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

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Released: December 5, 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.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA, PETITIONERS
v.
ABC, INC., ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

DONALD B. VERRILLI, JR.
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

TABLE OF CONTENTS

Page
I. The Commission’s indecency determinations are
consistent with the Fifth Amendment . . . . . . . . . . . . . . . . . 2
A. The FCC’s indecency policy is not
unconstitutionally vague as applied to the
broadcasts at issue here . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. The FCC’s indecency policy is not
unconstitutionally vague on its face . . . . . . . . . . . . . . . 7
II. The Commission’s indecency determinations are
consistent with the First Amendment . . . . . . . . . . . . . . . . 11
A. As applied to the broadcasts at issue in this case,
the Commission’s indecency policy is consistent
with the First Amendment . . . . . . . . . . . . . . . . . . . . . . 11
B. Regulation of broadcast indecency does not
violate the First Amendment . . . . . . . . . . . . . . . . . . . . 13

TABLE OF AUTHORITIES

Cases:
Action for Children’s Television v. FCC:
852 F.2d 1332 (D.C. Cir. 1988) . . . . . . . . . . . . . . . . . . . . 5, 7
58 F.3d 654 (D.C. Cir. 1995), cert. denied,
516 U.S. 1043 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Brown v. Entertainment Merchs. Ass’n, 131 S. Ct.
2729 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 22
CBS, Inc. v. FCC, 453 U.S. 367 (1981) . . . . . . . . . . . . . . . . . 18
City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) . . . . . . . . . . 7
Coates v. City of Cincinnati, 402 U.S. 611 (1971) . . . . . . . . 9
Erznozik v. City of Jacksonville, 422 U.S. 205 (1975) . . . . 15
FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800
(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
(I)

II
Cases—Continued:
Page
FCC v. Pacifica Found., 438 U.S. 726 (1978) . . . . . . . passim
Fox Television Stations, Inc.
v. FCC, 489 F.3d 444
(2d Cir. 2007), rev’d, 129 S. Ct. 1800 (2009) . . . . . . . . . . 14
Ginsberg v. New York, 390 U.S. 629 (1968) . . . . . . . . . 12, 13
Gonzales v. Carhart, 550 U.S. 124 (2007) . . . . . . . . . . . . . . . 4
Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 11
Holder v. Humanitarian Law Project, 130 S. Ct. 2705
(2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5
Independent Ins. Agents of Am., Inc. v. Ludwig,
997 F.2d 958 (D.C. Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . 6
Infinity Broad. Corp. of Pa., In re:
2 F.C.C.R. 2705 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3 F.C.C.R. 930 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Malkan FM Assocs. v. FCC, 935 F.2d 1313 (D.C. Cir.
1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Mishkin v. New York, 383 U.S. 502 (1966) . . . . . . . . . . . . . 15
Parker v. Levy, 417 U.S. 733 (1974) . . . . . . . . . . . . . . . . . . 3, 9
Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) . . . . . . . 18
Reno v. ACLU, 521 U.S. 844 (1997) . . . . . 9, 10, 11, 17, 18, 21
Sable Commc’ns v. FCC, 492 U.S. 115 (1989) . . . . . . . . . . . 15
Smith v. Goguen, 415 U.S. 566 (1974) . . . . . . . . . . . . . . . . 4, 8
Turner Broad. Sys., Inc. v. FCC:
512 U.S. 622 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 18, 20, 21
520 U.S. 180 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
United States v. Playboy Entm’t Group, Inc.,
529 U.S. 803 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
United States v. Williams, 553 U.S. 285 (2008) . . . . . . . . . . 5

III
Constitution, statutes and regulation:
Page
U.S. Const.:
Amend. I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 11
Amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2
Communications Decency Act of 1996, 47 U.S.C. 223 . . . . . 9

47 U.S.C. 223(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
47 U.S.C. 223(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
47 U.S.C. 503(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
47 C.F.R.:
Section 0.445(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 73.3999(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Miscellaneous:
Congressional Budget Office Cost Estimate, S. 911,
Public Safety Spectrum and Wireless Innovation
Act
(July 20, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Enbanc Programing Inquiry, 44 F.C.C. 2303 (1960) . . . . . 6
Implementation of the Child Safe Viewing Act, In re,
24 F.C.C.R. 11,413 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . 21
Industry Guidance on the Commission’s Case Law
Interpreting 18 U.S.C. § 1464 & Enforcement
Policies Regarding Broad. Indecency, In re
,
16 F.C.C.R. 7999 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 8, 18

In the Supreme Court of the United States
No. 10-1293
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
PETITIONERS
v.
FOX TELEVISION STATIONS, INC., ET AL.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA, PETITIONERS
v.
ABC, INC., ET AL.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

The FCC ’s indecency policy is consistent with the
Fifth and First Amendments, both as applied to the
broadcasts at issue in this case and generally. Respon-
dents’ contrary arguments misconstrue this Court’s pre-
cedents and reflect an audacious attempt to overturn
Congress’s longstanding judgment, upon which gener-
ations of parents have relied, that children should be
protected from indecent material on the public airwaves.
(1)

