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

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Released: September 14, 2011
NO. 10-1293
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 OF AMICI CURIAE FOCUS ON THE

FAMILY AND FAMILY RESEARCH COUNCIL

IN SUPPORT OF PETITIONERS






J. Robert Flores, Esq. (Counsel of Record)
HAMPTON ROAD STRATEGIES, LLC.
10410 Hampton Road
Fairfax Station, VA 22039
Tel.: 703-609-8731
Fax: 703-425-5018
rfloresesq@cox.net

i

COUNSEL FOR AMICI CURIAE

Christopher M. Gacek
FAMILY RESEARCH COUNCIL
801 G. Street, N.W.
Washington, D.C. 20001
Tel.: 202-393-2100
Fax: 202-393-2134

Carissa B. Mulder
1320 N. Veitch Street, #1001
Arlington, VA 22201
Tel.: 623-341-0993
Fax: 602-938-3550

Joel B. Campbell
YRULEGUI & ROBERTS, P.C.
7576 North Ingram, Ste. 104
Fresno, CA 93711
Tel.: 559-222-0660
Fax: 559-322-2880

Hannah Michelle Livingston
VINTAGE PRODUCTION CALIFORNIA, LLC
9600 Ming Avenue, Ste. 300
Bakersfield, CA 93311
Tel.: 661-869-8241
Fax: 661-869-815

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................. iii

INTEREST OF AMICI CURIAE ............................ 1

SUMMARY OF ARGUMENT ................................. 2

ARGUMENT ........................................................... 4

I. THE PACIFICA COURT'S REASONS FOR
UPHOLDING A BAN ON BROADCAST
INDECENCY STILL HOLD TRUE TODAY ............... 4

A. Non-Consenting Adults Still Have a
Right to be Left in Peace in Their
Homes ......................................................... 5

B. Children Still Deserve Protection
from Indecency. .......................................... 9

C. Broadcast Bandwidth Continues to
Grow More Scarce .................................... 12

II. THE FCC'S CURRENT INDECENCY REGIME
DOES NOT VIOLATE THE FIRST OR FIFTH
AMENDMENTS BECAUSE IT IS NOT
IMPERMISSIBLY VAGUE AND DOES NOT
HAVE AN IMPERMISSIBLE CHILLING
EFFECT. ........................................................... 14

A. The FCC's Current Enforcement
Policy is Not Unconstitutionally
Vague Because It Provides Clear

ii
Notice to Broadcasters Regarding
What Content is Indecent. ...................... 15

B. The Potential "Chilling Effect"
Under the FCC's Current
Enforcement Regime is No Greater
than that Under the Previous Policy,
which has Already Passed
Constitutional Muster in Pacifica. .......... 19

C.
A Context-based Approach to
Determining Indecency Will Not
Chill Constitutionally Protected
Speech. ..................................................... 22

D. The Potential "Chilling Effect" is
Mitigated by a "Safe Harbor" for
Broadcasts between 10:00 p.m. and
6:00 a.m. ................................................... 22

E. Any Potential "Chilling Effect" of the
Indecency Regulations is No Greater
than that Imposed by Regulation of
Obscenity. ................................................. 24

III. STRICT SCRUTINY IS INAPPLICABLE TO
REVIEW OF INDECENCY RESTRICTIONS ON
BROADCASTING. ............................................... 26

IV. THE
LIMITATIONS
ALLOWED ON
BROADCAST SPEECH ARE GROUNDED IN
CONSTITUTIONAL
PRINCIPLES THAT
HEARKEN BACK TO AMERICA'S FOUNDING. ...... 27

CONCLUSION ...................................................... 29

iii

TABLE OF AUTHORITIES

Cases


Action for Children's Television v. FCC,

852 F.2d. 1332 (D.C. Cir. 1988) .............. 21, 23

In re Application of WGBH Educ. Found.,
69
F.C.C.2d
1250 (1978) ................................ 20

Brown v. Entertainment Merchants Assn.
,

131 S. Ct. 2729 (2011) .............................. 26-29

Cohen v. California
,

403 U.S. 15 (1971) ........................................... 9

In re Citizens Complaint Against Pacifica

Found. Station WBAI (FM),
56
F.C.C.2d
94 (1975) ...................................... 5

Eckstein v. Melson,

18 F.3d. 1181 (4th Cir. 1994) ......................... 25

FCC v. Fox Television Stations, Inc.,
129 S. Ct. 1800 (2009) ............................. 12, 27

FCC v. Pacifica Foundation,

438 U.S. 726 (1978) ............................... passim

Fox Television Stations, Inc., v. FCC,

613 F.3d 317 (2nd Cir. 2010) .......................... 17

Fox Television Stations, Inc., v. FCC,

489 F.3d 444 (2nd Cir. 2007) ......................... 17

iv

Frisby v. Schultz,

487 U.S. 474 (1988) ......................................... 8

Ginsberg v. New York,

390 U.S. 629 (1968) ................................... 9, 29

Hill v. Colorado,
530 U.S. 703 (2000) ................................... 6-9

Holder v. Humanitarian Law Project,

130 S.Ct. 2705 (2010) ............................... 17-18

Joseph Burstyn, Inc. v. Wilson,

343 U.S. 495 (1952) ....................................... 28

Katz v. United States

389 U.S. 347 (1967) ......................................... 6

Meyer v. Nebraska,

262 U.S. 390 (1923) ....................................... 10

Miller v. California,

413 U.S. 15 (1973) ................................... 24-25

Olmstead v. United States,

277 U.S. 438 (1928) ........................................ 5

Pierce v. Society of the Sisters of the Holy Names of
Jesus and Mary,

268 U.S. 510 (1925) ....................................... 10

Red Lion Broadcasting Co., Inc. v. FCC,

395 U. S. 367 (1969) ...................................... 12


v
Reno v. American Civil Liberties Union,

521 U.S. 844 (1997) ................................. 18-19

Roth v. United States,

354 U.S. 476 (1957) ......................................... 2

Rowan v. Post Office Dept.,

397 U.S. 728 (1970) ..................................... 4-7

United States v. Petrillo,

332 U.S. 1 (1947) ........................................... 25

United States v. Williams,

553 U.S. 285 (2008) ....................................... 18

Ward v. Rock Against Racism

491 U.S. 781 (1989) ....................................... 18

Wisconsin v. Yoder,
406 U.S. 205 (1972) ..................................... 10

Statutes:

18 U.S.C. 1464 ................................................... 4, 19

Other Authorities:


Brad Reed, "FCC Hauls in $19.6 Billion for 700
MHz Auction," Network World (March 19, 2008). .. 13

Center on Media and Child Health at Children's
Hospital, Harvard Medical School, and Harvard
School of Public Health,
www.cmch.tv/mentors_parents/messaging.asp ...... 10


vi
DANIEL PATRICK MOYNIHAN, Defining Deviancy
Down
, THE AMERICAN SCHOLAR (Winter 1993) ......... 3

DIANE E. LEVIN, PH.D. and JEAN KILBOURNE,
ED.D, SO SEXY SO SOON: THE NEW SEXUALIZED
CHILDHOOD AND WHAT PARENTS CAN DO TO
PROTECT THEIR KIDS (Ballantine Books, N.Y.
2008) ......................................................................... 11

EILEEN ZURBRIGGEN, REPORT OF THE APA TASK
FORCE ON THE SEXUALIZATION OF GIRLS
(Washington, D.C. 2007) .......................................... 11

In re Industry Guidance on the Commission's

Case Law Interpreting 18 U.S.C. 1464 and
Enforcement Policies Regarding Broadcast

Indecency, 16 F.C.C.R. 7999 (2001) .............. 15-16, 18

In the Matter of Complaints Against Various

Broadcast Licensees Regarding Their Airing of
the "Golden Globes" Awards Program
, 16
F.C.C.R. 8003 (2004) ................................................ 16

Prepared Remarks of Chairman Julius
Genachowski, Federal Communications

Commission, FCC Spectrum Summit,
"Unleashing America's Invisible Infrastructure,"
Washington, D.C. (October 21, 2010) ...................... 13

ROBERT BORK, SLOUCHING TOWARD GOMORRAH
(New York: Regan Books 1997) ................................. 3


1

INTEREST OF AMICI CURIAE1


FOCUS ON THE FAMILY is a non-profit
religious corporation, headquartered in Colorado,
committed to strengthening the family in the United
States and abroad by providing help and resources
that are grounded in biblical principles. The
president of Focus on the Family, Jim Daly, hosts
the flagship Focus on the Family radio broadcast
about family issues carried daily on 2,000 radio
outlets in the United States and heard daily by 1.5
million North America listeners. Among the
resources Focus on the Family provides are Thriving
Family magazine and PluggedIn, which helps
parents make wise media discernment choices for
their families. PluggedIn resources include a
website, PluggedIn.com, which receives more than 1
million visits every month, a mobile phone app, and
1- to 2- minute radio features that reach more than 6
million listeners weekly. Focus on the Family is
concerned about the widespread distribution of
obscenity and profanity.

FAMILY RESEARCH COUNCIL ("FRC") is a
non-profit organization located in Washington, D.C.
It exists to develop and analyze governmental
policies affecting the family. FRC is committed to
strengthening traditional families in America and

1 The parties gave blanket consents to the filing of amicus
curiae briefs. Pursuant to SUP. CT. R. 37.6, Amici state that no
counsel for any party authored this brief in whole or in part,
and no person or entity, other than Amici and their counsel,
made a monetary contribution intended to fund the preparation
of or submission of this brief.

2
advocates continuously on behalf of policies designed
to accomplish that goal.

SUMMARY OF ARGUMENT

"[I]t is apparent that the unconditional phrasing
of the First Amendment was not intended to protect
every utterance." Roth v. United States, 354 U.S.
476, 483 (1957). Amici contend that society has a
strong and abiding interest, firmly grounded in the
First Amendment, in maintaining standards of
decency. This interest extends especially to the
preservation of standards of decency with respect to
the materials broadcast into the sanctuary of our
homes. This Honorable Court should not assume
that the public clamors for more indecency, as
Respondents and their supporters suggest. There is
no evidence whatsoever that the Federal
Communications Commission ("FCC") has been
inundated with complaints of the lack of indecent
programs on broadcast TV or radio. Rock singer
Bono has no more right to shout "f***ing brilliant" in
the homes of unsuspecting American families than
we would have in his. Similarly, the indecent
comments of singer/actress Cher and actress Nicole
Richie are out of place in the homes of those families
who thought that network television represented a
safe haven for family viewing. Neither these
personalities nor their network sponsors have rights
under the U.S. Constitution greater than the rights
of the homeowners they invaded over the public
airwaves.

Over the past fifty years, some courts, in the
name of expanding free speech rights, have ignored
the interest in societal decency, the government's

3
interest in the protection of children from indecent
content, and the right to be left alone, free from the
constant barrage of indecent communications. This,
coupled with lax enforcement on the part of the FCC
of indecency law until the beginning of the previous
decade, has enabled the purveyors of indecency to
overrun the rights of decent Americans, who are now
bombarded by degrading, indecent, coarse, and
sexually charged content on an almost around-the-
clock basis.

Emboldened by the success of their counterparts
in other forms of media, broadcasters have been
pushing the envelope by gradually imposing more
and more indecent content on an unsuspecting
public. Like the frog in the kettle, society is being
coarsened while broadcasters have, in the words of
the late Senator, Daniel Patrick Moynihan, "defined
deviancy down." DANIEL PATRICK MOYNIHAN,
Defining Deviancy Down, THE AMERICAN SCHOLAR 17
(Winter 1993), cited in ROBERT BORK, SLOUCHING
TOWARD GOMORRAH 3 (New York: Regan Books
1997). The communications of broadcasters over the
public airwaves have often radically diverged from
the interests of the public itself that broadcasters are
required to serve. Broadcasters now seek to
invalidate all regulation of indecency on the public
airwaves, leaving no safe haven whatsoever to the
majority of Americans who desire decent
programming.

