Amicus Curiae Brief — Sable Communications of California, Inc. v. Federal Communications Commission

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iv ilo) ; ———

Nos. 88-515 and 88-525 FILED

IN THE 27 1389

Supreme Court of the United Statgs-os*" © SA »

OcTOBER TERM, 1988

SABLE COMMUNICATIONS OF CALIFORNIA, INC.,

. Appellant,

FEDERAL COMMUNICATIONS COMMISSION and

RICHARD L. THORNBURGH,

ATTORNEY GENERAL OF THE UNITED STATES,

A ppe llees.

FEDERAL COMMUNICATIONS COMMISSION and

RicHARD L. THORNBURGH,

ATTORNEY GENERAL OF THE UNITED STATES,

2 Cross-A pp llants,

SABLE COMMUNICATIONS OF CALIFORNIA, INC.,

( ‘ross-A ppe llee.

On Appeal from the United States District Court

for the Central District of California

BRIEF OF ACTION FOR CHILDREN’S TELEVISION,

AMERICAN CIVIL LIBERTIES UNION,

CAPITAL CITIES ABC, INC. CBS INC.

INFINITY BROADCASTING CORPORATION,

MOTION PICTURE ASSOCIATION OF AMERICA, INC,

NATIONAL ASSOCIATION OF BROADCASTERS,

NATIONAL BROADCASTING COMPANY, INC,

NATIONAL PUBLIC RADIO,

PEOPLE FOR THE AMERICAN WAY,

PUBLIC BROADCASTING SERVICE,

RADIO-TELEVISION NEWS DIRECTORS ASSOCIATION,

THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS,

SOCTETY OF PROFESSIONAL JOURNALISTS,

AND TRIBUNE BROADCASTING COMPANY

AS AMICI CURIAE

IN SUPPORT OF APPELLANT, CROSS-APPELLEE

[ Counsel listed on inside cover]

Ieee ee remem eecmeeecnenneeennnmne

WiLeon - Eres Preintine Co.. Inc. - 789-0006 - Wasnineron, OC. 20001

Of Counsel:

SaM ANTAR

MARIAN E. LINDBERG

CaPpimTraL Cities, ABC, INC.

1330 Avenue of the Americas

New York, New York 10019

Of Counsel:

HOWARD F.. JABCKEL

CBS INc.

51 West 52 Street

New York, New York 10019

Trmotny B. DYK

Counsel of Record

Teresa D. BAER

Witmer, CUTLER & PICKERING

2445 M Street, N.W.

Washington, D.C. 20037-1420

(202) 663-6000

Counsel for Amici and Capital

Cities / ABC, Inc. and CBS Inc.

HENRY GELLER

DONNA LAMPERT

1776 K Street, N.W.

Suite 900

Washington, D.C. 20006

Counsel for Action for

Children's Television

JoHN A. POWELL

C. EDwIn BAKER

AMERICAN CIviL LIBERTIES

UNION FOUNDATION

132 West 43rd Street

New York, New York 10036

Counsel for American Civil

Liberties Union

STEVEN A. LERMAN

DENNIS P. CORBETT

LAURA B. HUMPHRIES

LEVENTHAL, SENTER

& LERMAN

2000 K Street, N.W.

Suite 600

Washington, D.C. 20006

Counsel for Infinity

Broadcasting Corporation

Fritz E. ATTAWAY

1600 I Street, N.W.

Washington, D.C. 20006

Counsel for Motion Picture

issociation of America, Ine.

[ Additional Counsel! Listed on Following Pages |

Of Counsel:

SUSAN M. Liss

JAN G. LEVINE

PEOPLE FOR THE

AMERICAN Way

2000 M Street, N.W.

Washington, D.C. 20036

HENRY L. BAUMANN

STEVEN A. BOOKSHESTER

1771 N Street, N.W.

Washington, D.C. 20036

Counsel for National

Association of Broadcasters

HOWARD MONDERER

MOLLY PAUKER

1331 Pennsylvania Ave., N.W.

Suite 700 South

Washington, D.C. 20004

Counsel for National

Broadcasting Company, Inc.

