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

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Released: November 10, 2011

No. 10-1293

IN THE
Supreme Court of the United States
d
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
Petitioners,
—v.—
FOX TELEVISION STATIONS, INC., ET AL.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF AMICI CURIAE

OF THE AMERICAN CIVIL

LIBERTIES UNION, THE NEW YORK CIVIL LIBERTIES

UNION, THE AMERICAN BOOKSELLERS FOUNDATION

FOR FREE EXPRESSION, THE AMERICAN FEDERATION

OF TELEVISION AND RADIO ARTISTS, AFL-CIO,

DIRECTORS GUILD OF AMERICA, MINNESOTA PUBLIC

RADIO/AMERICAN PUBLIC MEDIA, THE NATIONAL

ALLIANCE FOR MEDIA ARTS AND CULTURE,

THE NATIONAL COALITION AGAINST CENSORSHIP,

THE NATIONAL FEDERATION OF COMMUNITY

BROADCASTERS, PEN AMERICAN CENTER, SCREEN

ACTORS GUILD, SOUTHERN CALIFORNIA PUBLIC RADIO,

THE TULLY CENTER FOR FREE SPEECH, WASHINGTON

AREA LAWYERS FOR THE ARTS, THE WOODHULL

FREEDOM FOUNDATION, AND WRITERS GUILD OF

AMERICA, WEST, IN SUPPORT OF RESPONDENTS

STEVEN R. SHAPIRO
Counsel of Record
CHRISTOPHER A. HANSEN
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, New York 10004
(212) 549-2500
sshapiro@aclu.org

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...................................... iii
INTERESTS OF THE AMICI CURIAE..................... 1
STATEMENT OF THE CASE.................................... 1
SUMMARY OF ARGUMENT .................................... 3
ARGUMENT ............................................................... 5
I. THE FCC’S REGULATION OF INDECENT
SPEECH UNDER 18 U.S.C. § 1464
HAS BEEN INCONSISTENT AND
UNPREDICTABLE ............................................ 5
A. FCC Enforcement Of The Indecency Ban
Since Pacifica Has Been Inconsistent,
Unpredictable, and Highly Subjective .... 5

B. FCC Enforcement, Both Before And
After Its New Fleeting Expletives Rule,
Has Chilled Valuable Expression .......... 11

II.
SECTION 1464 SHOULD BE DECLARED
UNCONSTITUTIONAL INSOFAR AS IT
AUTHORIZES THE FCC TO PROHIBIT
INDECENT SPEECH .......................................... 16

A. Case Law Since Pacifica Has Recognized
The Vagueness And Overbreadth Of The
FCC’s Indecency Test .................................. 16

i


B. Broadcasting Is No Longer “Uniquely
Pervasive” And “Uniquely Accessible To
Children” – The Characteristics That In
Pacifica Were Said To Justify FCC
Censorship Of Constitutionally Protected
Expression ....................................................... 19

C. The FCC’s Unbridled Discretion In
Deciding Whether A Program Is
“Patently Offensive,” And Its Second-
Guessing Of The Artistic Judgments Of
Filmmakers And Programmers, Are
Classic Hallmarks Of An
Unconstitutional Censorship System ... 22

D. The Post 10-p.m. Safe Harbor Does Not
Save the FCC’s Censorship Regime ...... 30
CONCLUSION ......................................................... 33
ADDENDUM ............................................................ 1a
STATEMENTS OF INTEREST ................... 1a
ii


TABLE OF AUTHORITIES

CASES

Ark. Educ. Television Comm’n v. Forbes,
523 U.S. 666 (1998) ............................................... 23
Ashcroft v. ACLU, 535 U.S. 564 (2002) .............. 18, 19
Ashcroft v. ACLU, 542 U.S. 656 (2004) .................... 29
Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002) ............................................... 11
Becker v. FCC, 95 F.3d 75 (D.C. Cir. 1996). ............. 30
Bolger v. Youngs Drug Prod. Corp.,
463 U.S. 60 (1983) ................................................... 6
Brown v. Entm’t Merch. Ass’n,
131 S. Ct. 2729 (2011) ........................................... 22
Butler v. Michigan, 352 U.S. 380 (1957) .................. 18
Carey v. Population Servs. Int’l,
431 U.S. 678 (1977) ............................................... 18
CBS Corp. v. FCC, No. 06-3575, 2011 WL 5176139
(3rd Cir. Nov. 2, 2011) ............................................. 4
City of Lakewood v. Plain Dealer Publ’g Co.,
486 U.S. 750 (1988) ............................................... 23
Cohen v. California, 403 U.S. 15 (1971) ............. 27, 28
Denver Area Educ. Telecomm. Consortium, Inc. v.
FCC, 518 U.S. 727 (1996) .......................... 16, 21, 28
FCC v. Fox Television Stations, Inc.,
129 S. Ct. 1800 (2009) .................................... passim
FCC v. Pacifica Found., 438 U.S. 726 (1978) ... passim
Forsyth Cnty. v. Nationalist Movement,
505 U.S. 123 (1992) ............................................... 23
iii


Fox Television Stations, Inc. v. FCC,
489 F.3d 444 (2nd Cir. 2007) .......................... passim
Fox Television Stations, Inc. v. FCC,
613 F.3d 317 (2nd Cir. 2010) .......................... passim
Freedman v. Maryland, 380 U.S. 51 (1965) ............. 29
Holder v. Humanitarian Law Project,
130 S.Ct. 2705 (2010) ............................................ 19
Manual Enter., Inc. v. Day, 370 U.S. 478 (1962) ..... 16
Miami Herald Publ’g Co. v. Tornillo,
418 U.S. 241 (1974) ............................................... 23
Miller v. California, 413 U.S. 15 (1973) ................... 23
Morse v. Frederick, 551 U.S. 393 (2007) .................. 28
Nat’l Broad. Co. v. United States,
319 U.S. 190 (1943) ............................................... 21
Nat’l Endowment for the Arts v. Finley,
524 U.S. 569 (1998) ............................................... 24
Reno v. ACLU, 521 U.S. 844 (1997) .................. passim
Sable Commc’n of Cal., Inc. v. FCC,
492 U.S. 115 (1989) ........................................... 6, 18
United States v. Playboy Entm’t Grp.,
529 U.S. 803 (2000) ................................... 22, 32, 33
United States v. Williams,
553 U.S. 285 (2008) ......................................... 18, 19
Winters v. New York, 333 U.S. 507 (1948) ............... 23

CONSTITUTION AND STATUTES

U.S. Const. amend. I .......................................... passim
18 U.S.C. § 1464 ................................................. passim
iv


ADMINISTRATIVE MATERIALS

Annual Assessment of the Status of Competition in
the Market for the Delivery of Video Programming,
21 FCC Rcd 2503 (2006) ........................................ 20
Complaints Against Various Broad. Licensees
Regarding Their Airing of the “Golden Globe
Awards” Program,
18 FCC Rcd 19859 (2003) ........ 7
Complaints Against Various Broad. Licensees
Regarding Their Airing of the “Golden Globe
Awards” Program,
19 FCC Rcd 4975 (2004) ...... 7, 8
Complaints Against Various Television Licensees
Concerning Their December 31, 2004 Broad. of the
Program “Without a Trace,”
21 FCC Rcd 2732 (2006) ........................................ 10
Complaints Against Various Television Licensees
Regarding Their Broad. on November 11, 2004, of
the ABC Television Network’s Presentation of the
Film “Saving Private Ryan,”
20 FCC Rcd 4507 (2005) .................................... 8, 22
Complaints Regarding Various Television Broad.
Between February 2, 2002 and March 8, 2005,
21 FCC Rcd 2664 (2006)
(“Omnibus Order”) ................................. 9, 10, 23, 25
Complaints Regarding Various Television Broad.
Between February 2, 2002 and March 8, 2005,
21 FCC Rcd 13229 (2006)
(“Remand Order”) ...................................... 10, 25, 32
Industry Guidance on the Commission’s Case Law
Interpreting 18 U.S.C. § 1464 and Enforcement
Policies Regarding Broadcast Indecency,
16 FCC Rcd 7999 (2001) ........................................ 17
v


KBOO Found., 18 FCC Rcd 2472 (2003) .................... 7
New Indecency Enforcement Standards,
2 FCC Rcd 2726 (1987) ............................................ 6
Pacifica Found., Inc., 2 FCC Rcd 2698 (1987) ........... 6
Regents of the Univ. of Cal., 2 FCC Rcd 2703, on
reconsideration, 3 FCC Rcd 930 (1987) .................. 6