Amici contend that it is critical to recognize the
very real and vital societal interests in maintaining
standards of decency, in conjunction with individual
free speech rights. The FCC's revised guidance with
respect to what constitutes indecency does exactly
this and it does so well within the confines of the

4
First Amendment. Further, it logically follows the
very type of context-based analysis endorsed by this
Court in FCC v. Pacifica Foundation, 438 U.S. 726
(1978).

The unproven claims of broadcast media that the
FCC's action is uneven, arbitrary and capricious, do
not provide sufficient reason to cavalierly toss aside
the protections historically afforded the viewing
public consistent with constitutional precedent.


Amici urge this Court to follow that precedent and
find that the FCC's action is a constitutionally
permitted application of 18 U.S.C. 1464.

American broadcast TV and radio are meant to
be available to all. If the court opens the floodgates
to so-called "adult material" at all hours on
broadcast TV and radio in the name of the First
Amendment, then TV and radio will be open only to
adults, not children, and, at that, adults who desire
only more indecent material. Television viewers will
be forced to listen to indecent material. Profanity
and sex will dominate daytime radio. Nothing in the
First Amendment requires this result.

ARGUMENT

I.
THE PACIFICA COURT'S REASONS FOR
UPHOLDING A BAN ON BROADCAST
INDECENCY STILL HOLD TRUE TODAY.

The
Pacifica Court relied on several important
reasons in announcing its decision upholding the ban
on broadcast indecency. The first of these reasons
was a recognition that viewers who did not consent
to view indecency have a "right to be left alone" in
their own homes. 438 U.S. at 748, citing Rowan v.

5
Post Office Dept., 397 U.S. 728 (1970). Second, the
Court affirmed that the State has an important
interest in protecting children from indecent
material. Pacifica, 438 U.S. at 748. Third, the Court
recognized that broadcast bandwidth is a scarce
commodity that should be regulated in the public
interest. Id. at 731, n.2 (citing In re Citizens
Complaint Against Pacifica Found. Station WBAI
(FM), New York, New York, 56 F.C.C.2d 94, 97, 9
(1975). Each of these reasons has only grown in
force in the ensuing years since Pacifica.

A. Non-Consenting Adults Still Have a
Right to be Left in Peace in Their
Homes.

Pacifica affirmed the rights of all Americans
who did not wish to be bombarded with indecent
speech while listening to the radio or watching
television, and that the individual's "right to be left
alone" in the privacy of his or her home outweighed
the rights of an intruding broadcaster to
disseminate indecent communications. Pacifica, 438
U.S. at 748, citing Rowan v. Post Office Dept., 397
U.S. 728 (1970).
This "right to be left alone" had previously been
described by Justice Brandeis in his revered dissent
in Olmstead v. United States as "the most
comprehensive of rights and the right most valued
by civilized men." 277 U.S. 438, 478 (1928)
(Brandeis, J., dissenting). Both the language and
sentiment of Justice Brandeis' statement has
continued to be a part of our jurisprudence to this
day.

6
In Rowan, a case addressing the right of
homeowners to opt out of unwanted advertisements
sent through the mail, the Supreme Court held that
"the right of every person `to be let alone' must be
placed in the scales with the right of others to
communicate." Rowan, 397 U.S. at 736.2 Balancing
the competing rights in that case, the Court
acknowledged "we are inescapably captive audiences
for many purposes," but that "a sufficient measure of
individual autonomy must survive to permit every
householder to exercise control over unwanted mail,"
and that the householder should be "the exclusive
and final judge of what will cross his threshold" even
if this has the effect of "impeding the flow of ideas."
Id.
The Court continued: "[w]eighing the highly
important right to communicate ... against the very
basic right to be free from sights, sounds, and
tangible matter we do not want, it seems to us that a
mailer's right to communicate must stop at the
mailbox of an unreceptive addressee." Id. at 736-737.
The Court concluded:
We therefore categorically reject the
argument that a vendor has a right under

2 The Court has since opined that the common law "right to be
left alone" is sometimes more accurately characterized as an
"interest" that the States can choose to protect in certain
situations. See Hill v. Colorado, 530 U.S. 703, 717, n.24 (2000),
referencing Katz v. United States, 389 U.S. 347, 350-351 (1967).
Whether the "right to be left alone" is defined as a "right" or an
"interest" makes little difference in the argument as to whether
it should be protected by the FCC in the circumstances of
indecency flowing into one's own home. Whatever semantics
are used, it has been consistently protected by our
jurisprudence.

7
the Constitution or otherwise to send
unwanted material into the home of another.
If this prohibition operates to impede the
flow of even valid ideas, the answer is that
no one has a right to press even "good" ideas
on an unwilling recipient. That we are often
"captives" outside the sanctuary of the home
and subject to objectionable speech and other
sound does not mean we must be captives
everywhere. The asserted right of a mailer,
we repeat, stops at the outer boundary of
every person's domain.

Id. at 738 (citation omitted).
There are certainly differences between Rowan
and Pacifica. The former dealt with printed material
sent through the mail, whereas the latter dealt with
broadcast media. The statute discussed in Rowan,
admittedly, merely allowed individual homeowners
to affirmatively "opt out" of receiving certain
mailings, whereas the Pacifica case allowed the FCC
to regulate all broadcasts during certain times of
day, whether or not the recipients of these
broadcasts would have been subjectively offended by
the content. Nonetheless, because of the unique
characteristics of broadcast media the Supreme
Court relied on the principles enunciated in Rowan
to uphold the constitutionality of FCC regulation of
indecency. Pacifica, 438 U.S. at 748-749.
Since Pacifica, the Court has continued to uphold
the "right to be left alone" in one's own home
articulated by Justice Brandeis. More recently, the
Court stated:


8
The unwilling listener's interest in avoiding
unwanted communication has been
repeatedly identified in our cases. It is an
aspect of the broader "right to be let alone"
that one of our wisest Justices [Brandeis]
characterized as "the most comprehensive of
rights and the right most valued by civilized
men." The right to avoid unwelcome speech
has special force in the privacy of the home
and its immediate surroundings....

