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

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Released: September 13, 2011

No. 10-1293

IN THE

Supreme Court of the United States



FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, Petitioners,
v.

FOX TELEVISION STATIONS, INC., ET AL., Respondents.

FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA, Petitioners,
v.

ABC INC., ET AL. Respondents
_________
On Writ of Certiorari to the United States
Court of Appeals for the Second Circuit

BRIEF FOR

NATIONAL RELIGIOUS BROADCASTERS

AS AMICUS CURIAE IN SUPPORT OF THE PETITIONER



CRAIG L. PARSHALL
JOSEPH C. CHAUTIN III
Counsel of Record
ELISE M. STUBBE
GENERAL COUNSEL,
HARDY, CAREY, CHAUTIN &
NATIONAL RELIGIOUS
BALKIN, LLP
BROADCASTERS
Co-Counsel
9510 Technology Dr.
1080 West Causeway
Manassas, VA 20110
Approach,
cparshall@nrb.org
Mandeville, LA 70471
(703)330-7000
(985)629-0777
Attorney for the Amicus
Curiae









i

TABLE OF CONTENTS


Page


INTEREST OF THE AMICUS ................................ 1
SUMMARY OF ARGUMENT.................................. 2
ARGUMENT ............................................................ 8
I. The Court of Appeals fatally ignored
the "Community Standards" element
of the FCC Rules ............................................... 8
A. The "community standards" element
is an integral and constitutionally
valid part of the FCC policy ......................... 8
B. "Community standards" counsel in
favor of the FCC rulings............................. 12
II. The Court of Appeals misjudged the
supposed "harm" to free speech ....................... 16
III. Reversal will foster First Amendment
Values .............................................................. 20
A. The Pacifica case was misapplied
by the Court of Appeals............................. 20
B. The Brown case counsels reversal
of the Court of Appeals.............................. 25
CONCLUSION ....................................................... 28







ii









TABLE OF AUTHORITIES


Cases Page


Ashcroft v. ACLU,

535 U.S. 564 (2002) ........................... 3, 9, 10, 11, 12

Beach v. Yellow Freight Sys., 312 F.3d 391
(8th Cir. 2002)......................................................... 15

Bethel School Dist. No. 403 v. Fraser
,
478 U.S. 675 (1986) ............................................... 27

Board of Ed., Island Trees Union Free
School Dist. No. 26 v. Pico
, 457 U.S. 853 (1982) .. 27

Brown v. Entertainment Merchants Assn.,
131 S. Ct. 2729 (2010) ............................. 6, 7, 26, 27

Chaplinsky v. New Hamphire,
315 U.S. 568 (1942) ............................................... 27

Erznoznik v. Jacksonville, 422 U.S. 205 (1975) ... 11

Farrell v. Burke
, 449 F.3d 470 (2d Cir. 2006) ........ 8

FCC v. Fox Television Stations, Inc.,
129 S. Ct. 1800 (2009) ......................... 18, 20, 23, 24

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






iii
Fox Television Stations, Inc. v. FCC,
613 F.3d 317 (2d Cir. 2010)............................ passim

Ginsberg v. New York
,
390 U.S. 629 (1968) ............................................... 27

Hoffman Estates v. Flipside, Hoffman Estates,
Inc.
, 455 U.S. 489 (1982) ....................................... 10

Miller v. California, 413 U.S. 15 (1973) ..... 9, 10, 11

Red Lion Broad. Co. v. FCC,
395 U.S. 367 (1969) ........................................... 6, 25

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

Reno v. ACLU,
521 U.S. 844 (1997) ................................... 10, 11, 12

Rush v. Scott Specialty Gases, Inc.,
113 F.3d 476 (3rd Cir. 1997) .................................. 16

Turner Broadcasting Sys., Inc. v. FCC,
512 U.S. 622 (1994) ......................................... 22, 23

Turner Broadcasting Sys., Inc. v. FCC,
520 U.S. 180 (1997) ......................................... 22, 23

Tutman v. WBBM-TV, Inc./CBS, Inc.,
209 F.3d 1044 (7th Cir. 2000) .......................... 15, 16

United States v. Kilbride, 584 F.3d 1240
(9th Cir. 2009)................................................... 12, 13




iv
United States v. Little, 365 Fed. Appx.
159 (11th Cir. 2010).......................................... 12, 13

United States v. Playboy Entertainment Group,
Inc., 529 U.S. 803 (2000) ....................................... 18

United States v. Stevens
,
130 S. Ct. 1577 (2010) ........................................... 26


Statutes, Regulations and Legislative History


47 U.S.C. 231 (e)(6)............................................... 9

47 U.S.C. 534(a).................................................. 22

47 U.S.C. 535(a).................................................. 23

Public Telecommunications Act of 1992 16(a),
Pub. L. No. 102-356, 106 Stat. 954 ........................ 18

The Cable Television Consumer Protection and
Competition Act of 1992, Pub. L. No. 102-385,
106 Stat. 1460......................................................... 22

The Satellite Home Viewer Improvement Act of
1999, Pub. L. No. 106-113, 113 Stat. 1501 ............ 23

47 U.S.C. 338, et seq ............................................ 23

47 C.F.R. 76.66 .................................................... 23

FCC Orders


Saving Private Ryan, 20 FCC Rcd. 4507 (2005)... 11



v


Other Sources

30.9% of American TV Households Now
Subscribe to Alternate Delivery, an
All-Time High, While Wired Cable Hits
21-Year Low, TVB Local Media Marketing
Solutions, TVB.org, June 9, 2011 .......................... 21
Air America Host Suspended for Clinton Slur,
TheNewYorkTimes.com, April 4, 2008.................. 15

Cristina Nehring, Big Wolfe on Campus,
New York Magazine Book Review,
Nymag.com, May 21, 2005 ............................... 18, 19

