly protected outside of the broadcast context
and, as discussed below, there remain no valid
justifications for treating broadcast media differently
from other media.
iii. The FCC‘s Current Regulatory
Scheme Is Not Consistent
With Time, Place, And Manner
Restrictions.
The Pacifica analysis emphasizes that the
FCC is not engaging in censorship of indecent
broadcasts but merely ―channeling‖ such broadcasts
to a time period in which it is less likely that children
will be in the audience. See 438 U.S. at 731-32, 750.
In this regard, the analysis resembles a time, place,
or manner regulation of speech but for one critical


10

difference: the constitutionality of such regulations is
dependent upon their neutrality with respect to the
content of speech. See Cox v. New Hampshire, 312
U.S. 569, 578 (1941). Pacifica, by contrast, sustains
the regulation of speech specifically because of its
content.
Analogy of Pacifica‘s ―channeling‖ to the
zoning of adult-oriented businesses to particular
location is similarly flawed because of the former‘s
focus on content. In Young v. American Mini
Theatres, Inc., for example, the city of Detroit
amended its ―Anti-Skid Row Ordinance‖ to include
the restriction that no adult businesses could be
located within 1,000 feet of any two existing adult
businesses or within 500 feet of any residential area.
427 U.S. 50, 52 (1976) (plurality opinion). While
conceding that the adult establishments were
engaged in some protected speech, this Court
ultimately upheld the restrictions as valid uses of the
city‘s zoning powers, noting:
The Common Council‘s determination
was that a concentration of ‗adult‘ movie
theaters causes the area to deteriorate
and become a focus of crime, effects
which are not attributable to theaters
showing other types of films. It is this
secondary effect which these zoning
ordinances attempt to avoid, not the
dissemination of ‗offensive‘ speech.
Id. at 71 n.34 (emphasis added). In Renton v.
Playtime Theaters, this Court also held that a zoning
ordinance represented ―a valid government response‖
to the ―admittedly serious problems created by adult
theaters,‖ and that the ordinance is ―completely


11

consistent with our definition of ‗content-neutral‘
speech regulations as those that ‗are justified
without reference to the content of the regulated
speech.‘‖ 475 U.S. 41, 54, 48 (1986) (citations
omitted).

As this Court declared in United States v.
Playboy Entertainment Group, any attempt to apply
the secondary effects rationale to content-based
restrictions on protected speech is a fruitless effort.
529 U.S. 803, 815 (2000) (stating emphatically that
content-based restrictions must be subject to strict
scrutiny). ―We have made clear that the lesser
scrutiny afforded regulations targeting the secondary
effects of crime or declining property values has no
application to content-based regulations targeting
the primary effects of protected speech. The statute
now before us burdens speech because of its content;
it must receive strict scrutiny.‖ Id. (citations
omitted). Because of the concededly content-based
nature of the FCC‘s indecency regime,3 the secondary
effects doctrine has no applicability and strict
scrutiny treatment cannot be avoided on these
grounds.

3 ―So long as the federal government must exercise
selectivity in allocating limited spectrum among
numerous licensees (and broadcasters benefit from the
use of a valuable public resource without charge), it may
constitutionally require licensees to accept content-based
restrictions that could not be imposed on other
communications media.‖ (Pet. Br. 43-44)



12

B. Overturning Pacifica Would Align With
This Court‘s Jurisprudence on Stare
Decisis And The First Amendment.

Because Pacifica deviates so drastically from
established First Amendment precedent, it should be
overruled in its entirety. Amici fully understands the
importance of stare decisis, and it recognizes that
this Court‘s past decisions are ―to be respected unless
the most convincing of reasons demonstrates that
adherence to it puts [the Court] on a course that is
sure error.‖ Citizens United v. Fed. Election Comm‘n,
558 U.S. ____, 130 S.Ct. 876, 911-12 (2010).
Nevertheless, this Court has made it equally clear
that it will not tolerate precedent that infringes upon
essential constitutional liberties, particularly in the
arena of the First Amendment. Pacifica sets just
such a precedent. Moreover, the practical
foundations that seemingly supported the decision
over thirty years ago have eroded so much that its
reasoning can no longer be credibly defended.
i. Stare Decisis Does Not Protect
Past Decisions That Violate Core
First Amendment Principles.