Hill v. Colorado, 530 U.S. 703, 716-717 (2000)
(internal citation omitted).
The Court in Hill balanced this right to be let
alone with the First Amendment rights of others,
stating that, "The right to free speech ... may not be
curtailed simply because the speaker's message may
be offensive to his audience. But the protection
afforded to offensive messages does not always
embrace offensive speech that is so intrusive that
the unwilling audience cannot avoid it." Id. at 716
(citing Frisby v. Schultz, 487 U.S. 474, 487 (1988)).
Thus, the intrusive nature of some speech is to be
considered. The Hill Court further said:
It may not be the content of the speech, as
much as the deliberate "verbal or visual
assault," that justifies proscription. Even in
a public forum, one of the reasons we
tolerate a protester's right to wear a jacket
expressing his opposition to government
policy in vulgar language is because offended
viewers can "effectively avoid further
bombardment of their sensibilities simply by
averting their eyes."

9

The recognizable privacy interest in
avoiding unwanted communication varies
widely in different settings. It is far less
important when "strolling through Central

Park" than when "in the confines of one's own
home," or when persons are "powerless to

avoid" it.

Hill, 530 U.S. at 716, quoting Cohen v. California,
403 U.S. 15, 21-22 (1971) (emphasis supplied;
internal citations omitted).

B. Children Still Deserve Protection
from Indecency.

As the second reason for the holding in Pacifica,
the Court held that "broadcasting is uniquely
accessible to children, even those too young to read,"
Pacifica, 438 U.S. at 749, and expounded as follows:

Pacifica's broadcast could have enlarged a
child's vocabulary in an instant. Other forms
of offensive expression may be withheld from
the young without restricting the expression
at its source. Bookstores and motion picture
theaters, for example, may be prohibited
from making indecent material available to
children. We held [in Ginsberg v. New York,
390 U.S. 629 (1968)] that the government's
interest in the "well-being of its youth" and
in supporting "parents' claim to authority in
their own household" justified the regulation
of otherwise protected expression. The ease
with which children may obtain access to

10
broadcast material, coupled with the
concerns recognized in Ginsberg, amply
justify special treatment of indecent
broadcasting.

Id. at 749-750 (internal citations omitted).
The Court thus held that since broadcasting was
uniquely available to children merely by turning on
the television or radio, it could be regulated to a
greater extent than other forms of media. This is
still true today. The choices parents make to limit
indecency, such as keeping television out of the home
or accepting only broadcast television, should be
respected.3
Moreover, the constitutional rule accords with
sound scientific reasons for protecting children from
indecent broadcasts. According to the Center on
Media and Child Health at Children's Hospital at
Harvard, media's influence on children is "integral to
their growing sense of themselves, of the world, and
of how they should interact with it."4 The Center
notes that the influence of media has been linked to
negative health outcomes, such as smoking, obesity,
risky sexual behaviors, eating disorders, poor body
image, anxiety, and violence. The Center concludes

3 The Court has long recognized a Constitutional right to bear
and raise children in accordance with one's beliefs. Meyer v.
Nebraska
, 262 U.S. 390 (1923); Pierce v. Society of the Sisters of
the Holy Names of Jesus and Mary, 268 U.S. 510 (1925);
Wisconsin v. Yoder, 406 U.S. 205 (1972).
4 Center on Media and Child Health at Children's Hospital,
Harvard Medical School, and Harvard School of Public Health,
available at: www.cmch.tv/mentors_parents/messaging.asp
(last accessed Sept. 5, 2009).


11
that "content matters--all media are educational."
Id. Others observe the connection between media
and early sexualization:

The problem is that the sexualized childhood
is harming young children at the time when
the foundations for later sexual behavior and
relationships are being laid.... They are
forced to deal with sexual issues when they
are too young, when the way they think
leaves them vulnerable to soaking up the
messages that surround them with few
resources to resist.

DIANE E. LEVIN, PH.D. and JEAN KILBOURNE, ED.D,
SO SEXY SO SOON: THE NEW SEXUALIZED CHILDHOOD
AND WHAT PARENTS CAN DO TO PROTECT THEIR KIDS,
63-64 (Ballantine Books, N.Y. 2008).
Eileen Zurbriggen, the chair of the American
Psychological Association's Task Force on the
Sexualization of Girls, reports, "The consequences of
the sexualization of girls in media today are very
real and are likely to be a negative influence on girls'
healthy development. We have ample evidence to
conclude that sexualization has negative effects in a
variety of domains, including cognitive functioning,
physical and mental health, and healthy sexual
development." EILEEN ZURBRIGGEN, REPORT OF THE
APA TASK FORCE ON THE SEXUALIZATION OF GIRLS
(Washington, D.C. 2007).
In addition to scientific studies, the Supreme
Court has recently pointed out that common sense
alone establishes that indecency is harmful to
children:


12
There are some propositions for which scant
empirical evidence can be marshaled, and
the harmful effect of broadcast profanity on
children is one of them. One cannot demand
a multiyear controlled study, in which some
children are intentionally exposed to
indecent broadcasts (and insulated from all
other indecency), and others are shielded
from all indecency.... Here it suffices to
know that children mimic the behavior they
observe--or at least the behavior that is
presented to them as normal and
appropriate.... Congress has made the
determination that indecent material is
harmful to children, and has left
enforcement of the ban to the Commission. If
enforcement had to be supported by
empirical data, the ban would effectively be a
nullity.

FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800,
1813 (2009).