OTHER AUTHORITIES

ARBITRON, RADIO TODAY 89 (2010 ed.), available at
http://www.arbitron.com/downloads/
RadioToday_2010.pdf ............................................ 30
Bill Carter, WB Censors Its Own Drama for Fear of
FCC Fines, N.Y. TIMES, Mar. 23, 2006, available at
http://www.nytimes.com/2006/03/23/arts/
23bedf.html ............................................................ 21
Center for Creative Voices in Media et al., Letter to
William Davenport, No. DA 06-1739
(Sept. 21, 2006) ...................................................... 31
Elizabeth Jenson, Soldier’s Words May Test PBS
Language Rules, N.Y. TIMES, July 22, 2006,
available at http://www.nytimes.com/2006/07/22/
arts/television/22pbs.html ..................................... 12
Gail Shister, Shadow of Censorship Over 'Prize',
PHILA. INQUIRER, Sept. 20, 2006 ........................... 14
Jacques Steinberg, Eye on F.C.C., TV and Radio
Watch Words, N.Y. TIMES, May 10, 2004, available
at
http://www.nytimes.com/2004/05/10/us/eye-on-
fcc-tv-and-radio-watch-words.html?pagewanted=
all&src=pm ............................................................ 12
vi


John Crigler & William Byrnes, Decency Redux: The
Curious History of the New FCC Broadcast
Indecency Policy
, 38 CATH. U. L. REV. 329 (1989) ... 6
Kara Canty, FCC’s Punishing Fines Have Chilling
Effect on Broadcasters, BALT. SUN, Oct. 13, 2006,
available at
http://www.kintera.org/site/apps/nlnet/content2.asp
x?c=hrLQKWPGLuF&b=1368219&ct=3039413 .. 11
Leo Tolstoy, WHAT IS ART? (1897) ............................ 24
Louis Wiley, Jr., Censorship at Work, CURRENT.ORG,
July 17, 2006, available at
www.current.org/fcc/fcc0613indecency.shtml ....... 11
Mark Dawidziak, PBS: Language in Burns’ ‘War’
Worth Fighting For, SUN JOURNAL, July 31, 2006,
available at
http://www.sunjournal.com/node/175642 ............. 15
MUSEUM OF MODERN ART, THREE GENERATIONS OF
TWENTIETH-CENTURY ART (1972) .......................... 24
Nielsen Media Research, Top Tens and Trends,
Television, available at
http://www.nielsen.com/us/en/insights/top10s.html
(last accessed 10/31/2011) ..................................... 30
Rebecca Dana, @$#&*% Ken Burns! PBS Scrubbing
G.I. Mouths With Soap, N.Y. OBSERVER, Oct. 2,
2006, available at
www.observer.com/node/52747 ....................... 11, 12
Satellite TV Penetration Up Significantly,
CONSUMERAFFAIRS.COM, Aug. 18, 2005, available at
www.consumeraffairs.com/news04/2005/
jdpower_satellite.html ........................................... 20
vii


Saul Hansell, More People Turn to the Web to Watch
TV, N.Y. TIMES, Aug. 1, 2005, available at
http://www.nytimes.com/2005/08/01/technology/
01video.html?pagewanted=all .............................. 20
Timothy Jay, WHY WE CURSE (2000) ....................... 27
Timothy Jay, Statement of Expert Opinion, WBEZ-
FM, No. EB-04-IH-0323, (Sept. 21, 2004) ............. 28
Worries Over Profanity in CBS’ 9/11 Show, Assoc.
Press, Sept. 3, 2006, available at
http://today.msnbc.msn.com/id/14657719/ns/
today-entertainment/t/worries-over-profanity-cbs-
show/ ...................................................................... 13
Zach Pontz, More turning to Web to watch TV,
movies, CNNTECH, Feb. 6, 2009, available at
http://articles.cnn.com/2009-
0206/tech/internet.tv_1_hulu-internet-tv-
joost?_s=PM:TECH ................................................ 20

viii


INTERESTS OF THE AMICI CURIAE1


Amici are a diverse group of media, arts and
advocacy organizations concerned about free
expression in broadcasting. Many of the
organizations have felt the real-world chilling effect
of indecency censorship. Their individual statements
of interest are set out in an addendum to this brief.

STATEMENT OF THE CASE

Federal law prohibits “obscene, indecent or
profane” speech on broadcast radio and television.
18 U.S.C. § 1464. This case was brought to challenge
a new rule promulgated by the FCC in 2004,
presumptively banning even one “fleeting expletive”
as indecent, and the agency’s application of that rule
to two broadcasts. On review, the court of appeals
held that the fleeting expletives rule was arbitrary
and capricious, in violation of the Administrative
Procedures Act. Fox Television Stations, Inc. v. FCC,
489 F.3d 444 (2nd Cir. 2007) (“Fox I”). The court
found that the FCC had not given a reasonable
explanation for its dramatic change in policy – from
its many statements over the years that a mere
fleeting expletive would not be sufficient for an
indecency finding, to a wholesale reversal in 2004,

1 The parties have filed blanket consents to the filing of amicus
curiae
briefs. Pursuant to Rule 37.6, counsel for amici states
that no counsel for a party authored this brief in whole or in
part, and no counsel for a party made a monetary contribution
intended to fund the preparation or submission of this brief. No
person other than amicus curiae, its members or its counsel
made a monetary contribution to its preparation or submission.
1


announcing that a single vulgarity is presumptively
both indecent and profane.
In reversing the court of appeals decision, this
Court found that the FCC’s new policy was neither
arbitrary nor capricious. FCC v. Fox Television
Stations, Inc.,
129 S. Ct. 1800 (2009) (“FCC”).
Specifically, the Court found that the FCC had
acknowledged its change of course and had provided
rational reasons for expanding its enforcement
activities. The Court then declined to address the
constitutional questions presented by the FCC’s new
rule; instead, it remanded the case, “see[ing] no
reason to abandon our usual procedures in a rush to
judgment without a lower court opinion.” Id. at 1819.
On remand, the court of appeals held that the
FCC’s
fleeting
expletives
policy
was
unconstitutionally vague and created a chilling effect
that goes far beyond the fleeting expletives at issue
in this case. Fox Television Stations, Inc. v. FCC, 613
F.3d 317, 319 (2nd Cir. 2010) (“Fox II”). It first noted
that the speech covered by the FCC’s indecency
policy “is fully protected by the First Amendment.”
Id. at 325. The court expressed concern over the
rationale for providing less protection for speech on
broadcast television than on other media - including
cable television and the Internet - as “[t]he past
thirty years has seen an explosion of media sources,
and broadcast television has become only one voice in
the chorus.” Id. at 326. Nonetheless, the court
concluded that “regardless of where the outer limit of
the FCC’s authority lies, the FCC’s indecency policy
is unconstitutional because it is impermissibly
vague.” Id. at 327. Pointing to the many
inconsistencies
and
subjective
elements
of
2


Commission decision making, including the so called
“exceptions” to the indecency policy, the court held
that the indecency test fails to provide “broadcasters
the notice that is required by the First Amendment.”
Id. at 333. The court concluded by finding that there
was “ample evidence in the record that the FCC’s
indecency policy has chilled protected speech” and
“promot[ed] wide self-censorship of valuable material
which should be completely protected under the First
Amendment.” Id. at 334-35.
This Court granted certiorari to determine
“[w]hether
the
[FCC’s]
current
indecency-
enforcement regime violates the First or Fifth
Amendment to the United States Constitution.”