DowLohnes, Obscenity, Indecency, and
Profanity: Guidelines For Broadcasters,
June 2006................................................................ 19

Fox 5's Ernie Anastos tells weatherman to `Keep

F---ing that chicken' on the air; says he's sorry,
NewDailyNews.com, September 17, 2009............. 14

Karel and engineer fired in one-paragraph
e-mail and three-minute phone call
,
Examiner.com, November 11, 2008....................... 15

Kathy Griffin: If I Curse on New Year's Eve
CNN Will Immediately Yank Me Off Live TV
,
Mediaite.com, December 18, 2010 15







vi
Laura Fisherman, Victoria Firefighters
Terminated Over Nude Photos at Station
,
Houston Employment Laws Blog.com,
April 13, 2011 ......................................................... 16

`Mob' talk dooms radio show, NewYork Post.com,
April 23, 2011 ......................................................... 15

NBC anchor under fire after using F-word
on live TV, The Daily Voice.com,
May 14, 2008 .......................................................... 14

NBC News Analyst Suspended for
Obama Obscenity
, FoxNews.com,
June 30, 2011.......................................................... 13

Over-the-air TV homes increase 10% to
46 million
, Rapid TV News, August 6, 2011 ......... 21

Shannon Halligan, Teacher resigns over
racy music video, WWLP.com,
June 22, 2011.......................................................... 16

Station Erred in Firing Reporter Who Cursed,
Arbitrator Says, TheNewYorkTimes.com,
June 1, 2006............................................................ 14

Thomas W. Hazlett, Sarah Oh, Drew
Clark, The Overly Active Corpse of Red Lion,
Northwestern Journal of Technology and
Intellectual Property, Fall 2010 ............................ 25

WDBJ slip-up a viral sensation,
The Roanoke Times, Roanoke.com,
June 11, 2011.......................................................... 15




INTEREST OF THE AMICUS

1

The Amicus herein, National Religious
Broadcasters ("NRB") is a non-profit membership
association with offices in Manassas, Virginia and
Washington, D.C. It represents the interests of
Christian broadcasters and communicators
throughout the nation. The President and CEO of
NRB is Frank Wright, Ph.D. The vast majority of our
members are broadcasters in the television and radio
industry, and include both commercial and non-
commercial stations and networks. For more than
half a century, the mission of NRB has been to help
protect and defend the rights of Christian media and
to insure that the channels of electronic
communication stay open and accessible for
Christian broadcasters to proclaim the Gospel of
Jesus Christ, and to minister to the spiritual welfare
of the United States.

NRB supports the Petitioners in this case because
the Court of Appeals for the Second Circuit has
committed a serious error by invalidating the
indecency policy of the Federal Communications
Commission ("FCC" or "Commission") on First

1 The parties have consented to the filing of this brief in
letters of consent on file with the Clerk which consent to the
filing of all amicus curiae briefs in support of either party or of
neither party. No counsel for any party had any role in
authoring this brief, and no one other than the amicus curiae
provided any monetary contribution to its preparation or
submission.






2
Amendment grounds, ruling that the subject policy
was void for vagueness. Admittedly, NRB believes
that as a general rule the Commission should leave
broadcasters, including religious stations, free to
produce and generate broadcast content without
unnecessary or unreasonable interference. On the
other hand, NRB believes that the welfare of
America, its families, and its youth, will be
detrimentally affected by electronic mass
communications which are allowed to contain, during
children's viewing hours of 6 am to 10 pm,
unrestrained indecency, whether in language or
imagery.

We also believe that reversal of the Court of
Appeal's decision will further a rational paradigm of
free speech values, and will maintain the reasonable
balance that has been struck by this Court between
that expansive field of expression currently protected
from government prohibition, and the short list of
those types of speech that fall into narrow, well-
defined exceptions which can be subjected
constitutionally to content-based government
sanction. The broadcasting of indecent content
during children's viewing hours fits squarely within
those well-established First Amendment exceptions,
and the Commission's policy gives ample, sufficiently
clear notice to broadcasters of what is prohibited.

SUMMARY OF ARGUMENT


The Court of Appeals failed to address a lynchpin
feature of the indecency policy of the FCC. In
determining whether broadcast content is "indecent,"
the Commission's regulation measures the "patently
offensive" nature of that content by the yardstick of



3
"contemporary community standards for the
broadcast medium," an element ignored by the Court
of Appeals in its decision that the policy was
unconstitutionally vague. As a result, the lower court
reached its conclusion without considering the fact
that this "community standards" element provided
the necessary notice to broadcasters of what was
prohibited.

This Court has previously affirmed the
constitutionality of a "community standards"
approach in the context of on-line obscenity aimed at
children, in Ashcroft v. ACLU, 535 U.S. 564 (2002).
Further, the key elements in the FCC's policy here
are strikingly similar to other elements of the law
under review that was upheld in Ashcroft, namely:
that there be a gratuitous sexual component of the
communication, and also that exemptions apply to
content containing serious social value, thus
excluding, in words of the Commission, such things
as "bona fide news" coverage, or where the otherwise
indecent content is justified by "artistic necessity,"
the Commission having pledged itself to give due
deference to expression with "social, scientific, or
artistic value."

The "community standards for the broadcast
medium" language in the Commission's policy clearly
gives broadcasters adequate notice of those
boundaries where acceptable content ends and
indecency begins. This is illustrated by current
examples of the broadcast industry continuing to
sanction on-air staff who use verbal crudity similar
to the language at issue in this case, even when it is
clear that the Commission's policy would be
inapplicable: as when the incident occurs after 10 pm



4
at night (when the policy does not apply) or under
circumstances where one of the FCC's explicit
exemptions would otherwise protect the language
that was used.