C. Broadcast Bandwidth Continues to
Grow More Scarce.

It has been proposed that "technological
advances have eviscerated the factual assumptions
underlying" Red Lion Broadcasting Co., Inc. v. FCC,
395 U. S. 367 (1969) and Pacifica. Fox v. FCC, 129
S. Ct. at 1821 (Thomas, J., concurring). In
particular, the claim is made that "[b]roadcast
spectrum is significantly less scarce than it was 40
years ago." Id. That statement is highly debatable.

13

While it is correct that scientific advances have
made us more efficient users of electromagnetic
spectrum, the demand for spectrum has grown
exponentially in the past twenty years as the need
for mobile, wireless Internet use has exploded.
Spectrum that is most desirable is that with a
frequency under 3 GHz. In particular, devices using
these frequencies receive signals through an
antenna, not a dish, which greatly assists mobility
and convenience. The tremendous demand for
spectrum is revealed by the enormous prices that
have been raised in FCC auctions in the past decade.
For example, spectrum in the 700 MHz bands
brought in $19.6 billion dollars at an auction in
March 2008. Brad Reed, "FCC Hauls in $19.6
Billion for 700 MHz Auction," Network World (Mar.
19, 2008).

Federal Communications Commission Chairman
Julius Genachowski has argued recently that there
is likely to be a "35X increase in mobile broadband
traffic over the next 5 years." Prepared Remarks of
Chairman Julius Genachowski, Federal
Communications Commission, FCC Spectrum

Summit, "Unleashing America's Invisible
Infrastructure," Washington, D.C. (Oct. 21, 2010) at
3. Chairman Genachowski estimates that "around
300 additional megahertz of spectrum [will be
needed] by 2014 to accommodate this growing
demand." Id. at 4. The FCC estimates that the
value of that spectrum could be "as high as $120
billion." Id.
In fact, obtaining additional spectrum for
wireless broadband is so critical to America's
wireless economy that Chairman Genachowski has
made a number of proposals. In one of them

14
"current spectrum licensees, such as TV
broadcasters, could voluntarily relinquish spectrum;
the FCC would then auction spectrum for flexible
wireless broadband, and some portion of the
proceeds would be shared with the old licensee." Id.
at 6. Amici make no comment on the wisdom of this
proposal, but we note that it undermines the factual
basis for the proposition that spectrum is not a
scarce resource. At present, spectrum is finite and
costly, and it is so valuable that the FCC is willing to
attempt to cannibalize the holdings of powerful
groups like broadcasters to acquire more of it for
wireless use.

II. THE FCC'S CURRENT INDECENCY REGIME
DOES NOT VIOLATE THE FIRST OR FIFTH
AMENDMENTS BECAUSE IT IS NOT
IMPERMISSIBLY VAGUE AND DOES NOT
HAVE AN IMPERMISSIBLE CHILLING
EFFECT.


A primary concern regarding speech restrictions
that are vague or substantially overbroad is that the
regulations will have a "chilling effect" on otherwise
protected speech. Amici contend that the FCC's
current indecency regime is neither impermissibly
vague nor substantially overbroad and thus cannot
be said to have a chilling effect on protected speech.
Nonetheless, Respondents contend that the
current indecency regime has changed substantially,
and exerts a chilling effect on protected speech. In
looking at changes in the FCC's enforcement
approach, we see that 1) the Commission now
believes that even "fleeting expletives" can constitute
indecency and be subject to regulation, and 2) that in

15
enforcing the ban on indecent expletives, it takes a
context-based approach.

It is not the intent of Amici to take lightly the
concerns over the potential for chilled expression
caused by vague regulations or to minimize the
importance of preventing substantially overbroad
regulations from having a chilling effect on speech.
The FCC's current regulatory regime offends neither
doctrine because 1) it is no more vague than the
previous regime that was upheld in Pacifica; 2) the
potential "chilling effect" under the FCC's current
enforcement regime is no greater than under the
previous policy; 3) a context-based approach is
necessary to determine indecency; 4) it provides a
safe harbor; and 5) it poses no greater chill than the
ban on obscenity.

A. The FCC's Current Enforcement Policy is
Not Unconstitutionally Vague Because It
Provides Clear Notice to Broadcasters
Regarding What Content is Indecent.


The FCC's indecency regime does not violate the
Fifth Amendment because it is not impermissibly
vague. In 2001, the FCC published a policy
statement to provide guidance as to its enforcement
policies with respect to broadcast indecency. It
established two fundamental aspects for indecency
findings. First, material "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." In re Industry
Guidance on the Commission's Case Law
Interpreting 18 U.S.C. 1464 and Enforcement
Policies Regarding Broadcast Indecency
, 16 F.C.C.R.

16
7999, 8002 7 (2001) ("2001 Industry Guidance").
Second, "the broadcast must be patently offensive as
measured by contemporary community standards for
the broadcast medium." Id. at 8002, 8.

The policy statement further explained that the
determination of whether a broadcast is "patently
offensive" turns on the "full context" in which the
material is broadcast and is "highly fact-specific." Id.
at 8002-8003 9 (emphasis omitted). It identifies
three factors which guide the analysis of whether
content is patently offensive:
(1) the explicitness or graphic nature of the
description or depiction of sexual or excretory
organs or activities; (2) whether the material
dwells on or repeats at length description of
sexual or excretory organs or activities; and (3)
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 (emphasis omitted).
These factors are sufficiently precise to put
broadcasters on notice as to what material is
unacceptable for broadcasting between the hours of 6
a.m. and 10 p.m. Although the Commission had not
regulated fleeting expletives prior to the issuance of
the 2004 Guidance, it is reasonable to believe that
the 2001 Guidance could apply to fleeting expletives.
Certain words, such as the "f-word" and "s-word"
have an inherently sexual or excretory connotation.
Even when used as an intensifier, as the singer Bono
did during the 2003 Golden Globe awards, the "f-
word" and similar words are used as intensifiers

17
precisely because they connote sexual or excretory
activity. In the Matter of Complaints Against Various
Broadcast Licensees Regarding Their Airing of the

"Golden Globes" Awards Program, 16 F.C.C.R. 8003
8 (2004) ("2004 Guidance").