2

I. THE COMMISSION’S INDECENCY DETERMINATIONS

ARE CONSISTENT WITH THE FIFTH AMENDMENT

A. The FCC’s Indecency Policy Is Not Unconstitutionally

Vague As Applied To The Broadcasts At Issue Here

A party raising a vagueness challenge must demon-
strate that the challenged “statute is vague as applied to
the particular facts at issue.” Holder v. Humanitarian
Law Project, 130 S. Ct. 2705, 2718-2719 (2010) (HLP)
(citing Hoffman Estates v. Flipside, Hoffman Estates,
Inc., 455 U.S. 489, 495 (1982)). The orders under review
in this case made indecency determinations with respect
to three particular broadcasts. Accordingly, “the focus
of [the Court’s] review must be” on the constitutionality
of those particular determinations, FCC v. Pacifica
Found., 438 U.S. 726, 734-735 (1978) (Pacifica) (citation
omitted), rather than on other adjudications not before
the Court. See Gov’t Br. 24-26.
1. Fox makes no effort at all to demonstrate that the
FCC’s indecency policy was vague as applied to its two
broadcasts, which involved concededly gratuitous uses of
the F-Word and S-Word during prime-time awards
shows with millions of children in the audience. Indeed,
when the broadcasts were aired in later time zones, Fox
blocked the expletives, which are generally proscribed by
its own broadcast standards and which have long been a
focus of the FCC’s indecency-enforcement efforts. See
Gov’t Br. 27-31. Fox contends that past Commission or-
ders involving those words could not have alerted it that
the Billboard Music Awards broadcasts would be consid-
ered indecent because the prior orders involved the “re-
peated[]” use of the expletives. Fox Br. 54. That obser-
vation is correct but irrelevant. This Court has already
held that “the agency’s decision not to impose any forfei-

3
ture or other sanction [on Fox] precludes any argument
that it is arbitrarily punishing parties without notice of
the potential consequences of their action.” FCC v. Fox
Television Stations, Inc., 129 S. Ct. 1800, 1813 (2009)
(Fox); see Gov’t Br. 28 n.3.1
While acknowledging that its own standards “gener-
ally do not permit” broadcast of the F-Word or S-Word,
Fox contends that those standards are “irrelevant to the
vagueness analysis.” Fox Br. 54; see Gov’t Br. 28. Con-
trary to Fox’s suggestion, the government’s argument is
not that Fox’s “own editorial standards” establish the
“legal boundary” of what it may broadcast (Fox Br. 54-
55). Rather, those standards undermine Fox’s vagueness
claim by providing highly probative evidence of “contem-
porary community standards for the broadcast medium,”
a concept at the core of the FCC’s indecency definition.
Pet. App. 61a; cf. Parker v. Levy, 417 U.S. 733, 754 (1974)
(“[F]urther content” to permissible speech regulation
“may be supplied even in * * * areas [of uncertainty] by
less formalized custom and usage.”) (citation omitted).
Fox further contends that the government “do[es] not
contest the Second Circuit’s holding that the FCC’s new
indecency policy permits discriminatory enforcement,
and [the government’s] arguments centered on HLP are
irrelevant to that holding.” Fox Br. 51. That contention
is doubly incorrect. First, contrary to Fox’s suggestion
(Fox Br. 42), the Second Circuit did not make two inde-
1 The CBS and NBC affiliates dispute the premise that the Commis-
sion did not sanction Fox, contending, inter alia, that the agency might
“us[e] its findings to justify enhanced penalties in the event of future
violations.” CBS & NBC Affiliates Br. 17. The Commission stated,
however, that it “will not consider the broadcast to have an adverse
impact upon * * * licensees as part of the renewal process or in any
other context.” Pet. App. 86a (emphasis added); see id. at 97a (same).

4
pendent vagueness holdings. Instead, the court of ap-
peals addressed one question: “whether the FCC’s inde-
cency policy provides a discernible standard by which
broadcasters can accurately predict what speech is pro-
hibited.” Pet. App. 22a; see Gonzales v. Carhart, 550
U.S. 124, 150 (2007) (noting that same statutory elements
that provided fair notice “establish[ed] minimal guide-
lines to govern law enforcement”) (quoting Smith v.
Goguen, 415 U.S. 566, 574 (1974)). To be sure, the court
believed that one adverse consequence of the purported
vagueness of the FCC’s indecency standards was “the
risk that such standards will be enforced in a discrimina-
tory manner.” Pet. App. 28a. The court did not suggest,
however, that this consequence was an independent
ground for finding the Commission’s policy unconstitu-
tionally vague.
Second, a party whose conduct is clearly covered by
a challenged law cannot evade the rule reaffirmed in
HLP simply by packaging its claim as one of potential
discriminatory enforcement. The Court in HLP made
clear that the rule regarding as-applied vagueness chal-
lenges applies to both:
“A conviction fails to comport with due process if the
statute under which it is obtained fails to provide a
person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement.”
We consider whether a statute is vague as applied to
the particular facts at issue, for “[a] plaintiff who en-
gages in some conduct that is clearly proscribed can-
not complain of the vagueness of the law as applied to
the conduct of others.”