Stare decisis may not be employed by the
Government to protect a decision that stands as an
affront to free speech and an otherwise consistent
line of interpretation of the First Amendment for
several decades. In determining whether this Court
should adhere to the principle of stare decisis, the
relevant concerns are the continued workability of
the precedent, its antiquity, the reliance interests at
stake, and the quality of the decision‘s reasoning.
Citizens United, 130 S.Ct. at 912 (quoting Montejo v.
Louisiana, 556 U.S. 778, ____; 129 S.Ct. 2079, 2088-


13

89 (2009)). Additionally, this Court has examined
whether ―experience has pointed up the precedent‘s
shortcomings.‖ Citizens United, 130 S.Ct. at 912
(quoting Pearson v. Callahan, 555 U.S. 223, ____; 129
S.Ct. 808, 816 (2009)).

Stare decisis is not ―an inexorable
command . . . rather, it is a principle of policy and not
a mechanical formula of adherence to the latest
decision.‖ Helvering v. Hallock, 309 U.S. 106, 119
(1940). Moreover, this Court has a ―considered
practice‖ not to apply this principle of policy ―as
rigidly in constitutional as in nonconstitutional
cases.‖ Glidden Co. v. Zdanok, 370 U.S. 530, 543
(1962). This is because ―correction through legislative
action is practically impossible‖ in the former case.
Payne v. Tennessee, 501 U.S. 808, 828 (1991).
Ultimately, stare decisis is only an ―adjunct of [the
Court‘s] duty as judges to decide by [their] best lights
what the Constitution means.‖ McDonald v. Chicago,
130 S. Ct. 3020, 3063 (2010) (Thomas, J.,
concurring).

If anywhere, this notion is particularly
applicable in matters concerning the First
Amendment. ―This Court has not hesitated to
overrule decisions offensive to the First
Amendment.‖ Citizens United, 130 S.Ct. at 912
(quoting Fed. Election Com‘n v. Wisconsin Right to
Life, Inc, 551 U.S. 449, 500 (Scalia, J., concurring)).
Notably, First Amendment cases do not concern
property or contractual rights, where reliance
interests are most at stake. Wisconsin Right to Life,
551 U.S. 502 (Scalia, J., concurring). Indeed, this
point can be easily observed in this Court‘s recent
decision in Citizens United to reverse Austin v.


14

Michigan Chamber of Commerce, 494 U.S. 652
(1990), which had existed undisturbed for twenty
years by the time it was overruled. Quite clearly, this
Court has not been circumspect in rectifying
disparities between its precedent and core First
Amendment protections of free speech and press in
favor of the latter.
ii. The Justifications In Pacifica Are
No Longer Operative In Today‘s
Media Landscape.

This Court should overturn Pacifica because the
justifications for that ruling are no longer operative
in today‘s media landscape. Time and technology
have undermined whatever logical support the
holding merited over three decades ago. The
dominant position of licensed broadcasting has been
steadily eroded by ever-expanding options in
television viewing. The impact of licensed
broadcasting‘s content on national mores and values
has therefore diminished accordingly. Moreover, the
assumption that licensed broadcasters are uniquely
capable of inflicting harm on unwary young listeners
and viewers has long since been undermined if not
wholly repudiated.
In Pacifica, this Court noted that broadcasted
speech has received the most restricted First
Amendment protection. Pacifica, 438 U.S. at 731-32,
748. It justified this limitation on two grounds:
―[f]irst, the broadcast media have established a
uniquely pervasive presence in the lives of all
Americans,‖ and ―[s]econd, broadcasting is uniquely
accessible to children, even those too young to read.‖
Id. at 748-49. Neither of these reasons has withstood


15

the test of time and neither are rational restrictions
in today‘s media landscape.
1. Most viewers Have Both
Cable And Broadcast
Television, Delegitimizing
The ―Pervasiveness‖
Argument In Pacifica.
Although broadcast media still constitutes a
pervasive presence in the lives of some Americans, it
can no longer be considered ―unique‖ and no longer
holds up as a justification for specialized limitations
on free speech. In 2005, only 14% of American
television households limited themselves exclusively
to broadcast stations. In the Matter of Annual
Assessment of the Status of Competition in the
Market for the Delivery of Video Programming, 21
F.C.C.R. 2503, 2508 (2006). Of the 109.6 million U.S.
households that had cable services in their homes in
2005, 69.4% of those homes had some form of cable
television service. Id. at 2506. Since this Court‘s 1978
Pacifica decision, the number of cable subscribers
has grown from 9.4 million users to 59.8 million in
2010 – a six fold increase in the number of
subscribers.4 Additionally, streaming internet video
services like Netflix and Amazon Video on Demand
(the former boasting over 20 million subscribers
worldwide5), and network television streaming video

4 National Cable and Telecommunications
Association, Basic Video Consumers 1975-2010,
http://www.ncta.com/Stats/BasicCableSubscribers.aspx.
5 Securities and Exchange Commission, Annual
Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, at 22,http://files.shareholder.com/"> http://files.shareholder.com/