Due to the inherently sexual or excretory nature
of certain words, broadcasters are on notice that
those words are presumptively patently offensive.
See Fox Television Stations, Inc., v. FCC, 613 F.3d
317, 33132 (2nd Cir. 2010). Instead of banning these
words outright, however, the FCC examines the
words in context, as required by the Court in
Pacifica, 438 U.S. at 750.

The Second Circuit is misguided in holding that
forbidding fleeting expletives "[bears] no rational
connection to the Commission's actual policy,"
because the FCC "[has] not instituted a blanket ban
on expletives," 613 F.3d at 324, quoting Fox
Television Stations, Inc., v. FCC, 489 F.3d 444, 458
(2nd Cir. 2007). The FCC allows broadcasters more
leeway by using a context-based approach rather
than banning all expletives. Broadcasters are on
notice that these words are presumptively patently
offensive. If the FCC were to ban all utterances of
these words, regardless of context, broadcasters
would likely complain that the policy made no
exception for content with harsh language that was
possessed of extraordinary merit. Short of
eliminating all restrictions on broadcasting, it is
difficult to see how the FCC can better balance
broadcasters' interest in knowing what material is
permissible and the public's interest in maintaining
decency in broadcasting. And as this Court has
noted, "perfect clarity and precise guidance have
never been required even of regulations that restrict

18
expressive activity." Holder v. Humanitarian Law
Project
, 130 S.Ct. 2705, 2719 (2010), quoting United
States v. Williams, 553 U.S. 285, 304 (2008) (quoting
Ward v Rock Against Racism, 491 U.S. 781, 794
(1989)).

Likewise, the FCC's guidelines provide sufficient
guidance to broadcasters regarding nudity that is
considered patently offensive. The second factor in
the FCC's 2001 Guidance is "whether the material
dwells on or repeats at length descriptions of sexual
or excretory organs or activities." 2001 Guidance at
8003 10. Despite respondents' attempts to argue
otherwise, buttocks and breasts can be considered
sexual or excretory organs, if only because the naked
public display of these body parts is usually
considered an affront to decency. Additionally,
although respondents argue that the nudity is brief,
even they do not argue that it can be characterized
as "fleeting." Respondents admit that the camera
repeatedly returns to the actress's naked buttocks
and breasts. Response in Opposition to Petition for
Writ of Certiorari at 89.

The character's nudity is the point of the entire
scene. Were the point of the scene only to show the
difficulties that ensue when a parent becomes
involved with a new romantic partner, it would have
been easy to do so by implying the character's nudity
rather than dwelling on it. Alternatively, CBS could
have shown the offending episode during the safe
harbor period, away from the eyes of impressionable
children.

The Court's decision in Reno v. American Civil
Liberties Union, 521 U.S. 844 (1997) supports the
FCC's enforcement policy. In declining to apply
Pacifica to the Communications Decency Act, the

19
Court noted that there were significant differences
between the two cases. In Pacifica, unlike in Reno,
the medium at issue had long been subject to
regulation. Additionally, the objectionable radio
broadcast "represented a rather dramatic departure
from traditional program content," and was not
categorically prohibited, but restricted to certain
airtimes. Reno, 521 U.S. at 867.
Like radio broadcasting, and unlike Internet
content, television broadcasting has long been
subject to regulation. Also like radio broadcasting,
and unlike Internet content, television content can
be confined to hours when children are unlikely to be
in the audience.
Furthermore, like the Carlin broadcast, the
objectionable content contained in the Golden Globes
and NYPD Blue broadcasts represented a sharp
departure from broadcasting norms. Were this not
the case, surely respondents would have provided
examples of the numerous other uses of the "f-word,"
"s-word," and sustained shots of nude buttocks and
breasts. Such examples are conspicuous by their
absence.

B. The Potential "Chilling Effect" Under
the FCC's Current Enforcement
Regime is No Greater than that
Under the Previous Policy, which has
Already Passed Constitutional
Muster in Pacifica.

In
Pacifica, this Court upheld the FCC indecency
regime then being used to enforce 18 U.S.C. 1464
(1976 ed.) which prohibited "any obscene, indecent or
profane language by means of radio

20
communications" and determined not only that the
"Filthy Words" monologue of George Carlin was
"indecent," but that the FCC's regulation of such
speech on the airwaves was in no way
unconstitutional. Following the Court's opinion in
Pacifica, the FCC reported that it would not attempt
to promote an expansive interpretation of the
indecency concept. See, e.g., In re Application of
WGBH Educ. Found.
, 69 F.C.C.2d 1250, 1254 (1978)
("We intend strictly to observe the narrowness of the
Pacifica holding.") In this regard, the Commission's
opinion, as approved by the Court, relied in part on
the repetitive occurrence of the "indecent" words in
question.

Much has been made of the fact that in Pacifica
indecent words were used repeatedly, whereas in the
broadcasts that are the subject of this action they
were used once or twice. To support their argument
that the Pacifica Court did not intend to institute a
ban on "fleeting expletives," Respondents point to
the following language:

It is appropriate, in conclusion, to emphasize
the narrowness of our holding. This case does
not involve a two-way radio conversation
between a cab driver and a dispatcher, or a
telecast of an Elizabethan comedy. We have
not decided that an occasional expletive in
either setting would justify any sanction or,
indeed, that this broadcast would justify a
criminal prosecution. The Commission's
decision rested entirely on a nuisance
rationale under which context is all-
important. The concept requires

consideration of a host of variables.

21

Pacifica, 438 U.S. at 750 (emphasis added).