The Court of Appeals also miscalculated the
supposed harm that the Commission's indecency
policy imposes on broadcasters. The lower court
failed to appreciate, first, that the rule is not a total
prohibition, but is a limited policy, geared to those
hours when children are most likely to be within a
television viewing audience, and that it ceases to
apply to programs after 10 pm. Second, the lower
court reasoned, wrongly, that the Commission has in
the past reached supposedly different outcomes when
applying its indecency policy to allegedly similar
programs. However, those two broadcasts that
contained profane language the airing of the highly
realistic World War II movie "Saving Private Ryan"
and a television documentary called "The Blues"
which dwelt on a musical genre can be easily
distinguished.

There was logic to the FCC's application of the
artistic necessity exemption to "Saving Private Ryan"
which portrayed men in a life-and-death conflict, just
as there was also a reasoned basis for the
Commission's refusal to apply that exemption to the
program about blues music because the extreme
language there was neither compelled by, nor
critically integral to that subject. Third, the Court of
Appeals underestimated and in some instances failed
to recognize the practical tools that are available to
broadcasters and which make the blocking or
avoidance of indecent content highly feasible and not
cost-prohibitive. Such tools include delayed



5
broadcasts, or the use of minimal, seconds-long delay
together with the "bleeping" of profanity, as well as
standard indemnity agreements with on-air talent
that shift the burden of indecency fines and
attorneys fees from the station to the policy-violating
person.

Reversal of the Court of Appeals decision will also
restore vitality to the legal logic and common sense
inherent in FCC v. Pacifica Found., 438 U.S. 726
(1978). The lower court disempowered the force of
Pacifica by emphasizing a perceived decrease in
broadcast prevalence since the time of that decision
together with an increased influence of cable and
satellite television viewing in American homes. Yet,
as we point out, those trends are neither fully
accurate nor are they static. Current data shows that
broadcasting content is on the rise by some three and
a half million viewers compared to 2010. At the same
time, studies show a significant decrease in the
penetration by cable television within viewing
markets.

Moreover, the Court of Appeals also failed to
recognize that traditional broadcast content
continues to be pervasive even among Americans
who have cable or satellite systems, as a result of
FCC-mandated "must carry" rules applicable to
cable, or "carry one-carry all" rules for satellite
transmission. Thus, if in the future indecent content
is allowed to proliferate on over-the-air broadcasts,
that kind of troublesome content will necessarily find
its way into the homes of cable and satellite viewers
as well. If the FCC's policy is invalidated in this case,
then even those families who intentionally avoid the
purchase of viewing packages that contain indecent



6
material in their subscriptions to cable or satellite
systems will still have offensive content entering
their homes, this time from unregulated broadcast
content that is transmitted through must carry, or
carry one carry all rules. The "safe haven" for
children's viewing that was recognized and upheld in
Pacifica would, in that event, not only be eradicated
for over-the-air broadcast audiences but would be
eliminated to a certain degree for cable and satellite
viewers as well.

This Court can reaffirm the vitality of Pacifica
without resorting to the "scarcity of spectrum" factor
mentioned in Red Lion Broad. Co., v. FCC, 395 U.S.
367 (1969). Spectrum scarcity is neither a lynch-pin
nor an integral aspect of the Commission's authority
to regulate indecency. Instead, as pointed out by this
Court in Pacifica, such authority inheres in the
FCC's position as overseer of the "public interest" in
broadcast communications.

Lastly, reversal of the decision of the Court of
Appeals for the Second Circuit would be consistent
with the First Amendment paradigm outlined in this
Court's recent decision in Brown v. Entertainment
Merchants Assn., 564 U.S. ___, 131 S. Ct. 2729 (2010)
and also with the long line of cases that have upheld
indecency restrictions on expression in the case of
minors. In Brown, this Court stressed the narrow,
limited list of those exceptions like obscenity
where the content of communications can be
prohibited without running afoul of the First
Amendment. Because indecent content carried over
broadcast airwaves during children's viewing hours
is legally tantamount to obscenity, both can be
restricted constitutionally without imperiling the



7
generous breadth of the Free Speech provisions of
the First Amendment regarding other forms of
expression. In several cases in other contexts this
Court has reaffirmed that a form of indecent speech
that would be otherwise unrestricted for adults can
be prohibited when it is made available to children.

While NRB stands zealously committed to the
free speech, religious freedom, and free press
liberties of communicators, we would stress that
those rights must be properly understood
jurisprudentially before they can be properly applied.
The exceptions of the First Amendment must be
historically understood in the context of the
intentions of our Founders and as illustrated
through America's history and traditions and of
course in the precedents of this Court. This Court
has wisely been loathed to create new exceptions to
the First Amendment as illustrated by the Brown
decision. The corollary to that is also true: this Court
should be loathed to abandon its very short list of
narrow, well-defined, historically recognized
exceptions to free speech, which in this case includes
indecent expression when it is reasonably defined
and appropriately regulated by the Federal
Communications Commission.

For all of these reasons, this Court should reverse
the decision of the Second Circuit Court of Appeals.




8

ARGUMENT


I. THE COURT OF APPEALS FATALLY

IGNORED THE "COMMUNITY

STANDARDS" ELEMENT OF THE FCC

RULES


A. The "community standards" element is

an integral and constitutionally valid
part of the FCC policy

As the Court of Appeals noted in its decision, the
policy of the FCC measures the legality of a given
broadcast, and whether it is "patently offensive,"
only by reference to "contemporary community
standards for the broadcast medium." Fox Television
Stations, Inc. v. FCC, 613 F.3d 317, 322 (2d Cir.
2010). The question not answered by the Court of
Appeals was whether this "community standards"
element provided the sufficient notice to
broadcasters, thus giving them a "reasonable
opportunity to know what is prohibited." See: Fox
Television Stations, 613 F.3d at 327, citing Farrell v.
Burke, 449 F3d 470, 485 (2d Cir. 2006) for the "void
for vagueness" principle.