16

websites6 have continued to draw a large number of
consumers.
These numbers represent a significant
departure from the broadcast media-dominated
landscape that existed during the time of Pacifica
and undermine the very notion that broadcast
television is unique in its pervasiveness. With the
rise of digital cable, satellite television, and video on
demand options, television media is available for
consumption in a wider variety of formats than at
any point in history. The once-unique character of
broadcast television has become overshadowed by the
wide variety of alternative media delivery options,
eliminating whatever weak justification remained for
treating broadcast media differently.
2. The ―Captive Audience‖
Doctrine Has No
Applicability In The
Context Of Media Viewed
Privately In The Home.
This Court stated in Cohen that the ―mere
presumed presence of unwitting listeners or viewers
does not serve automatically to justify curtailing all
speech capable of giving offense.‖ Cohen v.

downloads/NFLX/1497281522x0x460274/17454C5B-3088-
48C7-957A-B5A83A14CF1B/132054ACL.PDF.
6 Perhaps an admission of the rising dominance of
internet television streaming, the Nielsen ratings agency
added internet views to its ratings numbers starting in
2009. Brian Stelter, Nielsen to Add Online Views to Its
Ratings, The New York Times (December 1, 2009),
http://www.nytimes.com/2009/12/02/business/media/02nie
lsen.html.


17

California, 403 U.S. at 21. Although this statement
was limited at the time to ―captives‖ outside of the
home, the distinction is today superficial. Other
information sources, such as cable television and
internet, also invade the home but content-based
regulation is forbidden under the First Amendment.
―We are persuaded that the CDA lacks the precision
that the First Amendment requires when a statute
regulates the content of speech.‖ Reno v. ACLU, 521
U.S. 844, 879 (1997).

This Court also failed to apply the captive
audience doctrine with regard to media in Erznoznik
v. Jacksonville, where it struck down an ordinance
regulating drive-in movies. 422 U.S. 205 (1975). As
the ordinance only targeted nudity in these movies, it
discriminated solely on the basis of content. The
Court held that the media was not ―so obtrusive as to
make it impossible for an unwilling individual to
avoid exposure to it‖ and stated that ―the offended
viewer readily can avert his eyes.‖ Id. at 212. The
same concept applies to broadcast media. Offended
individuals are free to avert their eyes, turn off the
television or radio, or avoid bringing a television or
radio into their home in the first place.

Most recently, the Court denied use of the
captive audience doctrine in Snyder v. Phelps, a case
involving the First Amendment rights of protestors
at the funeral of a marine who was killed in the line
of duty. 131 S. Ct. 1207 (2011). Describing the
extremely restricted and limited use of the doctrine,
the Court stated that it has been applied ―only
sparingly to protect unwilling listeners.‖ Id. at 1220
(emphasis added). If a man witnessing the protest of
his son‘s funeral is not an unwilling listener, then


18

watchers and listeners of television and radio who
deliberately turn on and choose the programs that
they hear are certainly not unwilling either.

Televisions, like any other information source,
are voluntarily brought into the home and are turned
on and off at the viewer‘s discretion. Parents can
control their children‘s use of broadcast television in
the same way that they can control use of cable
television, internet, video games, literature, and
countless other forms of media choices. In Cohen, the
Court limited governmental protection from offensive
speech to contexts with ―substantial privacy
interests.‖ Cohen, 403 U.S. at 21. Because of the new
pervasiveness of other types of media, these
substantial privacy interests no longer exist for
television and radio broadcasts.
3. Children Cannot Be
Considered More Of A
Captive Audience In The
Broadcast Media Context
Than Any Other
Technology.

These changes in the comparative
pervasiveness of media have also affected the way
the Court should view the impact of accessibility to
young children. Although the Court in Pacifica
believed it was necessary to assist parents in their
―authority in their own household,‖ recent decisions
have indicated a departure from this paternalistic
view. Pacifica, 438 U.S. at 749 (quoting Ginsberg v.
New York, 390 U.S. 629). Although the Court
distinguished aspects of its Reno decision from
Pacifica in an effort to avoid diverging from
precedent, its statements regarding parental control


19

support a more modern view of the accessibility of
media to children. Reno v. ACLU, 521 U.S. 844, 866
(1997). In striking down the restrictions on the
internet, for example, this Court stated that ―neither
the parents‘ consent – nor even their participation –
in the communication would avoid the application of
the statute.‖ Id. at 865.