5
130 S. Ct. at 2718-2719 (quoting United States v. Wil-
liams, 553 U.S. 285, 304 (2008), and Hoffman Estates,
455 U.S. at 495).
2. Unlike Fox, ABC and its affiliates attempt to dem-
onstrate that the FCC’s indecency policy was unconstitu-
tionally vague as applied to their own broadcast. Those
arguments reduce to the contention that the Commission
could not sanction the NYPD Blue episode because it had
not previously sanctioned one exactly like it. That stan-
dard, if adopted, would cripple the FCC’s ability to re-
spond to the varied forms that broadcast indecency can
take. See Action for Children’s Television v. FCC, 852
F.2d 1332, 1337-1338 (D.C. Cir. 1988) (R.B. Ginsburg, J.)
(ACT I) (affirming FCC’s decision to apply its generic
definition of indecency to varied content, rather than
limiting enforcement to the previously sanctioned Carlin
words). The proper standard is whether a broadcaster
of “ordinary intelligence” would have had “fair notice”
that the nude bathroom scene in the Nude Awakening
episode would be considered indecent. See HLP, 130
S. Ct. at 2718. That standard was satisfied in this case.
See Gov’t Br. 31-32.
ABC contends that it had insufficient notice that
“non-sexualized” nudity could be indecent. ABC Br. 19-
21. But see Pet. App. 143a (“The viewer is placed in the
voyeuristic position of viewing an attractive woman dis-
robing as she prepares to step into the shower.”). More
than 30 years ago, however, this Court in Pacifica explic-
itly rejected the contention that only material with “pru-
rient” appeal could be considered indecent. 438 U.S. at
741. The Court explained that “the normal definition of
‘indecent’ merely refers to noncomformance with ac-
cepted standards of morality,” and the Commission has
long said that “the televising of nudes” may qualify. Id.

6
at 740, 741 n.16 (quoting Enbanc Programing Inquiry,
44 F.C.C. 2303, 2307 (1960)).
ABC and its affiliates also contend that the Commis-
sion’s indecency finding was inconsistent with unpub-
lished staff letters in which longer displays of nudity
were found not to be indecent. See ABC Br. 18-19; ABC
Affiliates Br. 37-39. The Commission’s analysis in this
case, however, was not based on a conclusion that the
nudity was lengthy. To the contrary, the agency “con-
cede[d] that a longer scene or additional depictions of
nudity throughout the episode would weigh more heavily
in favor of an indecency finding.” Pet. App. 142a.
Rather, the agency based its indecency determination on
findings that the nudity was “graphic and explicit,” id. at
140a; that “repeated” camera shots of the actress’s but-
tocks had “focuse[d] on her nudity,” id. at 142a; and that
the scene was “pandering, titillating, and shocking,” in
part because it placed viewers in a “voyeuristic” position,
id. at 143a. In any event, respondents do not contend
that they knew about (much less relied upon) those un-
published and conclusory staff letters, and the Commis-
sion has made clear that such letters have no
precedential effect. See 47 C.F.R. 0.445(e); see also In-
dependent Ins. Agents of Am., Inc. v. Ludwig, 997 F.2d
958, 962 (D.C. Cir. 1993) (“In ‘the real world of agency
practice,’ informal unpublished letters ‘should not engen-
der reliance.’”) (quoting Malkan FM Assocs. v. FCC, 935
F.2d 1313, 1319 (D.C. Cir. 1991)).
ABC further contends that it lacked notice that the
warning it aired at the outset of the broadcast would not
immunize it from an indecency finding. ABC Br. 22-23.
Although the Commission “agree[d] with ABC that the
parental advisory and rating at the beginning of the pro-
gram is relevant and weighs against a finding of inde-

7
cency,” Pet. App. 148a, the Commission has never held
that such warnings will, by themselves, preclude an inde-
cency finding. Indeed, the broadcast at issue in Pacifica
included such a warning, 438 U.S. at 730, but the Court
nonetheless upheld the Commission’s indecency determi-
nation, recognizing that “prior warnings cannot com-
pletely protect the listener or viewer from unexpected
program content,” id. at 748.2

B. The FCC’s Indecency Policy Is Not Unconstitutionally

Vague On Its Face

The FCC’s generic definition of inde-
cency—“language that describes, in terms patently of-
fensive as measured by contemporary community stan-
dards for the broadcast medium, sexual or excretory ac-
tivities and organs,” Pacifica, 438 U.S. at 732 (citation
omitted)—is the same one whose application the Court
upheld in Pacifica. See Fox, 129 S. Ct. at 1806; ACT I,
852 F.2d at 1339. Since Pacifica, the agency has further
clarified that definition in a detailed industry guidance
document that includes numerous illustrative examples.
2 ABC and its affiliates further contend that the NYPD Blue episode
fell outside the agency’s indecency definition because buttocks are not
a “sexual or excretory organ.” ABC Br. 15; ABC Affiliates Br. 31-32.
That contention is insubstantial. Rather than relying on technical
medical definitions, the Commission reasonably applies a common-
sense understanding of these terms, grounded in contemporary
community standards for the broadcast medium. See Pet. App. 135a.
Under that approach, the buttocks, “though not physiologically
necessary to procreation or excretion, are widely associated with sexual
arousal[,] closely associated by most people with excretory activities,”
and not generally displayed in public. Id. at 133a; see City of Erie v.
Pap’s A.M., 529 U.S. 277, 283 n.* (2000) (upholding ordinance banning
public nudity, defined to include showing the “buttocks with less than
a fully opaque covering”).