SUMMARY OF ARGUMENT

As
a
general
proposition,
the
First
Amendment protects indecent but non-obscene
speech. This Court’s decision in FCC v. Pacifica
Found.
, 438 U.S. 726 (1978), allowing the
government to bar indecent speech from the
broadcast airwaves, has always been a constitutional
outlier. The time has come to declare the indecency
provisions of 18 U.S.C. § 1464 unconstitutional. At
the very least, the FCC’s “fleeting expletive” rule
must be struck down as a violation of the First
Amendment.2

2 As the unconstitutionality of the “fleeting expletive” rule is
fully discussed in Respondents’ Briefs, amici do not address it
here. See, e.g., Brief of Respondent Fox Television Stations, Inc.
et al. at 26-39; Brief of Respondent ABC Television Affiliates
Ass’n et al. at 17-27; Brief of Respondent CBS Television
Network Affiliates Ass’n et al. at 28-39. Likewise, amici endorse
3


Thirty years after Pacifica, it is abundantly
clear that the authority to regulate indecent speech
has produced a patchwork quilt of inconsistent and
arbitrary decision making by the FCC that is utterly
lacking in the precision that this Court has required
in delineating the line between permissible and
impermissible speech.
Even taken on its own terms, Pacifica does not
confer the broad authority that the FCC has since
claimed. More fundamentally, the factual and
doctrinal premises that this Court relied on in
Pacifica have been eroded over the past three
decades. In 1978, cable television was still a rarity in
most homes. This Court could not have anticipated,
and did not anticipate, the Internet revolution and
the development of communications platforms like
Facebook and Twitter, that make it impossible any
longer to characterize broadcast radio and television
as “uniquely pervasive” and “uniquely accessible to
children.”
In Reno v. ACLU, 521 U.S. 844 (1997), this
Court condemned an indecency test identical to the

but do not separately address the arguments concerning the
unconstitutionality of the application of the FCC’s policies to
nudity fully discussed in Respondents’ Briefs. See, e.g., Brief of
Respondent ABC, Inc. et al. at 12-23; Brief of Respondent Fox
Television Stations, Inc. et al. at 26-39; Brief of Respondent
ABC Television Affiliates Ass’n et al. at 18-23, 34-42; Brief of
Respondent CBS Television Network Affiliates Ass’n et al. at
28-39; See also CBS Corp. v. FCC, No. 06-3575, 2011 WL
5176139 (3rd Cir. Nov. 2, 2011) (holding, even in light of FCC v.
Fox,
129 S. Ct. 1800 (2009), that the FCC acted arbitrarily
when it failed to provide a reasoned explanation for its change
in policy on fleeting images of nudity).
4


FCC’s as both vague and overbroad. Although
stopping just short of a holding on vagueness, the
Court vividly outlined the evils of essentially
standardless indecency enforcement. The FCC’s
attempts at clarification of its indecency policy have
not cured the deficits pointed out in Reno, and have
only led to more confusion and contradictory
decisions.
New technologies have also created less
burdensome alternatives to government censorship
for parents who wish to shield their children from
vulgar language or images on the airwaves. Hence,
whether or not First Amendment strict scrutiny
applies to the FCC’s indecency regime, it is, today, an
overly restrictive remedy for speech that some
viewers and listeners find offensive.

ARGUMENT

I.

THE FCC’S REGULATION OF INDECENT
SPEECH UNDER 18 U.S.C. § 1464
HAS

BEEN

INCONSISTENT

AND

UNPREDICTABLE
A. FCC Enforcement Of The Indecency

Ban Since Pacifica

Has Been
Inconsistent,

Unpredictable,

and

Highly Subjective



In 1978, a bare majority of this Court
approved the FCC’s censorship of “indecent” speech
on the airwaves, in the context of the “verbal shock
treatment” of one satiric monologue. Pacifica, 438
U.S. at 756-57 (Powell, J., concurring). The Court
justified its lenient standard of First Amendment
scrutiny by noting the history of broadcast regulation
(based on spectrum scarcity) and its description of
5


broadcasting as “uniquely pervasive” and “uniquely
accessible to children.” Id. at 748-49.

At the same time, the Pacifica Court
emphasized the “narrowness” of its holding. Id. at
750-51; see also Sable Commc’n of Cal., Inc. v. FCC,
492 U.S. 115, 126-27 (1989); Bolger v. Youngs Drug
Prod. Corp
., 463 U.S. 60, 74 (1983). As Justice
Breyer explained when this case was previously
before the Court, “two Members of the [Pacifica]
majority suggested that they could reach a different
result, finding an FCC prohibition unconstitutional,
were that prohibition aimed at the fleeting or single
use of an expletive.” FCC, 129 S.Ct. at 1833 (Breyer,
J., dissenting).

Rather than test that proposition, the FCC
followed a relatively restrained enforcement policy
for the nine years following Pacifica. Then, in 1987,
it expanded its indecency regime to embrace any
sexual innuendo or other content that the
commissioners considered offensive, regardless of
whether there was “verbal shock treatment.” Two of
the three programs condemned under this new
“generic” indecency standard had aired on
noncommercial radio stations; one concerned
homosexuality and AIDS. New Indecency
Enforcement Standards
, 2 FCC Rcd 2726 (1987);
Pacifica Found., Inc., 2 FCC Rcd 2698 (1987);
Regents of the Univ. of Cal., 2 FCC Rcd 2703, on
reconsideration
, 3 FCC Rcd 930 (1987).3

3 The new generic standard was a response to pressure from
Morality in Media and other groups to reverse the Reagan
Administration’s “laissez faire” approach to indecency. See
John Crigler & William Byrnes, Decency Redux: The Curious
6



The agency’s indecency enforcement between
1987 and 2003 was sporadic and unpredictable. In
2001, it ruled that the African-American poet and
theater artist Sarah Jones’s “Your Revolution,”
broadcast on a noncommercial community station,
was indecent. “Your Revolution” is a poetic protest
against misogyny in hip-hop music. After Jones
sued, and just before the FCC’s brief was due in the
court of appeals, the agency reversed itself and
decided that the poem was not indecent after all,
mooting Jones’s challenge to the indecency standard.
KBOO Found., 18 FCC Rcd 2472 (2003).

Up to this point, the FCC did not consider
“fleeting expletives” indecent. Indeed, when the
musician Bono exclaimed “this is really fucking
brilliant” at the 2003 televised Golden Globe Awards
ceremony, the FCC initially ruled that it was not
indecent because it did not refer to sexual or
excretory functions. Complaints Against Various
Broad. Licensees Regarding Their Airing of the
“Golden Globe Awards” Program,
18 FCC Rcd 19859
(2003). However, a month after Janet Jackson’s
“wardrobe malfunction” at the 2004 Super Bowl half-
time show, and quite plainly in response to the
ensuing political uproar, the agency reversed gears.
It announced that all uses of the word “fuck,” even
fleeting exclamations, necessarily refer to sex and
therefore are presumptively indecent. Complaints
Against Various Broad. Licensees Regarding Their Airing
of the “Golden Globe Awards” Program,
19 FCC Rcd
4975, 4978-79 (2004) (“Golden Globe Awards”). The

History of the New FCC Broadcast Indecency Policy, 38 CATH. U.
L. REV. 329 (1989).
7


commissioners asserted that even though Bono used
“fucking” as “an intensifier,” not a sexual reference,
any use of the word, or a variation, “invariably
invokes a coarse sexual image.” Id. at 4979.
Previous agency rulings to the contrary were “no
longer good law.” Id. at 4980.

In an even more dramatic departure from
prior practice, the FCC also ruled that Bono’s
exclamation was profane. Until Golden Globe, the
agency had understood “profanity” to have a religious
dimension. See Fox I, 489 F.3d at 466-67. In Golden
Globe
, however, it rejected all of its previous
statements on the subject, and created a vague new
profanity definition that essentially overlapped with
the new fleeting expletives rule – “language so
grossly offensive to members of the public who
actually hear it as to amount to a nuisance.” Golden
Globe Awards,
19 FCC Rcd at 4981.

It was not long after the FCC created these
new rules that it announced an exception for the film
“Saving Private Ryan,” broadcast by many ABC
stations on Veterans Day in 2004. Complaints had
cited dialogue including “‘fuck,’ and variations
thereof; ‘shit,’ ‘bullshit,’ and variations thereof,
‘bastard,’ and ‘hell,’” as well as “Jesus” and “God
damn.” Complaints Against Various Television
Licensees Regarding Their Broad. on November 11,
2004, of the ABC Television Network’s Presentation of
the Film “Saving Private Ryan,”
20 FCC Rcd 4507,
4509 (2005). The Commission found that the
material, “in context, is not patently offensive, and
therefore, not indecent,” or profane. Id. at 4510. The
FCC explained that the rough language was “integral
to the film’s objective of conveying the horrors of war
8


through the eyes of these soldiers,” and that deleting
or bleeping “would have altered the nature of the
artistic work and diminished the power, realism and
immediacy of the film experience.” Id. at 4512-13.