Most recently, in Brown v. Entertainment
Merchants Association, the Court stated:
[We] note our doubts that punishing
third parties for conveying protected
speech to children just in case their
parents disapprove of that speech is a
proper governmental means of aiding
parental authority. Accepting that
position would largely vitiate the rule
that ―only in relatively narrow and well-
defined circumstances may government
bar public dissemination of protected
materials to [minors].‖
131 S.Ct. 2729, 2740 (2011) (quoting Erznoznik, 422
U.S. 205, 212-13 (1975)). Although the Pacifica
holding attempted to mitigate its impact on free
speech by establishing a safe harbor zone between
10:00 PM and 6:00 AM, this is an antiquated system
that is not practical in today‘s society of webcasting
and digital video recorders. Not only do time zones
create difficulties in actually taking advantage of
this safe harbor, but technology allows children to
record and later watch programming regardless of
the hour it was originally broadcast thereby
effectively destroying the ―safe‖ harbor that existed
in 1978.


20

4. Radio Listeners Can Listen
to Satellite Services and
Internet Radio On A
Multitude of Devices.
With the rise of television as an alternative to
terrestrial radio broadcasts, radio‘s growth has
slowed in the last half century as compared to
television. With the advent of satellite and internet
streaming radio, however, new growth in radio
listenership has been dominated by these two new
forms. After signing ―shock jock‖ Howard Stern in
2004, Sirius satellite radio station saw a significant
increase in listeners, contributing to a nearly 500%
increase in subscriptions during the year of his
defection, and XM Radio similarly saw a 400% rise in
listeners that year.7 Similar to the cable television
subscription model, satellite radio services offer a
subscription service for a monthly fee, which comes
with access to a wider variety of channels and
services, and without the geographical limitations of
terrestrial radio stations.
In addition to these pay subscription services,
internet streaming radio companies like Pandora and
Spotify have created another avenue for radio
listeners to seek content. Pandora is a free,
advertisement-based service that allows users to
listen musical artists or genres of their choice
directly through the Pandora website or on their
mobile devices through a downloadable ―app.‖ These
kinds of internet streaming services have exploded in

7 Daren Fonda, The Revolution in Radio, Time
(April 11, 2004),http://www.time.com/time/magazine/"> http://www.time.com/time/magazine/
article/0,9171,610082,00.html.


21

popularity in recent years, with Pandora boasting
over 60 million total listeners in 20108 and over 2
million iPhone downloads by 2008.9 This shift from
terrestrial radio to satellite and internet radio has
delegitimized the pervasiveness justification in the
radio arena – similar to the shift from broadcast
television to cable television.
C. More Narrowly Tailored Alternatives
Exist Than The FCC‘s Safe
Harbor Provision
In United States v. Playboy Entertainment
Group, this Court struck down a provision of the
Telecommunications Act of 1996 which
―require[d] . . . sexually-oriented programming either
to [be] fully scramble[d]10 or otherwise fully
block[ed]‖ or confined to ―hours when children are
unlikely to be viewing . . . 10 p.m. and 6 a.m.‖ 529
U.S. 803, 806 (2000) (internal citations omitted).
Because scrambling did not always result in fully
blocking audio and video, cable operators felt that

8 MG Siegler, You are on Pandora: Service Hits 60
Million Listeners, Adding Users Faster Than Ever,
Techcrunch (July 21, 2010),http://techcrunch.com/"> http://techcrunch.com/
2010/07/21/pandora-stats/.
9 2,000,000 Pandora iPhone users!!, Pandora Blog
(December 2, 2008),http://blog.pandora.com/pandora/"> http://blog.pandora.com/pandora/
archives/2008/12/2000000-pandora.html.
10 "[T]he term 'scramble' means to rearrange the
content of the signal of the programming so that the
programming cannot be viewed or heard in an
understandable manner." Telecommunications Act of
1996, §505, Pub. L. 104-104, 110 Stat. 136, 47 U.S.C. §
561 (1994).


22

they had ―no practical choice‖ but to confine sexually
explicit programming to the allowable 8-hour time
period. Id. at 809. This Court affirmed the lower
court‘s decision that ―a regime in which viewers could
order signal blocking on a household-by-household
basis presented an effective, less restrictive
alternative,‖ and that therefore effectively
prohibiting cable operators from airing sexually
explicit material for sixteen daytime hours was
unconstitutional. Id. at 807.
In the instant case, this Court is presented
with a similar restriction on television programming
between 6 a.m. and 10 p.m. but the material
censored by the FCC is notably less explicit than the
content at issue in Playboy. Although the FCC
regulates broadcast television and not cable, the
distinction between the two that this Court
articulates in Playboy is no longer meaningful in
light of recent technological advances. (See Part
I.C.ii., infra). Therefore, this Court‘s consideration of
Playboy reflects the proper analysis of the issue now
before the Court. Because a less restrictive
alternative for blocking children‘s access to indecent
material exists today, the FCC‘s regulatory scheme
must be rejected in favor of the alternative.
i. Playboy provides the Operative
Framework For Analyzing
The FCC‘s Time-Based Content
Censorship.
In both the instant case and in Playboy, ―[t]he
overriding justification for the regulation is concern
for the effect of the subject matter on young viewers.‖
Id. at 811. This Court is unambiguous in its analysis:


23

As we consider a content-based
regulation, the answer should be clear:
The standard is strict scrutiny. This
case involves speech alone; and even
where speech is indecent and enters the
home, the objective of shielding children
does not suffice to support a blanket ban
if the protection can be accomplished by
a less restrictive alternative.
Id. at 814. Furthermore, ―When the purpose . . . of a
statute is to regulate speech by reason of its content,
special consideration or latitude is not accorded to
the Government merely because the law can
somehow be described as a burden rather than
outright suppression.‖ Id. at 826. Just as in Playboy,
the fact that television programming is left
uncensored between 10 p.m. and 6 a.m. does not
redeem the regulation.

This Court, therefore, should apply strict
scrutiny and consider alternative means to achieving
the government‘s goals. ―If a statute regulates speech
based on its content, it must be narrowly tailored to
promote a compelling Government interest. If a less
restrictive alternative would serve the Government‘s
purpose, the legislature must use that alternative.‖
Id. at 813. In Playboy, this less restrictive alternative
was § 504 of the Telecommunications Act, ―which
requires a cable operator, upon request by a cable
service subscriber . . . without charge, [to] fully
scramble or otherwise fully block any channel the
subscriber does not wish to receive.‖ Id. at 809-10
(internal citations omitted). This Court characterized
this option as the ―key difference between cable
television and the broadcasting media, which is the


24

point on which this case turns.‖ Id. at 815. While the
analysis of why restrictions on cable television fail
strict scrutiny is still valid, this particular distinction
– the key difference – no longer exists.
ii. The V-Chip Now Places
Broadcast Television On Equal
Footing With Cable and Satellite.

It is now appropriate to align treatment of
broadcast television with the current treatment of
cable television. Since 2000, the year of the Playboy
decision, the FCC has required all new televisions
with screens greater than 13‖ to include the V-chip.11
As the FCC describes on its website, ―[t]he V-chip
allows parents or other caregivers to block
programming on their televisions that they don‘t
want children to watch.‖ ―Putting Restrictions on
What Your Children Watch.‖ Ratings similar to that
of the Motion Picture Association of America
system12 are encoded into the television program,
allowing a parent to block whole channels or to block
certain programs based on ratings or sex, violence,
and language content. Id.

11 ―V-Chip – Putting Restrictions on What Your
Children Watch | FCC.gov,‖ Federal Communications
Commission, http://www.fcc.gov/guides/v-chip-putting-
restrictions-what-your-children-watch (last visited
November 8, 2011) (―Putting Restrictions on What Your
Children Watch‖).
12 The FCC‘s website lists and explains television-
specific ratings, such as TV-Y, TV-PG, and TV-MA, as
well as the ratings used for movies and established by the
Motion Picture Association of America (such as G, PG,
PG-13, and R), which are also programmed into V-chips.
―Putting Restrictions on What Your Children Watch.‖


25

The V-chip is precisely the ―digital technology
[that] may one day provide [a] solution‖ to the
imperfect scrambling system applied to sexually-
explicit cable networks. Playboy, 529 U.S. at 808. It
is a more precise version of the ―less restrictive
alternative‖ that resulted in the censoring provision
of Playboy being struck down. The V-chip allows
television to be tailored not only to minors, but also
to those just under the age of majority, or to younger
teenagers, or alternatively to young children.
―Putting Restrictions on What Your Children
Watch.‖ Additionally, the V-chip can be used
throughout the day, protecting children from
indecent programming even when they watch
television past the assumed bedtime of 10 p.m.
This Court acknowledged in Playboy that
neither the time restriction nor the scrambling
technology was perfect; there was ―the possibility
that a graphic image could have a negative impact on
a young child [and] it is hardly unknown for
[adolescents] to be unsupervised in front of the
television set after 10 p.m.‖ Playboy, 529 U.S. at 826.
Yet this Court concluded that more strict restrictions
on programming were not necessary and not
permissible under the First Amendment. Id. at 807.
The V-chip is thus a less restrictive and more
efficient mechanism than the FCC‘s blanket
prohibition on indecency between 6 a.m. and 10 p.m.
This Court has expressed a preference for
listeners exercising control over what speech they
receive, rather than the government placing
limitations on the distribution of speech. The V-chip
conforms to this preference, allowing users to easily
and consistently block indecent programming or, if