It is difficult to understand how the FCC's policy
could be properly analyzed without dealing with the
"community standards" element, yet the Court of
Appeals failed to analyze that issue. After all, the
FCC's foundational 2001 policy expressly stated that
the question of "whether the broadcast is `patently
offensive'" is to be "measured by contemporary
community standards for the broadcast medium."
Fox Television Stations, 613 F.3d at 322 (emphasis
added).



9

This Court has upheld the validity of regulations
that prohibit certain indecent expression based on a
"community standards" approach. In Ashcroft v.
ACLU, 535 U.S. 564 (2002) this Court upheld the
constitutionality of the Child Online Protection Act
(COPA), which outlawed "indecent and patently
offensive communications" over the World Wide Web
if they are deemed "harmful to minors;" that phrase
was fashioned after the obscenity test of Miller v.
California, 413 U.S. 15 (1973), to-wit: the material
proscribed is that which (a) an "average person,
applying contemporary community standards, would
find, taking the material as a whole and with respect
to minors, is designed to appeal to, or is designed to
pander to, the prurient interest;" (b) depicts specified
sexual content or actions "in a manner patently
offensive with respect to minors," and (c) "taken as a
whole, lacks serious literary, artistic, political, or
scientific value for minors." Ashcroft, 535 U.S. at 570,
citing 47 U.S.C. 231 (e)(6) (COPA) (internal
quotation marks omitted).

It is clear that the FCC's indecency policy has
relied on the substance of the Miller test as
incorporated into the COPA, an approach which was
validated in Ashcroft. While the First Amendment
infirmity that was claimed (and rejected) in Ashcroft
was one of overbreadth, and the basis of the Second
Circuit's opinion here was that the FCC's policy was
void for vagueness, that distinction does not
undermine our analogy to Ashcroft. There is a
functional inter-relation between the overbreadth



10
analysis and the vagueness test, the later being
subsumed on some occasions into the former. 2

It is clear that key elements of the FCC policy are
strikingly similar to the COPA law upheld in
Ashcroft. For instance, the policy at issue here
incorporates the "contemporary community
standards" element in determining whether a
broadcast is "patently offensive." Likewise, in
construing COPA this Court determined that the
question of whether a communication is "'patently
offensive' ... is also a question of fact to be decided by
... applying contemporary community standards."
Ashcroft, 535 U.S. at 576, n. 7.







In addition, the FCC policy here further
incorporates two critical elements similar to those
two tests which Congress had added to COPA and
which this Court in Ashcroft found to be central to its
decision upholding the Internet obscenity law there;
elements which were found missing, by contrast, in
the law under review in Reno v. ACLU, 521 U.S. 844
(1997), where this Court struck down on First
Amendment grounds the provisions of the
Communications Decency Act of 1996 (CDA)
Congress' first attempt to protect children from
pornographic material on the Internet. In Ashcroft
this Court noted that COPA had successfully adopted
two prongs of the Miller test: the first prong, the

2 " ... the vagueness of a law affects overbreadth analysis. The
Court has long recognized that ambiguous meanings cause
citizens to " `steer far wider of the unlawful zone' ... than if the
boundaries of the forbidden areas were clearly marked."
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 494 n. 6 (1982), reh. den. 456 U.S. 950 (citations omitted).



11
"prurient interest test," is further defined as
"material ...[which is] in some sense erotic." Ashcroft,
supra at 579, citing Erznoznik v. Jacksonville, 422
U.S. 205, 213, n. 10 (1975).

This prurient interest test is materially similar to
the criteria in the FCC policy; for, as the Court of
Appeals noted, that policy provides that a broadcast
which "describe[s] or depict[s] sexual or excretory
organs or activities," may be determined to be
"patently offensive," if, in part, "the material appears
to pander or is used to titillate ..." Fox Television
Stations, 613 F.3d 317, 321-22 (2d Cir. 2010).

The second critical Miller element present in
COPA (and also identifiable in the FCC policy here)
was the exemption for "works with serious literary,
artistic, political, or scientific value." Ashcroft at 578.
Both of these two elements the prurient interest
test and the serious value exemption - were found
lacking in the CDA, thus causing it to be invalidated
in Reno. Id. at 578.

A version of the serious value exemption can
likewise be identified in the FCC policy: exempted
from the policy are communications that are part of
"bona fide news" coverage, or which fit into the
"artistic necessity exception," i.e. where the
objectionable content is "demonstrably essential to
the nature of an artistic or educational work or
essential to informing viewers on a matter of public
importance." Fox, supra at 331. The FCC has
pledged itself to giving due deference to expression
that has "social, scientific, or artistic value." Id. at
332, citing Saving Private Ryan, 21 FCC Rcd. 4507,
at P 11. We see nothing in the FCC's treatment of



12
the offending communications at issue here that
casts doubt on the Commission's commitment to
proper free speech calibrations in applying its policy.

The Court of Appeals favorably cited Reno's
warnings about the First Amendment protection that
is to be afforded even "indecent" expression. Fox, 613
F.3d at 325. Yet, in the final analysis, for the reasons
stated above, the FCC policy here more closely
resembles the pornography restriction upheld in
Ashcroft, than the law struck down in Reno, and
should be upheld for many of the same reasons.