This sensitivity to “the nature of the artistic
work” did not extend, a year later, to the FCC’s
March 2006 order, which condemned a PBS
documentary “The Blues,” directed by Martin
Scorsese, because of expletives. Complaints
Regarding Various Television Broad. Between
February 2, 2002 and March 8, 2005,
21 FCC Rcd
2664 (2006) (“Omnibus Order”). The commissioners
refused to apply the “Saving Private Ryan” exception
to “The Blues” because, they said, “we do not believe”
that the station that aired the show “has
demonstrated that it was essential to the nature of
an artistic or educational work … or that the
substitution of other language would have materially
altered the nature of the work.” Id. at 2685-86.4

The Omnibus Order addressed dozens of other
programs containing coarse language or sexual
situations. Its evaluation of “NYPD Blue,” however,
provided a striking example of unbridled subjectivity.
The commissioners declared that “bullshit” (uttered
by the one character) was profane and indecent, but
“dick” and “dickhead” were not. Id. at 2696-98.
Likewise, non-explicit suggestions of teenage sexual
activity were deemed indecent in the CBS program

4 Commissioner Adelstein dissented because the “coarse
language is a part of the culture of the individuals being
portrayed,” and “if prohibited, would undercut the ability of the
filmmaker to convey the reality of the subject of the
documentary.” 21 FCC Rcd at 2728.
9


“Without a Trace,” while explicit discussions of
teenage sex on “Oprah” were not.5 Id. at 2705-07.

The FCC’s most recent intellectual acrobatics
came after this case was remanded for
reconsideration of the four indecency and profanity
rulings that were before the court of appeals. The
agency dismissed the case against “NYPD Blue” on a
technical ground (the complainant did not reside in
the time zone where the broadcast occurred). And it
reversed itself on an utterance of “bullshitter” in
“The Early Show” because, it now said, the show was
a news interview, a context in which government
should defer to producers’ editorial judgment. Since
the commissioners warned that “there is no outright
news exemption from our indecency rules,” this
deference promised to be just as vague and
unpredictable as the rest of the FCC’s censorship
regime. Fox I, 489 F.3d at 458 (quoting Complaints
Regarding Various Television Broad. Between
February 2, 2002 and March 8, 2005,
21 FCC Rcd
13229 ,13327 (2006) (“Remand Order”)).

The unavoidable conclusion from even this
brief review of indecency enforcement since Pacifica
– and in particular since announcement of the
fleeting expletives rule – is that the FCC’s conduct
has been woefully inconsistent and characterized by
unpredictable detours and unprincipled reversals.

5 “Without a Trace” was the subject of a separate FCC ruling
issued on the same date as the Omnibus Order. Complaints
Against Various Television Licensees Concerning Their
December 31, 2004 Broad. of the Program “Without a Trace,”
21
FCC Rcd 2732 (2006).
10


B. FCC Enforcement, Both Before And

After Its New Fleeting Expletives
Rule,

Has

Chilled

Valuable

Expression


This Court has repeatedly warned that the
overbreadth doctrine “prohibits the Government from
banning unprotected speech if a substantial amount
of protected speech is prohibited or chilled in the
process.” Ashcroft v. Free Speech Coalition, 535 U.S.
234, 237 (2002). This is precisely what has happened
as a result of the FCC’s vague and shifting indecency
regime.

In response to the fleeting expletives rule, PBS
bleeped soldiers’ language, and with it the reality of
war reporting, from the documentaries “A Soldier’s
Heart” and “Return of the Taliban,” and from a
Frontline episode, “The New Asylums.”6 Language
in PBS’s “The Enemy Within” was purged even
though it documented the specific words used by an
informant to threaten a suspect.7 PBS also decided
to delay airing a World War II documentary by Ken
Burns until after 10 p.m. due to concerns over two

6 Kara Canty, FCC’s Punishing Fines Have Chilling Effect on
Broadcasters
, BALT. SUN, Oct. 13, 2006, available at
http://www.kintera.org/site/apps/nlnet/content2.aspx?c=hrLQK
WPGLuF&b=1368219&ct=3039413; Rebecca Dana, @$#&*%
Ken Burns! PBS Scrubbing G.I. Mouths With Soap,
N.Y.
OBSERVER,
Oct.
2,
2006,
available
at
www.observer.com/node/52747; Louis Wiley, Jr., Censorship at
Work
,
CURRENT.ORG,
July
17,
2006,
available
at
www.current.org/fcc/fcc0613indecency.shtml.
7 Dana, supra n.6.
11


possibly indecent words.8 The producers of
“Masterpiece Theater” chose not to make available to
PBS member stations the original version of the
critically-acclaimed British series “Prime Suspect”
because of concern over language, instead offering
the public television stations a lightly or heavily
edited version.9 PBS similarly wondered whether to
pixilate actress Helen Mirren’s mouth as she uttered
an inaudible “fuck” in another “Masterpiece Theater”
production.10

In 2002, a documentary produced by American
Public Media (“APM”), which chronicled “the sounds
and voices of the World Trade Center and its
surrounding neighborhood,” was broadcast uncut on
dozens of public radio stations. The program
included a poem incorporating the word “bullshit.”
When the show was rebroadcast in September 2006,
APM “felt that it had no choice but to alert its
affiliates and to ‘bleep’ this word” from the poem.
Comments of Minnesota Public Radio/American
Public Media, FCC Remand Proceedings, DA 06-1739
(Sept. 21, 2006), Affidavit of Thomas Kigin, ¶10 (A-
214-216).

CBS affiliates were extremely hesitant to air
yet another World Trade Center documentary, “9/11,”

8 Elizabeth Jenson, Soldier’s Words May Test PBS Language
Rules
,
N.Y.
TIMES,
July
22,
2006,
available
at
http://www.nytimes.com/2006/07/22/arts/television/22pbs.html.
9 Jacques Steinberg, Eye on F.C.C., TV and Radio Watch Words,
N.Y.
TIMES,
May
10,
2004,
available
at
http://www.nytimes.com/2004/05/10/us/eye-on-fcc-tv-and-radio-
watch-words.html?pagewanted=all&src=pm.
10 Dana, supra n.6.
12


featuring real audio footage of firefighters on
September 11th.11 Although it contains occasional
expletives, the award winning documentary had
aired twice without complaint. Still, in 2006, at least
two dozen CBS affiliates chose not to air the
documentary or delay airing it until after 10 p.m.

Niagara Frontier Radio administers a radio
reading service for the blind; by 2006, it had aired
more than 150,000 hours of book readings to
thousands of visually impaired listeners. It
broadcast through a leased subcarrier of a local FM
signal as well as a local ABC affiliate with a wider
range. In 2005, the ABC station removed the
program, citing a single complaint about the Tom
Wolfe novel I Am Charlotte Simmons. When the
program was reinstated two weeks later, the station
would air it only after 10 p.m., thereby reducing both
the hours that visually impaired listeners can enjoy
the show and the size of the listening audience.
Comments of Minnesota Public Radio/American
Public Media, FCC Remand Proceedings, DA 06-1739
(Sept. 21, 2006), Affidavit of Robert Sikorski (A-265-
271).

The widely syndicated program “Broadway’s
Biggest Hits,” with more than 150,000 listeners,
faced many dilemmas in the wake of the new
indecency and profanity rules. In 2004, stations

11 Worries Over Profanity in CBS’ 9/11 Show, Assoc. Press,
Sept.
3,
2006,
available
at
http://today.msnbc.msn.com/id/14657719/ns/today-
entertainment/t/worries-over-profanity-cbs-show/.

13


fearful of FCC punishment were given a sanitized
version of a song in the hit musical “A Chorus Line,”
which “humorously tells of how plastic surgery and
improving one’s ‘tits and ass’ can improve one’s
chances for a job.” In the next two years, these
concerns resulted in full review of the playlist and
deletion of “well-known, popular and culturally and
musically significant songs” from such shows as “Les
Miserables,” “The Producers,” “Avenue Q,” and “Miss
Saigon.” Id., Affidavit of Stanley Wilkinson (A-239-
247).

PBS was wary of airing “Eyes on the Prize,”
another award winning documentary, because of
language.12 The documentary, about the Civil Rights
Movement, contains a scene where one of the
members of the Student Non-Violent Coordinating
Committee states, “If we can't sit at the table, let's
knock the fucking legs off.” He quickly adds, “Excuse
me.” PBS aired the documentary but offered edited
versions to its member stations.

It will not avail the FCC to argue that in some
or all of these instances, it might find that the vulgar
words, “in context,” were not indecent. Programmers
– especially at noncommercial stations with limited
budgets – cannot afford to risk an indecency fine,13 or
even to pay the legal costs incurred in responding to
FCC investigations. Because the permissible

12 Gail Shister, Shadow of Censorship Over ‘Prize’, PHILA.
INQUIRER, Sept. 20, 2006, at C01.
13 In 2006, Congress increased the fines for broadcast indecency
tenfold, to $325,000 for each violation. Broadcast Decency
Enforcement Act of 2005, Pub. L. No. 109-235, 120 Stat. 491
(2006).
14


parameters are unclear and continue to shift, self-
censorship of fiction, drama, history, and journalism
occurs with increasing frequency. As the court of
appeals noted below, “[t]here is little rhyme or reason
to these decisions and broadcasters are left to guess
whether an expletive will be deemed ‘integral’ to a
program or whether the FCC will consider a
particular broadcast a ‘bona fide news interview.’”
Fox II, 613 F.3d at 332.