26

they prefer, to choose from the range of indecent
programming offered by networks. This ―enables the
Government to support parental authority without
affecting http://www.lexis.com/research/buttonTFLink?_m=0b6839016e3e1245bc8651306ad0480c&_xfercite=%3ccite%20cc%3d%22USA%22%3e%3c%21%5bCDATA%5b529%20U.S.%20803%5d%5d%3e%3c%2fcite%3e&_butType=4&_butStat=0&_butNum=231&_butInline=1&_butinfo=U.S.%20CONST.%20AMEND.%201&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLbVzt-zSkAA&_md5=a8b088155a4372186d6b0864e0564883">the First Amendment interests of speakers
and willing listeners — listeners for whom, if the
speech is unpopular or indecent, the privacy of their
own homes may be the optimal place of receipt.‖ Id.
at 815; see also United States v. Am. Library Assoc.
539 U.S. 194, 220 (2003) (Breyer, J., concurring)
(relying on the ease with which an adult can
overcome blocks on internet sites in concluding that
those blocks are constitutionally permitted).
The FCC‘s indecency regulation scheme is
content-based and must be subject to strict scrutiny.
In applying strict scrutiny in Playboy, this Court has
struck down regulation that was similar, but more
well-defined and targeted at speech that is arguably
more offensive or harmful to children. The
regulations at issue in this case, in contrast to
Playboy, involve a protected First Amendment
speech. The distinction between broadcast and cable
television is no longer meaningful and the V-chip
places broadcast television on equal footing with
cable and satellite. Therefore, this Court should
overturn Pacifica by the reasoning set forth by this
Court in Playboy.
II.
Even If Pacifica Is Retained, The FCC‘S
Current Indecency Enforcement Regime
Unconstitutionally Chills Protected Speech.

The FCC‘s current indecency standard is so
vague that broadcasters cannot reasonably predict
what speech the agency will censor. As a result,
broadcasters are forced to navigate through a maze
of inconsistent decisions, which inevitably leads to


27

the chilling of speech protected by the First
Amendment. E.g., Grayned v. City of Rockford, 408
U.S. 104, 108-109 (1972) (―Uncertain meanings
inevitably lead citizens to ‗steer far wider of the
unlawful zone‘ than if the boundaries of the
forbidden areas were clearly marked.‖) (quoting
Baggett v. Bullitt, 377 U.S. 360, 372 (1964) (internal
citations and alterations omitted)). Petitioners seek
to remedy this infirmity by enacting a ―policy of
forbearance.‖ Pet. Br. 31. In effect, the FCC asks that
broadcasters trust the agency to ―declin[e] to
sanction‖ them when material was not clearly
indecent. Id. Broadcasters, however, should not be
expected to rely upon the FCC‘s unregulated
discretion as guarantors of their First Amendment
rights.
A. The FCC‘s Vague Indecency Standards
Chill Speech That Is Undeniably
Protected by the First Amendment.

Industry practices under the FCC‘s current
indecency standard demonstrate the vagueness of
this regime. In 2007, award-winning filmmaker Ken
Burns directed a seven-part, 14 1/2-hour
documentary about World War II entitled The War.
This documentary, like many of Mr. Burns‘s other
films, was broadcast on PBS. The film included
former World War II soldiers speaking on camera
and, to be true to the archival material, included
profanity from the soldiers to describing the
hellishness of their combat experience. The soldiers


28

also explained the meaning of common military
euphemisms such as ―fubar.‖13

The FCC‘s vague indecency standards led
some PBS stations to air edited versions of The War.
These stations included WETA, a co-producer of Mr.
Burns‘s films which is based in Arlington, Virginia,
and WHUT, which is based out of Howard
University. In a telling quote, PBS‘s chief content
officer stated:
The core problem is, we don‘t really
know what the FCC will do with a
complaint because the guidelines aren‘t
clear. . . . We all feel as confident as we
can under the circumstances with the
‗Saving Private Ryan‘ decision. But I
still think if you‘re a general manager of
a station in a community somewhere in
the U.S., you have to think carefully
about whatever jeopardy [airing an
unbleeped ‗War‘] might cause you.‖14

This quote is emblematic of the issues facing
broadcasters. The FCC‘s current standard provides
virtually no guidance to broadcasters as to what

13 Paul Farhi, Fearing Fines, PBS to Offer Bleeped
Version of ―The War,‖ Washington Post, August 31, 2007,
available athttp://www.washingtonpost.com/"> http://www.washingtonpost.com/
wpdyn/content/article/2007/08/30/AR2007083001945.html
(―PBS to Offer Bleeped Version of Ken Burns
Documentary‖). The term ―fubar,‖ as explained in the film
Saving Private Ryan, means ―fucked up beyond all
recognition.‖
14 Farhi, ―PBS to Offer Bleeped Version of Ken
Burns Documentary.‖


29

constitutes indecency. Instead, broadcasters simply
succumb to self-censorship and protected First
Amendment speech is chilled.