8
See In re Industry Guidance on the Commission’s Case
Law Interpreting 18 U.S.C. § 1464 & Enforcement Poli-
cies Regarding Broad . Indecency, 16 F.C.C.R. 7999
(2001) (Industry Guidance).
In that guidance, the Commission explained that
“[i]ndecency findings involve at least two fundamental
determinations.” 16 F.C.C.R. at 8002 ¶ 7. First, the ma-
terial “must fall within the subject matter scope of [the]
indecency definition—that is, the material must describe
or depict sexual or excretory organs or activities.” Ibid.
(citation omitted). Second, “the broadcast must be pa-
tently offensive as measured by contemporary commu-
nity standards for the broadcast medium.” Id. at 8002
¶ 8 (emphasis omitted). Although that second inquiry is
“highly fact-specific,” id. at 8002 ¶ 9, the agency has
identified three “principal factors” that guide its analy-
sis: the “explicitness” of the material; whether the
broadcast “dwells on or repeats at length” the material;
and “whether the material appears to pander or is used
to titillate, [and] whether the material appears to have
been presented for its shock value.” Id. at 8003 ¶ 10 (em-
phasis omitted). The generic definition of indecency that
was upheld in Pacifica and ACT I, as supplemented by
the detailed discussion in the Industry Guidance, is not
vague on its face.
Fox’s fundamental contention is that the FCC’s inde-
cency policy must be vague “as applied” to the Billboard
Music Awards broadcasts because that policy is vague in
all its applications. Fox Br. 53 (quoting Goguen, 415
U.S. at 578). To prevail on that facial vagueness chal-
lenge, Fox must show that the “provision is vague ‘not in
the sense that it requires a person to conform his conduct
to an imprecise but comprehensible normative standard,
but rather in the sense that no standard of conduct is

9
specified at all.’ ” Parker, 417 U.S. at 755 (quoting
Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971));
see Fox Br. 53 (acknowledging this is standard for its
facial vagueness claim). The FCC’s indecency policy is
“subject to no such sweeping condemnation.” Parker,
417 U.S. at 755.
To demonstrate that the FCC’s indecency policy has
prescribed “no standard of conduct * * * at all”
(Parker, 417 U.S. at 755), respondents would have to
show that it was uncertain whether that policy would
cover the Carlin monologue. Respondents likewise would
have to demonstrate that it is unclear whether the policy
proscribes shock-jock and other broadcasts that the
Commission has previously found indecent based on their
explicit and extended discussion of sexual acts. See Gov’t
Br. 6 (providing examples). Respondents’ inability to
make, or even attempt, such showings dooms their facial
vagueness challenge.
Respondents contend that in Reno v. ACLU, 521 U.S.
844 (1997), “this Court struck down as unconstitutionally
vague a ‘definition of indecency [that] was almost identi-
cal to the Commission’s definition.” Fox Br. 40 (quoting
Pet. App. 21a); see ABC Br. 13. That is incorrect. The
two indecency prohibitions at issue in Reno, which were
set forth in the Communications Decency Act of 1996
(CDA), 47 U.S.C. 223(a) and (d), were not “almost identi-
cal” to the Commission’s indecency rule. One of the CDA
prohibitions applied simply to “indecent” communica-
tions without “any textual embellishment at all.” 521
U.S. at 871 n.35. The other covered Internet content
that was “patently offensive as measured by contempo-
rary community standards,” without any medium-based
qualification or further elucidation by a regulatory body.
Id. at 860. By contrast, the Commission’s definition rests

10
on longstanding, medium-based norms (contemporary
community standards for the broadcast medium), and
the Industry Guidance provides additional definition and
explains in detail how the Commission applies it. See pp.
7-8, supra.
Far from equating the prohibitions, the Court in Reno
expressly distinguished the CDA provisions it found un-
constitutional from the indecency regime at issue here.
The Court emphasized that the FCC has “been regulat-
ing radio stations for decades” and that in Pacifica the
Commission had “targeted a specific broadcast that rep-
resented a rather dramatic departure from traditional
program content.” Reno, 521 U.S. at 867. The Court
further explained that there was no such “traditional
program content” on the Internet because “[n]either
before nor after the enactment of the CDA have the vast
democratic forums of the Internet been subject to the
type of government supervision and regulation that has
attended the broadcast industry.” Id. at 868-869.
The Court in Reno also noted two other critical dis-
tinctions between broadcast regulation and the CDA’s
regulation of the Internet. First, because the Commis-
sion’s indecency policy does not apply to materials broad-
cast after 10 p.m., it merely “designate[s] when—rather
than whether—it would be permissible to air” indecent
material. 521 U.S. at 867; see 47 C.F.R. 73.3999(b). The
CDA prohibitions, by contrast, were “not limited to par-
ticular times.” Reno, 521 U.S. at 867. For that reason,
in any case where the application of the relevant laws to
particular materials was unclear, the CDA prohibitions
were far more likely than the FCC’s indecency regime to
induce potential disseminators to withhold borderline
materials altogether. Second, the CDA imposed criminal
sanctions of “up to two years in prison for each act of

11
violation.” Id. at 867, 872. By contrast, the Commission
is not authorized to impose criminal liability on broad-
casters, and the Court’s holding in Pacifica was limited
to civil enforcement of the prohibition on indecent broad-
casts. See id. at 867 (citing Pacifica, 438 U.S. at 750);
see also Hoffman Estates, 455 U.S. at 498-499 (“The
Court has * * * expressed greater tolerance of enact-
ments with civil rather than criminal penalties because
the consequences of imprecision are qualitatively less
severe.”); Pacifica, 438 U.S. at 739 n.13.