ANDREW JAY SCHWARTZMAN

MepDtIaA ACCESS PROJECT

2000 M Street, N.W.

Washington, D.C. 20036

Counsel for People for the

American Way

PauLa A. J AMESON

NANCY H. HENDRY

1320 Braddock Place ~

Alexandria, Virginia 22314

Counsel for Public

Broadcasting Service

J. LAURENT SCHARFF

JAMES M. SMITH

REED SMITH SHAW & McCCLAY

1200 18th Street, N.W.

Washington, D.C. 20036

Counsel for Radio-Television

News Directors Association

[ Additional Counsel Listed on Following Page]

Of Counsel:

Davip D. HILLER

CHARLES J. SENNETT

TRIBUNE COMPANY

435 North Michigan Avenue

Chicago, Illinois 60611

March 27, 1989

JANE E. KIRTLEY

800 18th Street, N.W.

Washington, D.C. 20006

Counsel for The Reporters

Committee for Freedom

of the Press

Bruce W. SANFORD

R. B. QUINN

BAKER & HOSTETLER

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

1111 19th Street, N.W.

Washington, D.C. 20036

Counsel for Tribune

Broadcasting Company

TABLE OF CONTENTS

ET iirseiiscecwitiilintihaceiinennis iain ilies

Ty accsticheninesieinsiaicisticinenniisibbniiapeiapaiastineiintiaitbiainn

I. INDECENT SPEECH IS PROTECTED BY

THE FIRST AMENDMENT ..................0.......

Il. A BLANKET BAN ON INDECENT SPEECH

IS UNCONSTITUTIONAL ....

Ill. THE TERM “INDECENT” IN SECTION

223(b) IS UNCONSTITUTIONALLY VAGUE

ok ER eS sa

See TTI TIT csccsstrerenensesesssisbesneiniaciciensiahiniiihiiitinantitimatatai

Page

TABLE OF AUTHORITIES

CASES Page

Action for Children’s Television v. FCC, 852 F.2d

I IS Ee 10, 11, 14, 27

Action for Children’s Television v. FCC, petition

for review filed, No. 88-1916 (Dec. 30, 1988),

stay granted (D.C. Cir. Jan. 23, 1989) ............... 4

American Booksellers Association v. McAuliffe,

533 F. Supp. 50 (N.D. Ga. 1981) ......................... 11

American Booksellers Association v. Webb, 643

F. Supp. 1546 (N.D. Ga. 1986) —........................... 11

Bantam Books, Inc. v. Sullivan, 372 U.S. 58

I aaa ak alae 8, 11, 29

Bethel School District No. 403 v. Fraser, 478 U.S.

RRS EES RES SE Sr een Soe oO 15

Black v. Cutter Laboratories, 351 U.S. 292 (1956)... 23

Bolger v. Youngs Drug Products Corp., 463 U.S.