Respondents would have us believe the Court
would have looked unfavorably on a ban of "fleeting
expletives" and that the regulation was upheld only
because Mr. Carlin's offense was so egregious. This
could not be further from the truth, as shown by the
further statement from the Court:

To say that one may avoid further offense by
turning off the radio when he hears indecent
language is like saying that the remedy for
an assault is to run away after the first blow.
One may hang up on an indecent phone call,
but that option does not give the caller a
constitutional immunity or avoid a harm
that has already taken place.

Id. at 749-749.
In fact, it was not the Court that approved
"fleeting expletives." On the contrary, it was the
FCC which, in the years immediately following
Pacifica, merely wished not to pursue claims that
didn't reach the levels it deemed sufficiently
egregious. "Repetitious use of Carlin's `seven dirty
words' effectively became the FCC's yardstick for
`indecency.'" Action for Children's Television v. FCC,
852 F.2d. 1332, 1336 (D.C. Cir. 1988).

Permitting "fleeting expletives" is akin to giving
broadcasters "one free bite" at indecency. However,
for a young child viewing "family programming" in
prime time, indecent language is still indecent,
whether it is said once or repeated ad infinitum.


22
C. A Context-based Approach to
Determining Indecency Will Not
Chill Constitutionally Protected
Speech.

Respondents argue that the FCC's current
indecency regime chills protected speech because it
has evolved from the policy in place in the years
immediately following Pacifica, and because the
determination of indecency is based on the context in
which words are uttered and whether it is offensive
by contemporary community standards.
Far from rendering the current enforcement
regime vague, and therefore causing a chilling effect
on speech, the determination of context is absolutely
necessary to determining indecency. See Pacifica,
438 U.S. at 750. As noted above, the FCC's policies
are not new; in 2001, the FCC published a policy
statement to provide guidance as to its enforcement
policies with respect to broadcast indecency. As the
FCC moved to a stricter regulation of indecency, no
longer requiring repetitious use of the "seven filthy
words," it realized that context was important, and
gave adequate guidance to assist broadcasters in
determining whether content was suitable or
whether it would be considered indecent.

D. The Potential "Chilling Effect" is
Mitigated by a "Safe Harbor" for
Broadcasts between 10:00 p.m. and
6:00 a.m.


This is not the first time the FCC has modified
its enforcement standards. After a decade of
refusing to take action unless material involved

23
repeated use, for shock value, of words similar to or
identical to those satirized in the Carlin "Filthy
Words" monologue, the FCC developed a generic
definition of indecency which was addressed by the
Court of Appeals for the D.C. Circuit in 1988. The
court upheld the generic definition of indecency,
which is not dissimilar to the definition currently in
use, but noted the important position of the "safe
harbor" in preventing the possibility of a chilling
effect on speech:

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

Action for Children's Television, 852 F.2d at 1342-
1343 (emphasis supplied).
Since that case, there has been a clearly
delineated "safe harbor" between the hours of 10:00
p.m. and 6:00 a.m., when "indecent" broadcasting is
allowed. It is reasoned that this allows sufficient
time for adults to view indecent content, while
simultaneously limiting its intake by young children.
If broadcasters are concerned that certain
content may be considered indecent in the FCC's
context-based approach, they are not prevented from
airing it during the "safe harbor" time periods. This

24
mitigates any claim of a "chilling effect" on speech
that would otherwise be protected.

E. Any Potential "Chilling Effect" of the
Indecency Regulations is No Greater
than that Imposed by Regulation of
Obscenity.

Unlike indecent speech, which is allowed
between 10:00 p.m. and 6:00 a.m., when children are
unlikely to hear or view it, obscene speech is never
allowed in broadcast media and is not given First
Amendment protection. While the federal obscenity
statute does not expressly define obscenity, this
Court has devised a three-part test to identify
obscenity in Miller v. California:

(a) Whether "the average person, applying
contemporary community standards" would
find the work, taken as a whole, appeals to
the prurient interest; (b) whether the work
depicts or describes, in a patently offensive
way, sexual conduct specifically defined by
the applicable state [or federal] law; and (c)
whether the work, taken as a whole, lacks
serious literary, artistic, political, or
scientific value.

413 U.S. 15, 24 (1973) (internal citations omitted).
Since its inception the Miller test has been
attacked as vague and ambiguous, and anti-
obscenity laws have been targeted as having a
"chilling effect" on protected speech. The Miller
Court itself acknowledged "[t]hat there may be
marginal cases in which it is difficult to determine

25
the side of the line on which a particular fact
situation falls" but that this "is no sufficient reason
to hold the language too ambiguous to define a
criminal offense." Id. at 27, n.10 (quoting United
States v. Petrillo
, 332 U.S. 1, 7 (1947)). The Court
further stated, "If the inability to define regulated
materials with ultimate, god-like precision
altogether removes the power of ... Congress to
regulate, then `hard core' pornography may be
exposed without limit to the juvenile...." Id.
This Court, and the lower courts, have
repeatedly refused to strike down obscenity laws,
even while acknowledging the potential chilling
effect on protected speech. "While laws such as the
one at issue indeed may chill the expression of
protected speech in certain instances, such
secondary effects seem unavoidable if the federal
anti-obscenity statute is to be enforced." Eckstein v.
Melson, 18 F.3d 1181, 1187 (4th Cir. 1994).
As
in
Miller and later cases relying on its
standard, the Court in Pacifica did not strike down
the FCC's regulation merely because of the
possibility that it would chill protected speech.
Pacifica, 438 U.S. at 743. As shown above, the FCC
has done all in its power to avoid the possibility of
chilling protected speech. Its current enforcement
regime is no more vague than that regime addressed
in Pacifica, and as required by that case, it takes a
context-based approach in defining indecency.
Furthermore, it provides a "safe harbor" between
10:00 p.m. and 6:00 a.m. Thus, Respondents cannot
be heard to complain that the FCC's regulatory
regime for indecency "chills" their legitimate
expression.