II. THE COMMISSION’S INDECENCY DETERMINATIONS

ARE CONSISTENT WITH THE FIRST AMENDMENT

A. As Applied To The Broadcasts At Issue In This Case, The

Commission’s Indecency Policy Is Consistent With The
First Amendment

1. This Court “ha[s] never held that Pacifica repre-
sented the outer limits of permissible regulation, so that
fleeting expletives may not be forbidden.” Fox, 129
S. Ct. at 1815. Fox nevertheless contends that the First
Amendment permits regulation of (at most) “verbal
shock treatment” and “graphic sexual material that [is]
overtly pornographic.” Fox Br. 27, 28 (quoting Pacifica,
438 U.S. at 757 (Powell, J., concurring)); see ABC Br. 38-
39. That contention reflects an unduly narrow under-
standing of the rationale for the Commission’s indecency
regime.
“Congress has made the determination that indecent
material is harmful to children,” and the government
interest in protecting children from such material is the
same here as it was in Pacifica. Fox, 129 S. Ct. at 1813;
see ibid. (“There are some propositions for which scant
empirical evidence can be marshaled, and the harmful
effect of broadcast profanity on children is one of

12
them.”). The Pacifica Court’s observation that the
Carlin monologue “could have enlarged a child’s vocabu-
lary in an instant,” 438 U.S. at 749, is equally true of
Fox’s broadcasts. “Programming replete with one-word
indecent expletives will tend to produce children who use
(at least) one-word indecent expletives.” Fox, 129 S. Ct.
at 1813.
2. ABC contends that the First Amendment bars the
imposition of any sanction for its broadcast of the bath-
room scene in Nude Awakening because viewing that
scene would not harm children. ABC Br. 39. The pres-
ence or absence of such harm is inherently uncertain,
however, because “[o]ne cannot demand a multiyear con-
trolled study, in which some children are intentionally
exposed to indecent broadcasts (and insulated from all
other indecency), and others are shielded from all inde-
cency.” Fox, 129 S. Ct. at 1813. This Court has recog-
nized that children’s reactions to nude images may be
different from adults’, and that the government therefore
has a legitimate interest in keeping such images from
them. In Ginsberg v. New York, 390 U.S. 629 (1968), the
Court upheld a criminal conviction for selling to children
a “ girlie” magazine containing “pictures which depicted
female ‘nudity,’ ” including “the showing of . . . female
. . . buttocks with less than a full opaque covering.” Id.
at 632-633 (citation omitted). While recognizing that
such material was not obscene as to adults, id. at 634, the
Court held that the government had a legitimate interest
in preventing its dissemination to children because such
material could “impair[] the ethical and moral develop-
ment of our youth,” id. at 641 (citation omitted).
The same interest is implicated here. “[T]he normal
definition of ‘indecent’ merely refers to nonconformance
with accepted standards of morality.” Pacifica, 438

13
U.S. at 740. In our society, appearing nude in front
of strangers—including showing one’s buttocks—
contravenes such standards, especially when children are
present. Cf. Ginsberg, 390 U.S. at 643 n.10 (“[O]penly
permit[ting]” children to view pornographic images “im-
plies parental approval and even suggests seductive en-
couragement. If this is so of parental approval, it is
equally so of societal approval—another potent influence
on the developing ego.”) (citation omitted).

B. Regulation Of Broadcast Indecency Does Not Violate

The First Amendment

The network respondents ask this Court to overrule
Pacifica and invalidate all broadcast indecency regula-
tion. See Fox Br. 17-26; ABC Br. 48-56. Other respon-
dents, including groups representing affiliates of three of
the broadcast networks, pointedly decline to embrace
that sweeping argument. See ABC Affiliates Br. 17, 26
n.26; CBS & NBC Affiliates Br. 29. The network respon-
dents have not met the demanding standard required for
this Court to overrule one of its precedents. See Gov’t
Br. 41.
1. Without broadcast-indecency regulation, “[a]ny-
thing that could be sold at a newsstand”—or shown on
premium cable channels or made available on the
Internet—could be aired on broadcast television in the
middle of the afternoon. Pacifica, 438 U.S. at 744 n.19
(plurality op.). Such broadcasts could include the Carlin
monologue, as well as material with “explicit references
to masturbation, ejaculation, breast size, penis size, sex-
ual intercourse, nudity, urination, oral-genital contact,
erections, sodomy, bestiality, menstruation and testi-
cles.” In re Infinity Broad. Corp. of Pa., 3 F.C.C.R. 930,
932 ¶ 20 (1987); see Gov’t Br. 6. Fox contends that “there