B. "Community standards" counsel in

favor of the FCC rulings

The Court of Appeals opined on the creative ways
in which current society invents new forms of
crudity, and suggested that perhaps "foul language
[is] common" more so now as compared to a few
decades ago in the immediate aftermath of FCC v.
Pacifica Found., 438 U.S. 726 (1978). Yet the societal
evidence confirms a different point: that both the
media, and the culture at large still continue to
recognize traditional boundaries of decency in ways
that are strikingly applicable to this case. Such
evidence should not be necessary, given the fact that
the FCC is an agency deemed to possess expertise in
broadcasting matters, and deference to its judgments
is the starting point. Nevertheless, this data is
further corroboration that the Commission has
properly gauged "community standards" for
broadcasters when it comes to indecency. 3

3 There is a difference of opinion among two Circuits regarding
whether a national rather than a local "community standard"



13







In the years since the FCC's last policy
refinement in 2004, broadcasting stations and
programmers have continued to treat on-air
profanity as a forbidden practice, even when it
concerns broadcasts that are likely to occur after the
hours regulated by the FCC policy (6 am to 10 pm) or
where there is no probable threat of Commission
action against them because the circumstances
clearly indicate that the policy would not be
applicable.

This year an NBC national television news
analyst was suspended for use of a word "d--k"
during a discussion of the President's news
conference.4 There could have been little chance of
an FCC sanction for that on-air comment, firstly,
because it fit squarely within the Commission's
exemption for "bona fide news" coverage; secondly
because that was the same word uttered in a
different broadcast for which the FCC found no
violation of its policy, a point noted by the Court of

should be applied in on-line obscenity cases. See: United States
v. Little
, 365 Fed. Appx. 159 (11th Cir. 2010); United States v.
Kilbride
, 584 F.3d 1240, 1252-54 (9th Cir. 2009). But this
distinction is irrelevant here: The FCC policy implies a national
broadcasting standard, the Commission is presumed to possess
the expertise to determine that national standard, and the
Respondent broadcasters are obviously engaged in national
broadcasting.
4 "NBC News Analyst Suspended for Obama Obscenity,"
FoxNews.com, June 30, 2011; http://nation.foxnews.com/nbc-
news/2011/06/30/nbc-news-analyst-utters-obama-obscenity-live-
air.




14
Appeals. Fox, 613 F.3d at 330. The fact remains that,
quite apart from fear of any FCC sanctions,
broadcasters are concerned about the sensibilities of
viewers, as well as about journalistic standards,
ratings, and the potential loss of advertising dollars
if they air profane content.







This type of voluntary enforcement among
broadcasters of a "community standard" regarding
the avoidance of profanity is a widespread practice.
A New York television station terminated a reporter
for using an on-air, four-letter profanity (the firing
was later amended to employee discipline in
arbitration); the station's spokesperson stated that
the reporter "violated a universally recognized taboo
in the broadcast industry." 5 In another instance, an
on-air TV anchor's use of a single profanity, even
though it occurred at a non-sanctionable time after
10 pm, forced her to publicly apologize for using a
"word that many people find offensive." 6 Public
apologies are customary, including among affiliates
of Fox, one of the respondents, for inadvertent
profanity even when it occurs in the late evening
hours when the FCC policy doesn't apply. 7 Apologies
are also routinely offered even when they are clearly
not punishable because they involve an innocent slip-

5 "Station Erred in Firing Reporter Who Cursed, Arbitrator
Says," New York Times.com, June 1, 2006.
6 "NBC anchor under fire after using F-word on live TV," The
Daily Voice.com, May 14, 2008.
7 "Fox 5's Ernie Anastos tells weatherman to `Keep F---ing that
chicken' on the air; says he's sorry," New Daily News.com,
September 17, 2009.



15
of-the tongue. 8 CNN has enforced a no-profanity
rule with one particular comedian known for her use
of crude language, even though she appears during
the network's New Year's Eve special, at hours not
reachable by the FCC's policy. 9

Similar standards exist in the radio industry
regardless of the technical application, or
inapplicability, of the FCC indecency policy, and
even include a suspension of a radio host for
profanity used off-the-air at a station-sponsored
event. 10 And, of course, similar examples for the lack
of tolerance for profanity and public depictions of
nudity exist in legal contexts: degrading profanity in
the workplace, together with posted images of
sexually suggestive nudity, have been found to
support charges of sexual harassment. 11 Public

8 "WDBJ slip-up a viral sensation," The Roanoke Times,
Roanoke.com, June 11, 2011.
9 "Kathy Griffin: If I Curse on New Year's Eve CNN Will
Immediately Yank Me Off Live TV," Mediaite.com, December
18, 2010.
10 "Karel and engineer fired in one-paragraph e-mail and three-
minute phone call," Examiner.com, November 11, 2008
(termination for profanities when the staff wrongly thought the
microphone was off); " `Mob' talk dooms radio show," New York
Post.com, April 23, 2011 (cancellation of program for profanity
during call-in show); "Air America Host Suspended for Clinton
Slur," The New York Times.com, April 4, 2008 (program host
suspended for "abusive, ad hominem language" at a public
event, though not on the air).
11 Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 811-
12 (11th Cir. 2010). See also: Beach v. Yellow Freight Sys., 312
F.3d 391, 394-95 (8th Cir. 2002); Tutman v. WBBM-TV,



16
officials, like firemen and teachers, have been
terminated or suspended over the displays of nude
photographs in the work place, or showing music
videos to students that contain sexually-charged
nudity. 12 With these common standards being
enforced nation-wide in other social situations, it is
hard to believe that broadcasters can claim that they
are left only to guess that what "indecency" means,
particularly in the context of the FCC's detailed
rules.