26
III. STRICT SCRUTINY IS INAPPLICABLE TO
REVIEW OF INDECENCY RESTRICTIONS ON
BROADCASTING.


Strict scrutiny is not applicable to the review of
indecency restrictions on broadcasting for several
reasons. First, as the Court noted in Pacifica
(declining to apply strict scrutiny to the FCC's
regulations), patently offensive language, while
perhaps subject to First Amendment protection,
"surely lies at the periphery of First Amendment
concern" and "the constitutional protection accorded
to a communication containing such patently
offensive sexual and excretory language need not be
the same in every context." Pacifica, 438 U.S. at 743,
747 (emphasis supplied). There remain ample
outlets for patently offensive sexual and excretory
language, even within the broadcast context.
Broadcasters are permitted to air such material
during the "safe harbor" period from 10 p.m. to 6
a.m., for a total of fifty-six hours per week. Amici
simply contend that the hours of 6 a.m. to 10 p.m.,
when children are likely to be in the audience, are
not appropriate contexts for broadcasting patently
offensive sexual and excretory language.

Secondly, strict scrutiny does not apply in the
broadcast context. The Court recently applied strict
scrutiny to a state statute prohibiting the sale or
rental of violent video games to minors. See Brown
v. Entertainment Merchants Ass'n
, 131 S. Ct. 2729
(2011). However, there are significant differences
between the sale or rental of video games and
broadcasting. The most important difference
pertains to the uniquely pervasive nature of
broadcasting. See Pacifica, 438 U.S. at 748.

27
Broadcasting enters the home of every person with a
television set. In contrast, a person must take
affirmative steps to buy or rent a video game. The
only way to prevent broadcast television from
entering the home is not to have a television at all--
and that, indeed, reduces adults to viewing what is
only fit for children. The second difference lies in the
likelihood of harm to children. The Court recognized
in Pacifica that society has an interest in protecting
children from exposure to indecent material.
Pacifica, 438 U.S. at 74950. Children's access to
video games is limited by their ability to visit stores
or afford the games. Parents have a greater ability to
restrict their children's access to games by refusing
to purchase gaming consoles or the games
themselves. In contrast, a preschool child can easily
turn on the television while a parent is in another
room. For these reasons, the FCC's indecency
regulations in no way resemble the restriction on
speech at the source that was subjected to strict
scrutiny in Brown.

IV. THE
LIMITATIONS
ALLOWED ON
BROADCAST SPEECH ARE GROUNDED IN
CONSTITUTIONAL
PRINCIPLES THAT
HEARKEN BACK TO AMERICA'S FOUNDING.


We are cognizant of that fact that at least one
member of this Court has argued that the more
limited protections afforded broadcast speech for
decades "lack[] any basis in the Constitution." Fox v.
FCC
, 129 S. Ct. at 1821 (Thomas, J., concurring).
However, while Amici are similarly concerned about
any possible deep intrusion into First Amendment
rights, we believe that the more limited protections

28
afforded broadcast speech by Pacifica are well-
grounded in original constitutional principles.
These principles recognized that government
may legitimately take steps to reduce the likelihood
that children will be exposed to harmful materials.
As has been expressed recently, "[t]he Framers could
not possibly have understood `the freedom of speech'
to include an unqualified right to speak to minors."
Brown v. Entertainment Merchants Assn., 131 S. Ct.
at 2759 (Thomas, J., dissenting). Additionally, the
Founders "would not have understood `the freedom
of speech' to include a right to speak to children
without going through their parents." Id.

As this court observed in Pacifica "[w]e have long
recognized that each medium of expression presents
special First Amendment problems." Pacifica, 438
U.S. at 748 (citing Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495, 502-503). The Court proceeded to
remark that "broadcast media have established a
uniquely pervasive presence in the lives of all
Americans." Id. at 748. While some have claimed
that the emergence of new media has undermined
Pacifica's observation about broadcasting's
penetration of the American home, in fact,
Petitioners have demonstrated convincingly that
broadcast TV and radio still maintain "a uniquely
pervasive presence" in American life. Petitioners'
Brief at 44-46.

That deep presence links to the second argument
presented in Pacifica justifying the limits Congress
has allowed for broadcast speech. That is,
"broadcasting is uniquely accessible to children, even
those too young to read." Pacifica, 438 U.S. at 749.
Echoing the founding constitutional principles
supporting parental protection of children, noted

29
above, the Pacifica court stated that bookstores and
movie theaters "may be prohibited from making
indecent material available to children." Id. at 749
(emphasis added). The Court pointed out that
previously it had held "that the government's
interest in the `well-being of its youth' and in
supporting `parents' claim to authority in their own
household' justified the regulation of otherwise
protected expression." Id., citing Ginsberg v. New
York, 390 U.S. at 640 and 639.

Therefore, the limitations allowed on broadcast
speech are actually grounded in constitutional
principles hearkening back to America's founding.
They recognize that each communications media
presents its own set of considerations as to how it
may affect children. Some have virtually no impact;
some, like broadcasting, may have a powerful effect
on children. Accordingly, "legislature[s] [can]
properly conclude that parents and others, teachers
for example, who have... primary responsibility for
children's well-being are entitled to the support of
laws designed to aid discharge of that
responsibility." Brown, 131 S. Ct. at 2760 (quoting
Ginsberg, 390 U.S. at 639). Therefore, it is
constitutionally permissible that regulations like
those promulgated by the Commission in this
instance should be able to restrict profanity and
nudity during certain hours of the day when children
are more likely to be listening or watching
unattended by their parents.

CONCLUSION


For the foregoing reasons, Amici pray that this
Honorable Court reverse the judgment of the court

30
below and declare that the FCC's current broadcast
indecency enforcement regime is constitutional.

Respectfully submitted,

J. Robert Flores, Esq. (Counsel of Record)

HAMPTON ROAD STRATEGIES, LLC.
10410 Hampton Road
Fairfax Station, VA 22039
Tel.: 703-609-8731
Fax: 703-425-5018

September 14, 2011



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