14
is no evidence for this alarmist prediction,” Fox Br. 25;
see ABC Br. 57, but the examples the government cites
are not hypotheticals—they come from actual programs
that broadcasters have aired even with indecency regula-
tion in place. The inference that more such broadcasts
would occur in the absence of indecency regulation is a
matter of common sense.
Indeed, amicus National Association of Broadcasters
candidly acknowledges that it supports relaxation of
broadcast indecency regulation so that broadcasters can
better compete against “cable and satellite providers
[who] are [currently] able to offer their viewers content
that broadcasters simply cannot.” NAB Br. 33; see Fox
Television Stations, Inc. v. FCC, 489 F.3d 444, 472 (2d
Cir. 2007) (Leval, J., dissenting) (“[T]he regulated net-
works compete for audience with the unregulated cable
channels, which increasingly make liberal use of their
freedom to fill programming with * * * expletives.”),
rev’d, 129 S. Ct. 1800 (2009); Student Press Law Ctr.
Amicus Br. 31-34 (college radio stations eager for end to
indecency regulation so that they can play songs with
expletives during the day).
2. The network respondents emphasize that fewer
households now view video programming by means of
broadcast than was the case at the time of Pacifica. See
Fox Br. 18-21; ABC Br. 51-53. Yet television broadcast
programming has retained its dominance despite the
proliferation of different ways of accessing it. See Gov’t
Br. 45. Moreover, millions of Americans still live in
broadcast-only households, see id. at 44-45, and low-in-
come children are disproportionately represented in that
group, see American Acad. of Pediatrics Amicus Br. 16
(AAP Amicus Br.) (“[W]hile 98% of children under age

15
eight in households with incomes of $30,000 or less have
a television, only 53% have cable.”).
The rise of alternative, unregulated platforms for
video programming has, if anything, strengthened the
need for broadcast-indecency regulation. Because of
“the pervasiveness of foul language, and the coarsening
of public entertainment in other media such as cable,”
the need remains for “more stringent regulation of
broadcast programs so as to give conscientious parents
a relatively safe haven for their children.” Fox, 129
S. Ct. at 1819. At the same time, the rise of those alter-
native platforms has dramatically reduced the burden of
broadcast-indecency regulation on those adults who wish
to produce or view indecent programming, see Gov’t Br.
48-49, just as the widespread availability of digital video
recording devices that permit time-shifted viewing (Fox
Br. 23 n.11) has materially reduced the burden of requir-
ing indecent material to be broadcast after 10 p.m.3
Fox questions why broadcasters should be “single[d]
out * * * as a ‘safe haven’ from among an abundance of
substitutes.” Fox Br. 38 (emphasis omitted); see ABC
3 Fox mischaracterizes the FCC’s indecency rule as a “content-based
ban.” Br. 24. Instead, it is a time-channeling rule that requires only
that indecent material be shown after 10 p.m. By contrast, a number of
the decisions on which the network respondents rely, see, e.g., Erznozik
v. City of Jacksonville, 422 U.S. 205 (1975), cited in Fox Br. 29-30,
addressed flat prohibitions. “Pacifica is readily distinguishable” from
those cases, “most obviously because it did not involve a total ban on
broadcasting indecent material,” and because those cases, unlike
Pacifica, did not rest on “the ‘unique’ attributes of broadcasting.” Sable
Commc’ns, Inc. v. FCC, 492 U.S. 115, 127 (1989). The fact that the
Commission cannot impose forfeiture liability unless a violation is
willful, see Pet. App. 86a, 97a n.206, 182a, further ameliorates First
Amendment concerns. Cf. Mishkin v. New York, 383 U.S. 502, 510-511
(1966).

16
Br. 56. The answer is that broadcasters, from the very
inception of the medium, have been granted highly favor-
able regulatory treatment and have compensated the
public for that treatment by taking licenses subject to
enforceable public-interest obligations. See Fox, 129
S. Ct. at 1806. Unlike speakers in other media, broad-
casters exploit an extraordinarily valuable public re-
source without charge to reach their audience—a re-
source for which other categories of speakers must pay
billions of dollars. Although the public asks for relatively
little in return, broadcasters’ responsibilities when using
the public airwaves include the obligation not to broad-
cast indecent material during the portion of the day (i.e.,
before 10 p.m.) when children are most likely to be in the
audience.
In its basic form, this obligation has been in place
since the beginning of broadcasting in the 1920s, and it
is one of the medium’s defining features. See Gov’t Br.
52-53.4 In questioning whether adherence to that obliga-
4 Fox contends that “neither broadcasters nor the public has any
vested ‘understanding’ or ‘expectations’ concerning the FCC’s current,
expanded enforcement policy.” Fox Br. 38. That observation is beside
the point, however, because Fox asks the Court to invalidate all
broadcast-indecency enforcement, not just the Commission’s current
policies. Fox Br. 17-26. Fox also points out (Br. 38) that nonlicensees
could in theory be subject to liability for violating the Commission’s
indecency regime. But the Commission may impose a forfeiture against
a nonlicensee only if the nonlicensee receives a “citation of the violation
charged,” is “given a reasonable opportunity for a personal interview
with an official of the Commission,” and again “engages in [the]
conduct.” 47 U.S.C. 503(b)(5). The Commission has not used that
elaborate statutory procedure in broadcast-indecency cases, instead
imposing forfeitures only on broadcast licensees. To the extent that
enforcement of the Commission’s indecency regime might raise distinct
First Amendment concerns in a case involving a nonlicensee, those