II. THE COURT OF APPEALS MISJUDGED

THE SUPPOSED "HARM" TO FREE

SPEECH


The Court of Appeals described a parade of free
speech horribles supposedly resulting from the FCC
policy, both "chilling effects" that were alleged to
have actually taken place, and those that may occur
in the future. Fox Television Stations, 613 F.3d 317,
333-35 (2010). 13 Amicus Curiae National Religious
Broadcasters is particularly sensitive to the needs of

Inc./CBS, Inc., 209 F.3d 1044, 1046-47 (7th Cir. 2000); Rush v.
Scott Specialty Gases, Inc
., 113 F.3d 476, 482-83 (3rd Cir. 1997).
12 Laura Fisherman, "Victoria Firefighters Terminated Over
Nude Photos at Station," Houston Employment Laws Blog.com,
April 13, 2011; Shannon Halligan, "Teacher resigns over racy
music video," WWLP.com, June 22, 2011.
13 To the extent the lower court considered future hypothetical
"burdens" on broadcasters who want to venture into indecent
content during the regulated time periods, it fails to meet the
high legal hurdle established by this Court: as invalidating the
FCC policy should be considered "strong medicine" to be used
"only as a last resort." FCC v. Pacifica Found., 438 U.S. 726,
743 (1978) (citations omitted).



17
broadcasters and public communicators to enjoy the
full panoply of First Amendment rights. Because we
represent Christian broadcasters and
communicators, we also have the unique status of
regularly advocating a triumvirate of those rights:
not only free speech and freedom of the press, but
freedom of religion as well. Nevertheless, despite our
heightened concern for First Amendment rights as a
general matter, we do not see them violated here,
and we conclude that the "chilling effects" relied on
by the lower court are illusory.

The Court of Appeals contends that the "chilling
effect" of the subject policy is evidenced by the
supposed disparity of outcomes in the application of
the FCC policy. The court contrasted the result in
"Saving Private Ryan," a "mainstream movie," as
against the outcome for "The Blues," a music
documentary. Id. at 333-35 (2010). Both involved
profanity, though the court emphasized that the
Commission permitted it in the former (a highly
graphic depiction of the Normandy Invasion during
World War II) yet it rebuked it in the later, a
contrast that bewildered the lower court. Id. at 333.

Yet the distinction made by the Commission had
a reasoned basis: profanity could easily be viewed as
integral to the visceral responses of soldiers caught
in the middle of unimaginable brutality; on the other
hand, while crude language might be a chosen
trademark among some musicians, it could hardly be
said that inclusion of profanity was compelled by, or
essential to a documentary that had as its real
subject matter an exploration of a particular musical
genre.



18

It also must be underscored that the policy at
issue is not a total ban on indecency. 14 Significantly,
there was a near-total absence of discussion by the
Court of Appeals of the actual time limitations of the
FCC policy, which only restricts indecent content
during those hours where children are most likely to
be watching television or listening to the radio. 15 As
this Court noted in its previous decision regarding
the FCC policy: it was one "which Congress has
instructed the Commission to enforce between the
hours of 6 am and 10 pm Public Telecommunications
Act of 1992, 16(a), 106 Stat. 954, note following 47
U.S.C. 303." FCC v. Fox Television Stations, Inc.,
556 U.S. ___, 129 S. Ct. 1800, 1806 (2009). Thus, as
the Court of Appeals noted, stations are free to slot
controversial matter after 10 pm, as one station did
for the on-air reading of a novel because of a
complaint regarding its "adult language." 16 Fox
Television Stations, supra at 334.

14 The Court of Appeals opines that it "can think of no reason"
why the rationale in United States v. Playboy Entertainment
Group
, Inc., 529 U.S. 803 (2000) which applied "strict scrutiny"
to regulations for cable television pornography, should not
apply here to broadcast content. Fox, at 327. But the obvious
"elephant in the room" here is the fact that unlike Playboy
which involved a "total ban" on speech, Id. at 325, the subject
policy is in this case is time-of-day limited.
15 We found only one mention, and that was only a partial one
in a footnote: a fleeting reference to the fact that the hours after
10:00 pm are within the "safe harbor" (exempt from indecency
restrictions). Id. at 324, n.5.
16 The inference by the lower court that the station's stated
concern over the "language" of the book violating the FCC
policy was the sole motivating factor in rescheduling the



19

There are also practical tools, standard in the
industry, to shift the burden of those financial costs
connected with the broadcast of indecent material
where the offending party disregards the policies and
warnings of the station. The University of California
lists a set of broadcast guidelines as an example
which includes this: "Among other things,
broadcasters should notify on-air talent,
personalities, and guests that reimbursement of FCC
fines and attorneys fees, as well as termination, may
result from talent's utterance or depiction of obscene,
indecent, or profane material during a broadcast." 17

Of course, broadcasters have still other options
available to insure effective compliance with FCC
policy: delayed broadcast of potentially indecent
content rather than live transmission; and use of
minimal broadcast transmission delay plus the

program is questionable, given the artistic value exception in
the FCC rule; nevertheless, for reasons other than merely the
"language" of the book (i.e. the subject matter of the novel itself)
the FCC policy may not have had much "chilling effect" if at all.
The novel, "I am Simmons," by Tom Wolfe presented graphic
sexual content that would also have made it, on the whole, a
problematic choice for programming consideration during
children's listening hours. According to one reviewer, the novel
portrayed a "vision of eroticism" on college campuses that was
"dark," and the plot centered on one particular "sex-crazed,
alcohol-drenched" college campus. Cristina Nehring, "Big Wolfe
on Campus," New York Magazine Book Review, Nymag.com,
May 21, 2005.
17 DowLohnes, "Obscenity, Indecency, and Profanity: Guidelines
For Broadcasters," June 2006 accessed at:
http://www.ucop.edu/irc/services/documents/guidelines.pdf.



20
"bleeping" of expletives. 18 The First Amendment
rights vaunted by the lower court are best preserved
by legal decisions that rightly discern the difference
between real threats and mere shadows. The Court
of Appeals has based its decision on perceived
burdens to broadcasters that are more shadow than
substance.

III.