PBS President Paula Kerger explained: “When
you have stations whose operating budgets are only a
couple of million dollars, even the old fines, once you
factor in all the legal work, were daunting. The fines
now would put stations out of business.”14
Undoubtedly, there will be “countless other
situations where broadcasters will exercise their
editorial judgment and decline to pursue contentious
people or subjects, or will eschew live programming
altogether, in order to avoid the FCC’s fines. This
chill reaches speech at the heart of the First
Amendment.” Id. at 335. The FCC’s presumptive
ban on fleeting expletives, with exceptions to be
invoked at the agency’s discretion, has created a
severe
chill,
especially
in
noncommercial
broadcasting.


14 Quoted in Mark Dawidziak, PBS: Language in Burns’ ‘War’
Worth Fighting For
, SUN JOURNAL, July 31, 2006, available at
http://www.sunjournal.com/node/175642. See also Kigin
Affidavit, ¶5 (A-209) (“MPR simply cannot risk either huge fines
or license revocation … if it were to guess wrong about what is
now acceptable for broadcast.”).
15


II.

SECTION 1464 SHOULD BE DECLARED
UNCONSTITUTIONAL INSOFAR AS IT
AUTHORIZES THE FCC TO PROHIBIT
INDECENT SPEECH


Justice Breyer has noted that sometimes it is
wise to watch how a medium develops before
imposing strict legal rules. Denver Area Educ.
Telecomm. Consortium, Inc. v. FCC
, 518 U.S. 727,
740–42 (1996). We now have more than thirty years’
experience with FCC censorship of broadcasting, long
enough to conclude that its indecency regime cannot
be reconciled with the First Amendment.15

A. Case Law Since Pacifica

Has

Recognized The Vagueness And
Overbreadth Of The FCC’s Indecency
Test


Congress chose the FCC’s indecency standard
to regulate the Internet when it passed the 1996
Communications
Decency
Act
(the
“CDA”).
Invalidating the CDA in Reno v. ACLU, this Court
condemned the indecency test as both vague and
overbroad. 521 U.S. 844 (1997).

This Court found the test “problematic”
because such terms as “patently offensive” and
“community standards” are left undefined. 16 The

15 Alternatively, this Court could preserve the constitutionality
of § 1464 by construing it to ban only constitutionally
unprotected obscenity from the airwaves. See Manual Enter.,
Inc. v. Day,
370 U.S. 478, 482-84 (1962) (construing statute
banning “obscene, lewd, lascivious, indecent, filthy or vile”
articles to cover only obscenity).
16 The court of appeals, distinguishing the FCC’s definition from
the CDA, noted that the FCC has further elaborated on its
16


lack of definition creates “special First Amendment
concerns because of its obvious chilling effect on free
speech.” Id. at 870-72. This Court explained the
difference between “patently offensive” in the CDA,
where it was troublesomely vague, and in obscenity
law, where it is only one part of the definition of
unprotected speech. The other, more specific
requirements of the obscenity definition – that the
expression appeal to “the prurient interest,” lack
serious value, and be “specifically defined by the
applicable state law” – cabin the inherent vagueness
of “patent offensiveness.” Id. at 872-74. Without
these additional safeguards, the CDA’s ban on
“patently offensive” speech “unquestionably silences
some speakers whose messages would be entitled to
constitutional protection.” Id. at 874. Although the
Court’s discussion of vagueness fell just short of a
square holding, this Court has recently cited Reno for
the proposition that the indecency standard is
unconstitutionally vague because it requires “wholly
subjective judgments without statutory definitions,

definition of indecency in Industry Guidance on the
Commission’s Case Law Interpreting 18 U.S.C. § 1464 and
Enforcement Policies Regarding Broadcast Indecency,
16 FCC
Rcd 7999 (2001), and in its fleeting expletives rule. However, as
the foregoing examples demonstrate, the FCC, under these
“guidelines” has been woefully inconsistent and routinely
contradicted itself. Likewise, the FCC’s declaration of “fuck”
and “shit” as presumptively indecent equally does not solve the
vagueness issues raised in Reno as exceptions are continually
invoked at the agency’s discretion. The court of appeals
conceded that although the FCC has provided slightly more
explanation of its definition of indecency than the definition in
the CDA, “[t]his additional guidance [was not] sufficient to
survive a vagueness challenge.” Fox II, 613 F.3d at 329.
17


narrowing context, or settled legal meanings.”
United States v. Williams, 553 U.S. 285, 306 (2008)
(citing Reno, 521 U.S. at 870-71 & n.35); See also
Ashcroft v. ACLU, 535 U.S. 564, 578 (2002)
(describing the indecency standard’s “unprecedented
breadth and vagueness”).

Reno struck down the indecency standard on
grounds of overbreadth. This Court reiterated that
“[s]exual expression which is indecent but not
obscene is protected by the First Amendment,” 521
U.S. at 874 (quoting Sable Commc’n, 492 U.S. at
126), and noted that indecency “cover[s] large
amounts of nonpornographic material with serious
educational or other value.” Id. at 877-78. “Where
obscenity is not involved, . . . the fact that protected
speech may be offensive to some does not justify its
suppression.” Id. at 874-75 (quoting Carey v.
Population Servs. Int’l
, 431 U.S. 678, 701 (1977)).
Following the time-honored rule that government
cannot reduce the adult population to reading or
viewing “only what is fit for children,” Butler v.
Michigan
, 352 U.S. 380, 383-84 (1957), this Court
noted that there are less constitutionally burdensome
ways to shield youngsters from material that may
not be appropriate for them. 521 U.S. at 874-79.

Although Reno distinguished Pacifica, this
Court’s condemnation of the indecency standard on
grounds of both vagueness and overbreadth cannot
be reconciled with the FCC’s broad-ranging,
inconsistent,
and
whimsically
discretionary
application of that standard to broadcasters over the
18


past thirty years.17 The Commission’s use of the
same indecency test that this Court condemned in
Reno, Ashcroft, and Williams cannot be squared with
a constitutional reading of section 1464.

B. Broadcasting Is No Longer “Uniquely

Pervasive” And “Uniquely Accessible
To Children” – The Characteristics
That In Pacifica

Were Said To
Justify

FCC

Censorship

Of

Constitutionally

Protected

Expression

At the time Pacifica was decided, broadcasting
was the only electronic mass medium. It has since
become one among many, and indistinguishable to
most viewers from cable television. “Indeed, we face
a media landscape that would have been almost
unrecognizable in 1978.” Fox II, 613 F.3d at 326.
Thus, the “uniquely pervasive” presence of
broadcasting that this Court identified in Pacifica as
the principal rationale for subjecting the medium to
FCC censorship of non-obscene speech no longer
exists. As the court of appeals recognized, “it is

17 As discussed in Respondents’ Briefs, Holder v. Humanitarian
Law Project,
130 S.Ct. 2705 (2010), (“HLP”) does not draw the
court of appeals’ vagueness rulings into question. HLP
established that an as-applied vagueness challenge must be
evaluated on the basis of plaintiff’s own speech rather than
hypothetical speech of others. Here, the court of appeals
analyzed the FCC’s application of the new indecency policy to
actual broadcasts not the imagined speech of others. See e.g.,
Brief of Respondent Fox Television Stations, Inc. et al. at 51-53;
Brief of Respondent ABC Television Affiliates Ass’n et al. at 48-
50; Brief of Respondent CBS Television Network Affiliates Ass’n
et al. at 26-27.
19


increasingly difficult to describe the broadcast media
as uniquely pervasive and uniquely accessible to
children.” Fox I, 489 F.3d at 465. Justice Thomas
noted, concurring with the previous decision in this
case, that “the justifications relied on by the Court in
Pacifica—‘spectrum scarcity, intrusiveness, and
accessibility
to
children—neither
distinguish
broadcast from cable, nor explain the relaxed
application of the principles of the First Amendment
to
broadcast’…technological
advances
have
eviscerated the factual assumptions” underlying
Pacifica. FCC, 129 S.Ct. at 1821 (Thomas, J.,
concurring) (internal citations omitted).
To be sure, broadcasting remains pervasive,
but no longer uniquely so, given that about 90% of
the nation’s households receive all their TV
programming through one, nonbroadcast, distributor
(typically either cable or satellite).18 Still more
people are watching TV shows online through
Internet TV services like Hulu or network websites,
circumventing broadcast television altogether.19