This scheme was not always so. The FCC,
however, adopted a policy in 2001 seeking to enforce
―community standards‖ as to indecency. Industry
Guidance on Communication‘s Case Law
Interpreting 18 U.S.C. § 1464 & Enforcement
Policies Regarding Broadcast Indecency, 16 F.C.C.R.
7999 ¶ 7-8 (2001) (―Policy Statement‖). The Policy
Statement also included a subjective, three-part test
for determining when material is indecent. Id. ¶ 10.
Just three years later, the FCC drastically altered its
policy again to sanction fleeting uses of expletives.
See, e.g., In re Complaints Against Various Broad.
Licensees Regarding Their Airing of the ―Golden
Globe Awards‖ Program, 19 F.C.C.R. 4975 ¶ 12
(2004) (issuing fine for use of fleeting expletive by
Bono of the musical group U2 at the Golden Globes
awards show). These new ―standards‖ essentially
reversed over twenty-five years of FCC policy that,
regardless of its faults, provided broadcasters with
more-definite guidance as to what constitutes
indecency.
The FCC‘s uneven application of these vague
standards demonstrates the difficulty broadcasters
(let alone the FCC) have in determining what
constitutes indecency. For example, the FCC found,
within the same opinion, that the word ―bullshit‖ was
patently offensive under contemporary community
standards but not the word ―dickhead.‖ The FCC
later found that the use of the word ―bullshitter‖ was
not indecent. Fox Br. in Opp. 8, 46.


30

The FCC‘s vague indecency standard leaves
broadcasters with two unpalatable options: either air
content that may be provocative in some way and
risk massive fines or ―steer far wider of the unlawful
zone‖ to prevent fines. The risk of sanctions thus
impermissibly ―hovers over each content provider,
like the proverbial sword of Damocles.‖ Reno v.
ACLU, 521 U.S. 844, 882 (1997) (quoting ACLU v.
Reno, 929 F.Supp. 824, 885-56 (E.D. Penn. 1996)).
B. The FCC‘s Erratic Enforcement Regime
Validates This Court‘s Concerns About
Vesting Administrative Agencies with
Unrestricted Regulatory Discretion
Over Protected Expressive Activities.
The FCC, in an effort to remedy its vague
definition of indecency, promises it will enact a
―policy of forbearance‖ by magnanimously ―declining
to sanction‖ broadcasters for airing material that the
FCC would not clearly regard as indecent. Pet. Br.
31. This promise simply reinforces the obvious: the
FCC has unrestricted discretion to decide what it
believes constitutes (purportedly) indecent
expression.
Yet the guidance provided by the FCC in this
regard is as equally vague as the FCC‘s current
indecency standard. Petitioners state, for example,
that ABC ―had sufficient notice that its broadcast of
the nude adult images . . . might violate the FCC‘s
indecency standards.‖ Pet. Br. 31. This equivocal
notice, standing alone, fails to provide broadcasters
with definitive boundaries as to whether such images
are actually indecent. Petitioners‘ position is even
more problematic because it relies upon a ―notice‖
that is over fifty years old, id. at 31-32; even the FCC


31

must concede that ―community standards‖ have
changed dramatically in the last fifty years. This
purported notice was also vague fifty years ago: ―the
televising of nudes might well raise a serious
question of programming contrary to 18 U.S.C.
1464.‖ Id. at 32 (quoting Enbanc Programming
Inquiry, 44 FCC Rcd. 2303, 2307 (1960)).
The FCC cannot simply reserve for itself such
unbridled discretion to evaluate when and how it
choose to enforce its policies. See City of Lakewood v.
Plain Dealer Publg. Co., 486 U.S. 750, 764 (1988)
(―[W]ithout standards governing the exercise of
discretion, a government official may decide who may
speak and who may not based upon the content of
the speech or viewpoint of the speaker.‖). This Court
has thus rejected government promises to limit
enforcement of its statutes and regulatory schemes
because these promises insufficiently protect against
potential abuse.15