T

REVERSAL WILL FOSTER FIRS

AMENDMENT VALUES

A. The Pacifica case was misapplied by

the Court of Appeals
In its decision, the Court of Appeals goes to great
lengths to describe the changes in the "media
landscape" in America, mentioning the influence of
cable television, satellite services, and the Internet;
that line of argument being only relevant to the
question of whether the assumptions underlying this
Court's ruling in FCC v. Pacifica Found., 438 U.S.
726 (1978), are still valid, notably the
"pervasiveness" of over-the-air broadcasts into the
homes of American families and the "accessibility to
children" of that content. Fox Television Stations,
613 F.3d 326-27. The network respondents had
argued below that those assumptions are pass and
therefore Pacifica is no longer authority, inter alia,
for the application of the intermediate level of
scrutiny that has been applied in its wake. The Court
of Appeals formally declined to nullify Pacifica, but

18 "The fact that technological advances have made it easier for
broadcasters to bleep out offending words further supports the
Commission's stepped-up enforcement policy." FCC v. Fox
Television Stations, 129 S.Ct. at 1813.



21
accomplished nearly the same result by reducing it
to practical oblivion, calling it "an intentionally
narrow opinion," and having "limited scope." Id. at
327 and 333. The Court of Appeals has strongly
suggested that the basis of Pacifica is to be
questioned. It's sympathy to the argument of the
networks reveals a misunderstanding both about the
current prevalence of broadcasting and about
Pacifica itself.

The lower court's reference to a perceived
increasing dominance of cable television cited above
and its views on the changes in the "media
landscape" underlay its low view of Pacifica's
vitality. Yet recent data is showing an interesting
development that contradicts the court's
assumptions. Studies are now demonstrating an
increase in over-the-air broadcast viewing by more
than three and a half million viewers in the last
year. 19 At the same time, cable television preference
has been declining to the lowest point since 1989. 20

19 According to data from Knowledge Networks' 2011 Ownership
Survey and Trend Report, a part of the The Home Technology
Monitor
, the number of Americans now relying exclusively on
over-the-air (OTA) television broadcasting in their home
increased to 45.6 million, up from 42 million one year
previously. "Over-the-air TV homes increase 10% to 46 million,"
Rapid TV News.com, August 6, 2011.
20 According to Nielsen NTI data, "... [w]ired cable penetration
... declined to 60.6% in May 2011 from 61.1% in May 2010 the
last time wired-cable penetration has been any lower was in
November 1989," "30.9% of American TV Households Now
Subscribe to Alternate Delivery, an All-Time High, While Wired
Cable Hits 21-Year Low," TVB Local Media Marketing
Solutions, TVB.org, June 9, 2011.



22
As these very recent trends suggest, there is an
inherent problem that comes with charting a legal
course by the ever-changing winds of technology and
consumer preference. To the extent that the Court of
Appeals concluded that Pacifica is of limited value
because over-the-air broadcast content is no longer
pervasive in American households, that conclusion
must be rejected.

The lower court also failed to recognize the
prevalence of over-the-air broadcast content that
enters homes through carriage by both cable
television companies and satellite services pursuant
to "must carry" regulations. The Cable Television
Consumer Protection and Competition Act of 1992
("Cable Act of 1992") amended the Communications
Act to mandate carriage of commercial and non-
commercial television broadcast signals on cable
systems. Pub. L. No. 102-385, 106 Stat. 1460 (1992).
Mandatory carriage of commercial broadcasts are
covered by 47 USC 534(a) which provides, in part:
"each cable operator shall carry, on the cable system
of that operator, the signals of local commercial
television stations and qualified low power stations
as provided by this section." The statute also defines
"local commercial television station" and "qualified
low power station". The FCC has no discretion in
determining these definitions or the number of
channels that cable operators are to devote to local
stations. 21

21 Must-carry obligations of cable operators were upheld in
Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 190
(1997) ("Turner II"), where it was noted that despite the growth
of cable, "broadcasting is demonstrably a principal source of
information and entertainment for a great part of the Nation's



23

Regarding mandated carriage of non-commercial
broadcasts, 47 USC 535(a) provides that "in
addition to the carriage requirements set forth in
section 534 of this title, each cable operator of a cable
system shall carry the signals of qualified
noncommercial educational television stations in
accordance with the provisions of this section."

Satellite systems have similar obligations,
(denominated as "carry one carry all"). Pursuant to
authority under the Satellite Home Viewer
Improvement Act of 1999 ("SHVIA"), Pub. L. No.
106-113, 113 Stat. 1501. 47 U.S.C. 338, et seq, the
FCC implemented rules at 47 C.F.R. 76.66 that
require that satellite carriers which provide
secondary transmission in the local market of a
television broadcast station of a primary
transmission of that station, "shall carry" on request
"all television broadcast stations within that local
market ..."

"Must carry" regulations are also relevant to this
Court's "safe harbor" reasoning regarding indecency
rules. In its prior decision, this Court upheld the
reasonableness of a Commission rationale that the
existence of "other media such as cable, justify a
more stringent regulation of broadcast programs so
as to give conscientious parents a relatively safe
harbor for their children." FCC v. Fox Television
Stations, 129 S. Ct. at 1819. Because broadcast
content is still a presence in the homes of a sizable
number of American homes, the reasoning of Pacifica

population," quoting from Turner Broadcasting System, Inc. v.
FCC, 512 U.S. 622, 662 (1994) ("Turner I").



24
still holds, and the need for a "safe harbor" still
exists.

Moreover, the prevalence of broadcast content
carried on cable and satellite systems through must-
carry regulations is an added argument for the
cogency of this "safe harbor" approach. Those parents
who carefully choose "family friendly" viewing
options through their cable or satellite subscriptions,
and refuse to buy programs and channels that are
likely to be filled with profanity or nudity or both,
will have their viewing preferences countermanded if
the respondents have their way in this case. This
would occur because "must carry" regulations would
continue to cause local broadcast content to be
brought into their homes on either cable or satellite
systems, while the content would then include the
kind of profane, indecent fare that those parents
were trying to flee.