18
Satellite
TV
Penetration
Up
Significantly,
CONSUMERAFFAIRS.COM, Aug. 18, 2005,
available at
www.consumeraffairs.com/news04/2005/jdpower_satellite.html;
see also Annual Assessment of the Status of Competition in the
Market for the Delivery of Video Programming
, 21 FCC Rcd
2503, 2506-07 (2006) (94.2 million out of a total of 109.6 million
TV households receive all their video programming through an
“MVPD” [multichannel video programming distributor] – either
cable, satellite, or other nonbroadcast technology).
19
Zach Pontz, More turning to Web to watch TV, movies,
CNNTECH,
Feb.
6,
2009,
available
at
http://articles.cnn.com/2009-02-06/tech/internet.tv_1_hulu-
internet-tv-joost?_s=PM:TECH; Saul Hansell, More People Turn
to the Web to Watch TV
, N.Y. TIMES, Aug. 1, 2005, available at
20


Indeed in response to this growing trend, at least one
network that censored a show for regular broadcast
because of fear of FCC fines, released the original
uncut version online.20 In the 30 years since
Pacifica, there has been “an explosion of media
sources” and rather than being a uniquely pervasive
medium, “broadcast television has become only one
voice in the chorus.” Fox II, 613 F.3d at 326. This
convergence of technology eliminates the justification
for a government censorship system that is
constitutionally off-limits for every other medium.
E.g., Reno, 521 U.S. 844 (the Internet); Denver Area
Educ. Telecomm. Consortium, Inc.
, 518 U.S. 727
(public and leased access cable).

Underlying Pacifica was a history of lesser
First Amendment protection for broadcasting.
Government regulation was deemed justified in light
of the limited capacity of the broadcast spectrum,
and consequent scarcity of licenses. Whatever one
thinks of the scarcity rationale in the modern media
world, there is a categorical difference between
structural rules designed to promote more speech, see
Nat’l Broad. Co. v. United States, 319 U.S. 190 (1943)
(approving FCC rules that curbed national networks’
market power by prohibiting them from dictating the
programming of affiliated stations), and censorship
rules based on broad, shifting, and culturally driven
criteria such as “patent offensiveness.”

http://www.nytimes.com/2005/08/01/technology/01video.html?pa
gewanted=all.
20 Bill Carter, WB Censors Its Own Drama for Fear of FCC
Fines
,
N.Y.
TIMES,
Mar.
23,
2006,
available
at
http://www.nytimes.com/2006/03/23/arts/23bedf.html.
21



Moreover, as the court of appeals noted,
technological developments since Pacifica make
government control unnecessary in those instances
in which parents wish to shield their children from
programming they consider inappropriate. Fox I,
489 F.3d at 466; See also Brown v. Entm’t Merch.
Ass’n,
131 S. Ct. 2729, 2741-42 (2011) (noting that
the real goal of the statute at issue was to support
“what the state thinks parents ought to want” and
observing that parental views vary widely). The FCC
itself has recognized that v-chips and lockboxes are
readily available blocking technologies. Saving
Private Ryan
, 20 FCC Rcd at 4508, nn.8-9. Every
television 13 inches or larger sold in the United
States after January 2000 contains a v-chip. Fox II,
613 F.3d at 326; 47 U.S.C. § 303(x). Further, when
the country made the transition to digital television
in 2009 anyone with a digital converter box also has
access to a v-chip. Id. Indeed, this Court has held
that lockboxes and other technologies were
constitutionally
less
burdensome
means
of
addressing parental concerns in striking down a
time-channeling requirement for indecency on cable.
United States v. Playboy Entm’t Grp., 529 U.S. 803,
809-15 (2000).

C. The FCC’s Unbridled Discretion In

Deciding Whether A Program Is
“Patently Offensive,” And Its Second-
Guessing Of The Artistic Judgments
Of Filmmakers And Programmers,
Are Classic

Hallmarks

Of

An

Unconstitutional Censorship System

The FCC’s record of enforcement demonstrates
the evils of a vague, overly discretionary censorship
22


regime. As the court of appeals previously noted, the
agency’s subjective judgments embody the same
arbitrariness and unpredictability that led to
invalidation of licensing schemes in Forsyth Cnty. v.
Nationalist Movement,
505 U.S. 123 (1992) and City
of Lakewood v. Plain Dealer Publ’g Co.
, 486 U.S. 750
(1988). See Fox I, 489 F.3d at 464. Indeed, the
indecency regime outdoes the licensing processes in
those cases in the sheer breadth of the agency’s claim
of discretion to decide what, in the personal
judgment of the commissioners, is patently offensive
and what has sufficient artistic necessity, news
value, or other merit to escape punishment.

With its contrasting decisions on “Saving
Private Ryan,” “The Blues,” “The Early Show,” and
many other programs that were at issue in the
Omnibus Order, the FCC has appointed itself the
arbiter of both news value and artistic necessity.
Under our constitutional system, it is not the role of
government officials to second-guess artistic or
editorial judgments. See Ark. Educ. Television
Comm’n v. Forbes
, 523 U.S. 666, 674 (1998)
(broadcasters’ decisions “should be left to the exercise
of journalistic discretion”); Miami Herald Publ’g Co.
v. Tornillo,
418 U.S. 241, 256-258 (1974) (protecting
newspaper’s exercise of editorial judgment).21 It is

21 The sole exception is obscenity law, where “serious value” is
part of the three-part test for determining whether a work is
constitutionally protected in the first place. Miller v.
California
, 413 U.S. 15, 24 (1973). Once expression is
constitutionally protected, government officials cannot ban or
burden content they dislike based on their assessments of
artistic value or necessity. Winters v. New York, 333 U.S. 507,
510 (1948). Of course, government makes judgments about
23


the writer, artist or filmmaker who decides what is
artistically
necessary
in
a
creative
work.
Considering the diverse attempts to define art – from
Tolstoy’s essay What is Art? to the Dada movement’s
“Anything is art if an artist says it is”22 – the
inherent subjectivity of the task alone makes it
inappropriate for a government agency.

The FCC’s disparate treatment of “The Blues”
– an educational documentary film incorporating live
footage of historically significant individuals who
have influenced America’s musical culture – and
“Saving Private Ryan”a brutally violent
entertainment film concerning the experiences of
fictional characters – is a striking illustration of the
unbridled discretion that the agency claims.
Although the Commission found variants on “fuck”
and “shit” to be indecent in “The Blues,” it absolved
the far more frequent use of those words in “Saving
Private Ryan” because it thought editing them
“would have altered the nature of the artistic work
and diminished the power, realism and immediacy of
the film experience.” It is unclear how the
Commission arrived at these contrary conclusions.
One possible explanation is that the cultural milieu
of the mainstream movie “Saving Private Ryan” was
more familiar to the commissioners than the largely
African-American background of “The Blues.” A
similar dynamic can be seen in the Commission’s

artistic value in awarding prizes, e.g., Nat’l Endowment for the
Arts v. Finley
, 524 U.S. 569 (1998) – a context not relevant here.
22 Leo Tolstoy, WHAT IS ART? (1897); MUSEUM OF MODERN ART,
THREE GENERATIONS OF TWENTIETH-CENTURY ART (1972) 48
(quoting Marcel Duchamp).
24


earlier finding of indecency against Sarah Jones’s
“Your Revolution” – a poem that presumably speaks
most directly to the experience of African-American
women. Even without intending any racial or ethnic
bias, decision makers in a subjective and
discretionary censorship system may be more likely
to find “patently offensive” those cultural expressions
with which they are less familiar.
From its censorship in 1987 of a program
dealing with homosexuality and AIDS to its tone-
deafness to the educational and artistic value of
authentic colloquial language in “The Blues,” the
Commission’s thirty years of indecency enforcement
have borne out Justice Brennan’s warning that
allowing a government agency to ban what it
considers “patently offensive” invites “an acute
ethnocentric myopia” that has no place in our “land
of cultural pluralism,” where “there are many who
think, act, and talk differently” from the
commissioners of the FCC. Pacifica, 438 U.S. at 775
(Brennan, J., dissenting).
The FCC’s efforts to distinguish among
various words in its Omnibus and Remand Orders
provide further examples of unbridled discretion.
Whether “dickhead” or “pissed off” are more or less
offensive than “bullshit” is simply a matter of taste,
and the commissioners’ efforts to rationalize their
taste merely emphasize the arbitrary nature of the
enterprise. The Remand Order’s reversal on the use
of “bullshitter” in “The Early Show,” similarly,
confuses rather than clarifies the agency’s shifting
standards. By changing its mind about its original
indecency and profanity ruling but simultaneously
warning that “there is no outright news exemption
25


from our indecency rules,” the FCC leaves news
broadcasters in as much limbo as documentary and
feature producers as to when the FCC might find an
exception to the fleeting expletives rule.