15 Even in the obscenity context, which receives no
protection under the First Amendment, governments
must still employ safeguards to minimize the risk of
chilling protected speech. The government, therefore,
cannot use ―threat[s] of invoking legal sanctions and other
means of coercion, persuasion, and intimidation‖ to
prevent booksellers from challenging government
determinations of objectionable content. Bantam Books,
Inc. v. Sullivan, 372 U.S. 58, 67 (1963); see also Blount v.
Rizzi, 400 U.S. 410, 416 (1971) (finding procedures to
censor obscene materials from the mails ―violate the First
Amendment unless they include built-in safeguards
against curtailment of constitutionally protected
expression‖); Smith v. California, 361 U.S. 147, 218 (1960)
(striking down strict liability obscenity law because it
created potential for self-censorship that would restrict


32

Indeed, this issue was recently addressed in
Citizens United v. Federal Election Commission, 130
S. Ct. 876 (2009). Chief Justice Roberts, in a
revealing exchange at oral argument, questioned the
FEC‘s ability to limit the reach of 2 U.S.C. § 441b to
certain types of media, see id. at 904: ―But we don‘t
put our – we don‘t put our First Amendment rights
in the hands of FEC bureaucrats . . . .‖ Citizens
United v. Fed. Election Comm‘n, No. 08-205, 2009
WL 6325467, Tr. of Oral Argument, at *65-66 (Sept.
9, 2009); see also Citizens United, 130 S. Ct. at 904
(―This troubling assertion of brooding governmental
power cannot be reconciled with the confidence and
stability in civic discourse that the First Amendment
must secure.‖).
Dirks v. SEC, 463 U.S. 646, 664 n.24 (1983)
reached a similar conclusion in an analogous
situation.16 At issue in Dirks was the censure of a
securities analyst by the SEC for investigating and
revealing a massive fraud. The broker learned of the
information from a corporate insider, and the lower
courts determined that the broker violated SEC Rule

public‘s access to constitutionally protected material). The
common thread running through these cases is a serious
judicial concern with the implementation of laws that
may create a chilling effect on constitutionally protected
speech. These principles, which apply in the unprotected
obscenity context, should apply with greater force to
constitutionally protected indecent speech.
16 This statement has implications beyond
securities litigation, as the Dirks Court noted that
imprecise rules prevent parties from complying with legal
requirements. Id. at 658 n.17. The same principle, albeit
in the First Amendment context, is at issue in these cases.


33

10b-5, 17 CFR § 240.10b-5. Id. at 649-52. The SEC
brought its action even though an earlier SEC
commissioner remarked that analysts and reporters
would not be subject to insider trading liability. This
Court specifically addressed that commissioner‘s
statement when it explained that ―rely[ing] on the
reasonableness of the SEC‘s litigation strategy . . .
can be hazardous.‖ Id. at 664 n.24.
Nor does the proposed ―policy of forbearance‖
bear any resemblance to the FCC‘s current policy. As
compared to the twenty-five years after Pacifica, the
FCC in the last ten years has brought more
enforcement actions and imposed vastly higher fines.
See generally Fox Br. in Opp. 5-10; ABC Br. in Opp.
23-26, 35-38. As these cases demonstrate, the FCC
now frequently passes judgment, inconsistently, as to
whether limited, non-sexual nudity17 or coarse
language18 is indecent. These uneven decisions by
the FCC only reinforce this Court‘s prior precedents

17 Compare, e.g., WPBN/WTOM License
Subsidiary, Inc., 15 FCC Rcd. 1838 (2000) (―Schindler‘s
List‖), with Complaints Against Various Television
Licensees Concerning Their February 25, 2003 Broadcast
of the Program ―NYPD Blue,‖ Notice of Apparent Liability
for Forfeiture, 23 FCC Rcd. 1596 (2008).
18 Compare, e.g., Complaints Against Various
Televisions Licensees Regarding Their Broadcast on
November 11, 2004 of the ABC‘s Television Network‘s
Presentaiton of the Film Saving Private Ryan, 20 FCC
Rcd. 4507 (2005), with Complaints Regarding Various
Television Broadcasts Between February 2, 2002 and
March 8, 2005, Notices of Apparent Liability and
Memorandum Opinion and Order, 21 FCC Rcd. 2664 ¶ 82
(2006) (―The Blues‖).


34

concerning the dangers of trusting government
bureaucrats to police themselves when the public‘s
rights are at stake.
CONCLUSION
For the foregoing reasons, amici curiae
respectfully urge this Court to affirm the judgment of
the Second Circuit Court of Appeals in favor of
respondents.
/s/ J. Joshua Wheeler
J. Joshua Wheeler*
The Thomas Jefferson
Center for the Protection of
Free Expression
400 Worrell Drive
Charlottesville, Va. 22911
434-295-4784

The Media Institute
2300 Clarendon Blvd.
Suite 602
Arlington, Va. 22201
703-243-5700

*Counsel of Record



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