17
tion is actually a traditional feature of the broadcast me-
dium, ABC states that until the 1970s, “there was almost
no actual regulation” of broadcasts specifically identified
as indecent. ABC Br. 57. But that is simply because
broadcasters complied with their public-interest obliga-
tion not to air indecent material.5
Fox contends that this “grand bargain” has not previ-
ously been identified as a basis for indecency regulation.
Fox Br. 35. But the Court’s prior decision in this very
case drew the connection:
Twenty-seven years ago we said that “[a] licensed
broadcaster is granted the free and exclusive use of
a limited and valuable part of the public domain;
when he accepts that franchise it is burdened by en-
forceable public obligations.” One of the burdens that
licensees shoulder is the indecency ban.
concerns can be addressed on an as-applied basis if such a case ever
arises.
5 The long history of broadcast-indecency regulation is among the
reasons that Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729
(2011), which respondents repeatedly invoke (e.g., Fox Br. 16), is
inapposite. That decision recognized that even a “novel restriction on
content” may survive First Amendment scrutiny if it is “part of a long
* * * tradition of proscription.” 131 S. Ct. at 2734; see id. at 2736
(stressing absence of “a longstanding tradition in this country of
specially restricting children’s access to depictions of violence”). In
addition, Brown involved privately sold video games, which the Court
analogized to books for constitutional purposes, see id. at 2736-2737 &
n.4, and whose dissemination does not depend on any form of govern-
ment assistance. By contrast, broadcasting over the public airwaves
implicates “special justifications for regulation * * * not applicable to
other speakers,” including “the scarcity of available frequencies,” Reno,
521 U.S. at 868, and the consequent need for a governmental role in
allocating the available spectrum.

18
Fox, 129 S. Ct. at 1806 (quoting CBS, Inc. v. FCC, 453
U.S. 367, 395 (1981)) (paragraph break omitted). And
while the Commission at one point declined to rely on
spectrum scarcity to support indecency regulation, see
Fox Br. 36 & n.19 (citing In re Infinity Broad. Corp. of
Pa., 2 F.C.C.R. 2705, 2707 ¶ 7 n.7 (1987)), the Commis-
sion later said that among the “special justifications” for
broadcast indecency regulation are “the history of exten-
sive government regulation of the broadcast medium”
and “the scarcity of available frequencies at its incep-
tion,” Industry Guidance, 16 F.C.C.R. at 8000 ¶ 4 & n.9
(quoting Reno, 521 U.S. at 868, which in turn cited Red
Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) and
Pacifica).
Fox also contends that the “scarcity doctrine has no
continuing validity, if it ever did.” Fox Br. 36. But “the
unique physical limitations of the broadcast medium”
have not changed over time. Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 637 (1994) (Turner I). To the con-
trary, the demand for spectrum increases every year, as
does the difficulty of the decisions about how spectrum
should be allocated to best serve the public interest. And
it remains true today that “if two broadcasters were to
attempt to transmit over the same frequency in the same
locale, they would interfere with one another’s signals.”
Ibid. The feasibility of broadcasting therefore continues
to depend on the “establishment of some regulatory
mechanism to divide the electromagnetic spectrum and
assign specific frequencies to particular broadcasters.”
Id. at 638.
Although there are “more than twice as many over-
the-air broadcast stations than there were 40 years ago,”
Fox Br. 37, each of those stations enjoys an exclusive
license to public spectrum that others cannot legally use.

19
“[T]he proper question is not how many outlets there
are, or how many outlets are technologically feasible, but
how great the demand is for the available spectrum in
light of the regulatory scheme.” Center for Creative
Voices et al. Br. 36. The continuing high demand is dem-
onstrated by estimates of how many billions of dollars
could be raised if the spectrum broadcasters presently
use without charge were auctioned for use by others,
such as wireless Internet providers. See id. at 36-37; see
generally Congressional Budget Office Cost Estimate, S.
911, Public Safety Spectrum & Wireless Innovation Act
(July 20, 2011). And the growth of new, nonbroadcast
media platforms, Fox Br. 37, says nothing about the scar-
city of broadcast spectrum itself.
Fox’s observation that all “economic goods are
scarce” (Fox Br. 37) likewise does not advance respon-
dents’ argument. Where scarcity results from economic
factors (as in the newspaper industry), and no need ex-
ists for government to choose among would-be speakers,
the fact of scarcity alone cannot justify content-based
regulation that would otherwise violate the First Amend-
ment. The salient feature of the broadcast medium, by
contrast, is that the government must select among
would-be participants seeking to exploit this uniquely
public resource, and must enforce prohibitions on the use
of spectrum by those who are not selected, in order for
the medium to function at all. As especially privileged
beneficiaries of those selection and enforcement mecha-
nisms, respondents may reasonably be required to accept
public-interest obligations that could not constitutionally
be imposed on persons who speak without government
assistance.
2. The network respondents also contend that
Pacifica should be overruled because broadcast televi-