The FCC further assumes the linguistic
expertise to decide that fleeting expletives – in
particular, “fuck,” “shit,” and their many compounds
and variations – always refer to sexual or excretory
activities or organs even when they are merely used
for color or intensity. But as “The Blues” and many
other documentary films demonstrate, these words
have many nonsexual and non-excretory meanings.
The court of appeals previously noted that
“even the top leaders of our government have used
variants of these expletives in a manner that no
reasonable person would believe referenced ‘sexual or
excretory organs or activities.’” Fox I, 489 F.3d at
459-460 (citing President Bush’s remark to British
Prime Minister Blair that the UN should “get Syria
to get Hezbollah to stop doing this shit,” and Vice
President Cheney’s widely-reported “Fuck yourself”
to Senator Patrick Leahy on the Senate floor).
Justice Stevens noted that “[t]here is a critical
distinction between the use of an expletive to
describe a sexual or excretory function and the use of
such a word for an entirely different purpose, such as
to express an emotion. One rests at the core of
indecency; the other stands miles apart.” FCC, 129
S.Ct. at 1827 (Stevens, J., dissenting). The FCC’s
effort to elide this distinction by arguing that there is
always a sexual or excretory “connotation” stretches
its own definition of indecency (reference to sexual or
excretory activities or organs) to the breaking point.
26



Scholarship supports the conclusion that
expletives not only have a multitude of nonsexual or
excretory meanings; they often have serious value.
As Professor Timothy Jay explains, expletives are
used for emphasis and emotive charge; they serve
psychological and social purposes and communicate
powerful messages wholly apart from their more
literal meanings. Timothy Jay, WHY WE CURSE
(2000). As Justice Ginsburg noted in dissenting to
the Court’s previous decision in this case, this Court
has held that “‘words are often chosen as much for
their emotive as their cognitive force. We cannot
sanction the view that the Constitution, while
solicitous of the cognitive content of individual
speech, has little or no regard for that emotive
function which, practically speaking, may often be
the more important element of the overall message
sought to be communicated.’” FCC, 129 S.Ct. at 1829
(Ginsburg, J., dissenting) (quoting Cohen v.
California
, 403 U. S. 15 (1971)).

In 2004, Professor Jay submitted expert
testimony in an FCC case involving a radio
documentary, “Movin’ Out the Bricks,” which
explored the lives of Chicago public housing
residents, including one woman who described drug
use as getting “fucked up and shit like that.” Jay
explained that in many contexts, “fuck” and “shit”
are part of ordinary conversation and have no sexual
or excretory connotation. In this case, they were
essential to the documentary’s authenticity. To clean
up the woman’s language would “undermine the
listeners’ understanding of the impact of public
housing … If we substitute inebriated for fucked up,
we erase the emotional impact.” Timothy Jay,
27


Statement of Expert Opinion, WBEZ-FM, No. EB-04-
IH-0323, (Sept. 21, 2004).


The First Amendment protects these expletives
in literature, art, and political speech in part because
of their emotive power. See also Denver Area Educ.
Telecomm. Consortium, Inc.,
518 U.S. at 805 (opinion
of Kennedy, J.) (“[i]n artistic or political settings,
indecency may have strong communicative content,
protesting conventional norms or giving an edge to a
work
by
conveying
‘otherwise
inexpressible
emotions.’”) (quoting Cohen, 403 U.S. at 26, in part);
Morse v. Frederick, 551 U.S. 393, 422 (2007) (Alito
and Kennedy, JJ., concurring) (the First Amendment
protects any speech “that can plausibly be
interpreted as commenting on any political or social
issue”).

The FCC recites the mantra of “context” in an
attempt to escape the irrationality of its flat
presumption against two common words that it finds
offensive, along with any of their variants. See, e.g.,
Brief of Petitioner at 19-20, 30, 35. But as the
foregoing examples demonstrate, the FCC’s
inscrutable and varying approach to regulating
according to “context” means wielding essentially
unbridled discretion. In claiming to know when an
expletive should be allowed, the agency does not even
purport to rely on data or any other evidence
regarding when a child might be adversely affected,
but instead finds it sufficient to rely on the personal
tastes
and
cultural
assumptions
of
the
commissioners, as the record amply shows.

“Broadcasters are entitled to the same degree
of clarity as other speakers” and the FCC cannot
simply cite “context” to justify each decision to
28


sanction speech. Fox II, 613 F.3d at 329, 333.
Although Pacifica discussed the relevance of context
in regulating broadcast, it did so to emphasize the
limited scope of its holding. 438 U.S. at 750; Fox II,
613 F.3d at 333. “[T]he FCC still must have
discernible standards by which individual contexts
are judged.” 613 F.3d at 333.

How can it be permissible, for example, for a
government agency to decide that a news program
can use the word “bullshitter” but a police officer
cursing during a fictional program such as “NYPD
Blue” cannot? Why should it be possible that
musicians would be barred from using vulgar words
in a documentary, but perhaps allowed to use them
on a news show?

Imposing on broadcasters the burden of
demonstrating artistic or editorial necessity – as the
FCC did in the case of “The Blues” – heightens the
chill, compounding the injury. As this Court
recognized in Freedman v. Maryland, 380 U.S. 51
(1965), the First Amendment has a procedural
dimension, which prohibits laws or regulations that
impose on speakers the burden of proving that their
speech should not be censored. See also Ashcroft v.
ACLU
, 542 U.S. 656, 670-71 (2004) (“[t]here is a
potential for extraordinary harm and a serious chill
upon protected speech” where prosecution is likely
and “only an affirmative defense is available”). The
FCC’s notion that broadcasters should bear the
burden of establishing artistic necessity turns the
First Amendment upside down.

29


D. The Post 10-p.m. Safe Harbor Does

Not Save the FCC’s Censorship
Regime


The post-10 p.m. safe harbor does not save the
indecency regime from constitutional infirmity
because it does not adequately protect the First
Amendment rights of broadcasters, producers,
directors, writers, and performers.

First, audiences are smaller late at night. TV
viewing falls significantly after 10 p.m.; radio
listening begins to shrink after 6 p.m. and drops to
negligible levels by 10 p.m.23 Second, the safe harbor
realistically offers at most only two hours for
programming that might run afoul of the FCC’s
rules, since most people are sleeping and not
watching TV or listening to the radio from midnight
to 6 a.m. It was not without reason that the D.C.
Circuit referred to the safe harbor as “broadcasting
Siberia.” Becker v. FCC, 95 F.3d 75, 84 (D.C. Cir.
1996).

Consigning possibly indecent programs to the
post-10 p.m. safe harbor is rarely an adequate
substitute for earlier time slots. Southern California

23 The Nielsen website lists the ten most-watched broadcast TV
shows every week. For the week of October 17, 2011, none of
the ten most-watched shows aired at or after 10 p.m. See
Nielsen Media Research, Top Tens and Trends, Television,
http://www.nielsen.com/us/en/insights/top10s.html
(last
accessed 10/31/2011). For radio, listening peaks around 7 a.m.,
“remains[s] strong” through 6 p.m., and tapers off after that,
with just a tiny fraction of the daytime audience by 10 p.m.
ARBITRON, RADIO TODAY 89 (2010 ed.), available at
http://www.arbitron.com/downloads/RadioToday_2010.pdf.
30


Public Radio (“SCPR”), for example, for years
broadcast performances at LA Theater Works,
typically on Saturday nights at 8 pm – “consistent
with when the curtain typically rises on the live
performances.” Kigin Affidavit ¶8 (A-212-213). In
2004, SCPR aired Theater Works’ production of
“Dinah Was,” a Tony Award-winning play about
singer Dinah Washington. “Not surprisingly,” APM
official Thomas Kigin says, “given Ms. Washington’s
life and times, the play contains various
commonplace ‘swear’ words and sexual expressions.”
Heightened FCC censorship and the threat of large
fines, however, made SCPR nervous. First, it
stopped the broadcasts entirely; then, having
concluded “that it is neither appropriate nor feasible
to edit the performances for language,” SCPR moved
the broadcasts to 10 p.m. even though “broadcasts at
this late hour will attract only a fraction of the
former audience for this series of outstanding
theatrical events.” Id.