While the Court of Appeal emasculated Pacifica,
by noting its "narrow" and "limited" reach, those
observations regarding its minimal scope are
actually beside the point. This Court has determined
that "we have never held that Pacifica represented
the outer limits of permissible regulation" when it
comes to indecency. Id. at 1815. In fact the Court of
Appeals appears to concede this, concluding that it
reached its First Amendment conclusions "regardless
of where the outer limit of the FCC's authority lies
..." to formulate indecency rules. Fox Television
Stations, 613 F.3d at 327.

Lastly, this Court need not utilize, let alone
address, the so-called "spectrum scarcity" rationale
articulated in Red Lion Broadcasting Co., v. FCC,



25
395 U.S. 367, 400-01 (1969) in order to uphold the
basic logic of the Pacifica decision. While Pacifica did
refer to Red Lion, it did so only in passing,
referencing the refusal in Red Lion to invalidate
other FCC regulations on the basis of vagueness.
Pacifica, supra at 742. "Spectrum scarcity" as a
doctrine has admittedly come under criticism. 22 Yet
it need not be a relevant factor let alone a lynchpin
here. The foundation for the constitutional aspect of
the ruling in Pacifica was the recognition of the
"uniquely pervasive presence" that television has in
the average American home; and how television
broadcasts are "uniquely accessible to children."
Supra at 748, n. 26 and 749. Moreover, the FCC's
authority to enforce an indecency policy that
prohibits indecent speech and nudity during
children's viewing hours does not depend on any
particular view of the technology of broadcast
"spectrum," but rather is firmly rooted in its
obligation to oversee the "public interest" in
broadcast communications. Supra at 741, n. 16.


B. The Brown case counsels reversal of

the Court of Appeals
The ability of government to restrict those forms
of indecent content that sweep minors within its
reach is a narrow, but well-defined exception to the
generous breadth of the Free Speech clause of the
First Amendment. When this Court hews to such
long-standing, and consistently applied exceptions, it

22 See generally: Thomas W. Hazlett, Sarah Oh, Drew Clark,
The Overly Active Corpse of Red Lion, Northwestern Journal of
Technology and Intellectual Property, Fall 2010.



26
also, as a necessary corollary, reinforces the
breathing room created for all other speech that is
protected. Overly-inventive obliteration of traditional
exceptions to the First Amendment is as dangerous a
judicial practice, on balance, as is the undisciplined
creation of new exceptions. Both approaches evidence
a Free Speech jurisprudence that has left its
moorings and is drifting away from the history, and
traditions that undergird the Constitution.

This Court avoided this dilemma by refusing to
recognize novel exceptions to the First Amendment
in its recent decisions in Brown v. Entertainment
Merchants Assn., 564 U.S. ___, 131 S.Ct. 2729 (2010)
(refusing to uphold a new free speech exception for
violent video games marketed to minors) and in
United States v. Stevens, 559 U.S. ___, 130 S.Ct. 1577
(2010) (depiction as opposed to commission of
animal cruelty held to have First Amendment
protection). The legislative provisions reviewed in
those cases were invalidated, not because they
lacked appealing policy; but rather because they
attempted to expand the traditional list of narrow
exceptions to the First Amendment by carving out
new categories of unprotected speech hitherto
unrecognized by constitutional precedent, or by
American history or tradition.

In Brown, the Court cited those "limited areas
such as obscenity ... incitement ... and fighting
words ..." where the content of speech can be
restricted; areas which represent "well-defined and
narrowly limited classes of speech, the prevention
and punishment of which have never been thought to
raise any Constitutional problem." Brown, 131 S. Ct.



27
2729, 2733, quoting from Chaplinsky v. New
Hamphire, 315 U.S. 568, 571-572 (1942).

Like obscenity, indecent content generated by
broadcast stations in violation of FCC policy, is part
of those "well-defined and narrowly limited classes of
speech" which can be punished without offending the
First Amendment. Indecent expression "surely lie[s]
at the periphery of First Amendment concern."
Pacifica, 438 U.S. at 743.

Similar to the traditional treatment of obscenity,
indecency which has minors within its trajectory is
also a category of expression which can be prohibited
without offending the First Amendment. Ginsberg v.
New York, 390 U.S. 629 (1968) (upholding state
statute banning sale of sexually-oriented materials
to minors even if it could not similarly prohibit the
sale to adults); Bethel School Dist. No. 403 v. Fraser,
478 U.S. 675, 684 (1986) (upholding suspension of
high school student who made indecent innuendos
during an assembly speech with a "captive" audience
of 14-year olds, noting that "the otherwise absolute
interest of the speaker in reaching an unlimited
audience [may be limited] where the speech is
sexually explicit and the audience may include
children;" and Board of Ed., Island Trees Union Free
School Dist. No. 26 v. Pico, 457 U.S. 853 (1982)
(school board may remove books in public school
library that are "vulgar").

This Court's most current Free Speech
jurisprudence strikes a prudent balance between
those handful of well-established, narrowly drawn
categories of expression that can be forbidden based
on content (including indecency and obscenity), and



28
the wide range of all other expression that cannot.
The FCC's policy follows that balance, and should be
upheld.

CONCLUSION


For all of the foregoing reasons, this Court should
reverse the judgment of the Second Circuit Court of
Appeals.

Respectfully submitted,

CRAIG L. PARSHALL
JOSEPH C. CHAUTIN III
Counsel of Record
ELISE M. STUBBE
GENERAL COUNSEL,
HARDY, CAREY, CHAUTIN &
NATIONAL RELIGIOUS
BALKIN, LLP
BROADCASTERS
Co-Counsel
9510 Technology Dr.
1080 West Causeway
Manassas, VA 20110
Approach,
cparshall@nrb.org
Mandeville, LA 70471
(703)330-7000
(985)629-0777
Attorneys for Amicus Curiae



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