20
sion is no longer “uniquely accessible to children.” Fox
Br. 21; see ABC Br. 51-55. That contention lacks merit.
The network respondents assert that “cable, satellite,
[and] telephone-company-provided television services”
now have “the same accessibility to children * * * as
broadcast television.” ABC Br. 51; see Fox Br. 21-22.
This argument is misconceived. Because the alternative
services to which respondents refer are available only by
subscription, their accessibility to children depends on an
affirmative act by a parent or guardian beyond the initial
procurement of a television. Broadcasting, by contrast,
comes into the home without subscription, and “[u]nlike
cable subscribers, who are offered such options as ‘pay-
per-view’ channels, broadcast audiences have no choice
but to ‘subscribe’ to the entire output of traditional
broadcasters.” Action for Children’s Television v. FCC,
58 F.3d 654, 660 (D.C. Cir. 1995) (en banc), cert. denied,
516 U.S. 1043 (1996). Allocating valuable spectrum to
broadcasting services helps to provide all Americans
with access to news, public affairs, and cultural program-
ming without their having to subscribe to alternative
(and often expensive) services. See Turner I, 512 U.S. at
663. Requiring conscientious parents to cut their families
off from television programming in its entirety (by not
purchasing a television or an antenna) in order to avoid
indecent material is fundamentally at odds with that
longstanding policy objective.
In arguing that broadcast programming is no longer
uniquely accessible to children, the network respondents
also rely on the availability of “V-Chip” blocking technol-
ogy. Fox Br. 22; ABC Br. 54. The V-Chip, however, has
not materially diminished “[t]he ease with which children
may obtain access to broadcast material.” Pacifica, 438
U.S. at 750. Indeed, even under strict scrutiny (which is

21
inapplicable here, see Pet. App. 14a6), a proffered less-
restrictive alternative must be “at least as effective in
achieving the legitimate purpose that the statute was
enacted to serve.” Reno, 521 U.S. at 874; see United
States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 816
(2000) (Playboy) (government may defend content-based
speech restriction when it “prove[s] that [a less-restric-
tive] alternative will be ineffective to achieve its goals”).
As the American Academy of Pediatrics explains in
detail, “[e]xperience has shown that the V-Chip and its
underlying ratings scheme have not and cannot provide
an effective tool for protecting children from inappropri-
ate content.” AAP Amicus Br. 16; see Gov’t Br. 49-51; In
re Implementation of the Child Safe Viewing Act, Re-
port, 24 F.C.C.R. 11,413, 11,420 ¶ 14 (2009). Many par-
ents are unaware of the V-Chip, and even those who
know about it find it difficult, if not impossible, to use.
See AAP Amicus Br. 21-22. In Playboy, the Court held
that, where a proffered less-restrictive alternative could
be “effective” “if publicized,” it could not be deemed inef-
fective simply because lack of publicity had prevented its
widespread use. 529 U.S. at 816. “In contrast” to the
situation in Playboy, “the V-Chip has been heavily pro-
6 ABC contends (Br. 41-48) that the availability of the V-Chip means
that, even if Pacifica is not overruled, the constitutionality of indecency
regulation “must, at a minimum, be reconsidered as to blockable
programs.” Under the intermediate scrutiny that applies to broadcast-
indecency regulation under Pacifica (Pet. App. 14a), however, “a
regulation need not be the least speech-restrictive means of advancing
the Government’s interests.” Turner I, 512 U.S. at 662. Instead, “[s]o
long as the means chosen are not substantially broader than necessary
* * * the regulation will not be invalid simply because a court
concludes that the government’s interest could be adequately served by
some less-speech-restrictive alternative.” Turner Broad. Sys., Inc. v.
FCC, 520 U.S. 180, 218 (1997) (citation omitted).

22
moted for over a decade,” AAP Amicus Br. 24, and the
technology has still proved ineffective.
Moreover, many programs are not rated at all, and
even for rated programs, a recent study found that “only
5% of parents felt that television ratings were always
accurate.” AAP Amicus Br. at 22. Indeed, “[s]tudies
have shown that many programs are not accurately rated
and that a large amount of objectionable content reaches
children.” Id. at 24-25. The problem of inaccurate rat-
ings—along with the failure of the industry to do any-
thing about it, see id. at 27—has led not to a “modest
gap” in the rating scheme (Brown v. Entertainment
Merchs. Ass’n, 131 S. Ct. 2729, 2741 (2011)), but to its
wholesale unreliability as an alternative to indecency
regulation.7
* * * * *
For the foregoing reasons and those stated in the gov-
ernment’s opening brief, the judgments of the court of
appeals should be reversed.
Respectfully submitted.
DONALD B. VERRILLI, JR.
Solicitor General
DECEMBER 2011
7 While the network respondents’ arguments for invalidating
indecency regulation for television broadcasting fail for the reasons
discussed above, the network respondents do not even attempt to
explain why such regulation is infirm as applied to radio. Radio
broadcasting remains uniquely pervasive and uniquely accessible to
children, see Gov’t Br. 44, 46 n.5, and there is no V-Chip for radio.

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