The “safe harbor” is even less of an adequate
alternative for live programming. A letter
submission in the FCC’s remand proceeding
explained: “Live broadcast television is a direct link
to the real world around us, and while sometimes
unpredictable, is nonetheless one of the things that
continues to bring Americans together to share
historic moments.” Center for Creative Voices in
Media et al., Letter to William Davenport, No. DA
06-1739 (Sept. 21, 2006).

A safe harbor might have made sense under
the facts of Pacifica, where one “specific broadcast …
represented a rather dramatic departure from
traditional program content.” Reno, 521 U.S. at 867.
31


But given the FCC’s expanded and highly subjective
censorship rules, and the pervasiveness of frank
language in today’s art, literature, news, and
documentary programming, there is simply not
enough time after 10 p.m. and before midnight to
accommodate all of the constitutionally protected
material that is endangered. This problem is
exacerbated by the unpredictability and overbreadth
of the FCC’s indecency regime. Broadcasters,
especially small or noncommercial broadcasters that
cannot afford hundreds of thousands of dollars for a
single indecency violation, must purge any
expressive acts that might conceivably be offensive to
a majority of FCC commissioners from their shows in
order to air them before 10 p.m.24

As
this
Court
recognized
in
Reno,
programming that the FCC might consider indecent
would have value for many minors. 521 U.S. at 877-
78. Books by John Steinbeck and Toni Morrison,
documentaries such as “The Blues,” and news
coverage that, the agency has warned in its Remand
Order
, might be found indecent are examples of
valuable material that should not be consigned to the
few available late-night hours.

In Playboy, this Court struck down a safe
harbor requirement for sexually explicit material – a
narrower category of speech than the potentially

24 Although time-shifting technologies such as TiVo make it
possible to record late night programming for viewing at more
convenient times, this technological advance has not led
broadcasters to begin to air popular but potentially risky
programs late at night; instead, they have self-censored in
response to the fleeting expletives rule.
32


indecent speech at issue in this case. 529 U.S. at
812. Playboy involved cable TV, which enters the
home exactly as broadcast television does for most
Americans today. Indeed, the programming at issue
in Playboy came into the home uninvited, largely in
the form of “signal bleed.” This Court nonetheless
found
that
time
channeling
“silences

protected speech for two-thirds of the day.” Id. “It is
of no moment,” this Court explained, “that the
statute does not impose a complete prohibition. The
distinction between laws burdening and laws
banning speech is but a matter of degree.” Id.

CONCLUSION


For the reasons stated herein, the judgment
below should be affirmed.


Respectfully submitted,


Steven R. Shapiro

Counsel of Record

Christopher A. Hansen

American Civil Liberties

Union Foundation

125 Broad Street

New York, N.Y. 10004

(212) 549-2500

sshapiro@aclu.org



Dated: November 10, 2011

* Counsel wishes to thank Marjorie Heins and
Kathryn A. Wood for their substantial contributions
to the brief.
33
















ADDENDUM



STATEMENTS OF INTEREST

The American Civil Liberties Union

(ACLU) is a
nationwide, nonprofit, nonpartisan organization that
has defended free speech principles since its founding
in 1920. Of particular relevance here, the ACLU has
participated in many of the leading cases challenging
the government’s efforts to restrict speech on the
basis of “indecency,” including FCC v. Pacifica and
Reno v. ACLU.

The New York Civil Liberties Union

(NYCLU) is
a statewide affiliate of the national ACLU.

The American Booksellers Foundation for Free
Expression

(ABFFE) is the bookseller’s voice in the
fight against censorship. Founded by the American
Booksellers Association in 1990, ABFFE’s mission is
to promote and protect the free exchange of ideas,
particularly those contained in books, by opposing
restrictions on the freedom of speech.

The American Federation of Television and
Radio Artists, AFL-CIO

, (AFTRA) are the people
who entertain and inform America. In 32 Locals
across the country, AFTRA members work as actors,
journalists, singers, dancers, announcers, hosts,
comedians, disc jockeys, and other performers across
the media industries including television, radio,
cable, sound recordings, music videos, commercials,
audiobooks, non-broadcast industrials, interactive
games, the Internet, and other digital media. The
70,000 professional performers, broadcasters, and
recording artists of AFTRA are working together to
protect and improve their jobs, lives, and
communities in the 21st century. From new art forms
1a


to new technology, AFTRA members embrace change
in their work and craft to enhance American culture
and society.

Directors Guild of America

(DGA) was founded in
1936 to protect the economic and creative rights of
directors. Over the years its membership has
expanded to include the directorial team - Unit
Production Managers, Assistant Directors, Associate
Directors,
Stage
Managers
and
Production
Associates. Today, through the collective voice of
more than 14,500 members, the Guild seeks to
protect the rights of directorial teams, to contend for
their creative freedom and strengthen their ability to
develop meaningful and lifelong careers in film, tape
and digital media.

Minnesota Public Radio

(MPR) is a regional public
radio network that serves some 1,000,000 listeners
each week across seven states on 43 public radio
stations. In addition, as American Public Media
(APM), it produces more nationally distributed news
and documentary programming than any other
station-based public radio organization, reaching
approximately 16 million people per week.

The National Alliance for Media Arts and
Culture

(NAMAC) is the national service
organization for the media arts, providing leadership
training
and
professional
development,
organizational capacity building support, and
original research about the field. With more than 300
member organizations serving an estimated 400,000
film, video, audio, and digital creators, NAMAC has a
strong interest in ensuring that language or gestures
central to the meaning of film and audio works
2a


remain intact and are not eliminated or altered when
presented to the public.

The National Coalition Against Censorship


(NCAC), founded in 1974, is an alliance of 50
national nonprofit organizations, including religious,
educational, professional, artistic, labor and civil
rights groups united in the conviction that freedom of
thought, inquiry and expression are indispensable to
a healthy democracy. The positions advocated by
NCAC in this brief do not necessarily reflect the
positions of each of its participating organizations.

The National Federation of Community
Broadcasters

(NFCB) represents over 200
community-oriented radio stations across the United
States. Community radio is committed to airing
diverse, authentic voices and finds the current FCC
indecency regulations inconsistent and overbroad.
Since most community radio stations operate on
small budgets, they cannot afford the fines that can
now be charged for an inadvertent broadcast of
something that the Commission might decide is
indecent or profane, which has a chilling effect on
their editorial freedom and ability to serve their
communities.

PEN American Center

(PEN) is an organization of
over 2,900 novelists, poets, essayists, translators,
playwrights, and editors. As part of International
PEN, it and its affiliated organizations are chartered
to defend free and open communication within all
nations and internationally. American PEN has
taken a leading role in attacking rules that limit
freedom of expression in this country.
3a


Screen Actors Guild

(SAG) is the nation’s largest
labor union representing working actors. Established
in 1933, SAG represents over 125,000 performers
who work in film and television, industrials,
commercials, video games, music videos and other
new media formats. SAG exists to enhance actors’
working conditions, compensation and benefits and
to be a powerful, unified voice on behalf of artists’
rights throughout the world. As many of SAG’s
members perform on broadcast television, they are
directly affected by the FCC’s censorship system.

Southern California Public Radio

(SCPR) is a
public radio network that serves some 600,000
listeners each week across Los Angeles, Orange
County, the Inland Empire and the Coachella Valley.

The Tully Center for Free Speech

is an academic
center based at the S.I. Newhouse School of Public
Communications at Syracuse University in Syracuse,
New York. The center is charged with educating
students and the public about First Amendment, free
speech and free press issues.

Washington Area Lawyers for the Arts

(WALA)
is the largest provider of pro bono legal services and
legal education on arts-related matters in the
Washington, D.C., metropolitan area, annually
serving
hundreds
of
artists
and
artistic
organizations. Through the work of attorney
volunteers who regularly counsel low-income artists,
the organization has observed directly the chilling
effects on artists’ free expression rights caused by
vague and overreaching government censorship.


4a


The Woodhull Freedom Foundation

(WFF) is a
non-profit organization that works to affirm sexual
freedom as a fundamental human right by protecting
and advancing freedom of speech and sexual
expression. WFF promotes sexuality as a positive
personal, social and moral value through research,
advocacy, activism, education and outreach.

Writers Guild of America, West

(WGAW) is a
labor organization and the collective bargaining
representative of approximately 11,000 professional
writers in the motion picture, television and new
media industries. The court’s decision will have a
direct impact on the WGAW’s members as content
creators in broadcast television.

5a


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