Sie SITE asuncdensssintrionteinatnansantnatahaniiieniiniataial 8, 11, 14, 18, 20

Bose Corp. v. Consumers Union, 466 U.S. 485

I ieee ial ar aciian eeticiateln eal aaa acmiamaint 13

Brown v. Oklahoma, 408 U.S. 914 (1972) ............ 30

Butler v. Michigan, 352 U.S. 380 (1957) 0000000. 6, 11,18

Carlin Communications, Inc. v. FCC, 749 F.2d 113

8 EERE SE eee cSruaoonr nea 3,7

Carlin Communications, Inc. v. FCC, 787 F.2d

— BR ee 7

Carlin Communications, Inc. v. FCC, 837 F.2d

546 (2d Cir.), cert. denied, 109 S. Ct. 305

SSE SSES REE SEIN RS URE Ee Rare enw tare ewe sence 7, 8,10, 11, 29

City of Los Angeles v. Preferred Communications,

* BF 2. xe 13

Cohen v. California, 403 U.S. 15 (1971) 000000. passim

Columbia Broadcasting System v. Democratic Na-

tional Committee, 412 U.S. 94 (1973). 13

Community Television of Utah, Inc. v. Roy City,

555 F. Supp. 1164 (D. Utah 1982). 10, 11, 14

Community Television of Utah, Inc. v. Wilkinson,

611 F. Supp. 1099 (D. Utah 1985), aff'd sub

nom. Jones v. Wilkinson, 800 F.2d 989 (10th

Cir. 1986) (per curiam), aff'd, 480 U.S. 926

FS ee 15

~ iii

TABLE OF AUTHORITIES—Continued

e Page

Consolidated Edison Co. v. Public Service Com-

mission, 447 U.S. 530 (1980) 0... 20

Cruz v. Ferre, 755 F.2d 1415 (11th Cir. 1985)..10, 11, 14

Erznoznik v. City of Jacksonville, 422 U.S. 205

RE 2 Te ee 9

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

Gagliardo v. United States, 366 F.2d 720 (9th

SL ee Se 22

Ginsberg v. New York, 390 U.S. 629 (1968)........ 12, 15

Grayned v. City of Rockford, 408 U.S. 104 (1972). 21

Hamling v. United States, 418 U.S. 87 (1974)... 22

Home Box Office, Inc. v. Wilkinson, 531 F. Supp.

gee ee 10, 11

Hustler Magazine v. Falwell, 108 S. Ct. 876

PEER ee eee een 9, 11, 30

Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) .... 21

Kolender v. Lawson, 461 U.S. 352 (1983)... 21

Landmark Communications, Inc. v. Virginia, 435

oy HE eee ae eee 13

Lewis v. City of New Orleans, 408 U.S. 913

ES Seren cer aa eee 30

Marbury v. Madison, 5 U.S. (1 Cranch) 137

PRR EE ley ee as A 12

Meredith Corp. v. FCC, 809 F.2d 863 (D.C. Cir.

I ana Ea 27

Miller v. California, 413 U.S. 15 (1978) ................ 8

NAACP v,. Alabama, 377 U.S. 288 (1964)... 21

New York Times Co. v. Sullivan, 376 U.S. 254

eke es) Re i eas Sa 21

Pacifica Foundation v. FCC, 556 F.2d 9 (D.C.

Cir. 1977), rev'd, 438 U.S. 726 (1978) 14, 23

Papachristou v. City of Jacksonville, 405 U.S. 156

ee ee ee eS ee eee 21

Papish v. Board of Curators, 410 U.S. 667 (1973)

gg ERE eer 2 ee eer ee 9

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

ET a ae ee 4

Rosenfeld v. New Jersey, 408 US. 901 (1972)... 30

Rostker v. Goldberg, 453 U.S. 57 (1981) 12

Roth v. United States, 354 U.S. 476 (1957)... 9, 22

TABLE OF AUTHORITIES—Continued

Rowan v. United States Post Office Department,

U.S. 728 (1970) ..

Rushia v. Town of Ashburnham, 582 F. Supp. 900

D. Mass. 1983)

San Francisco Arts & Athletics, Inc. v. United

States Olympic Committee, 107 S. Ct. 2971

(1987)

Schad v. Borough of Mt. Ephraim, 452 U.S. 61

a eee

Schneider v. State, 308 U.S. 147 (1939) —............

Smith v. Goguen, 415 U.S. 566 (1974) —........

Speiser v. Randall, 357 U.S. 513 (1958)

Syracuse Peace Council v. FCC, No. 87-1516, slip

om (D.C. Cir. Feb. 10, 1968) —...................

Tallman v. United States, 465 F.2d 282 (7th Cir.

Tattered Cover, Inc. v. Tooley, 696 P.2d 780 (Colo.

gS se Serer

United States v. Simpson, 561 F.2d 53 (7th Cir.

EE ee ee a Ee

United States v. 12 200-ft. Reels of Super 8mm

Walters v. National Association of Radiation

Survivors, 473 U.S. 305 (1985) 2...

Whitney v. California, 274 U.S. 357 (1927)........

Wilkinson v. Jones, 480 U.S. 926 (1987) (mem.)..

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

Young v. American Mini Theatres, Inc., 427 U.S.

RNR Ie a aa

ADMINISTRATIVE DECISIONS

Audio Enterprises, Inc., 64 Rad. Reg. 2d (P&F)

Fa arta IS FNS Pee Sea OE

Citizens Complaint Against Pacifica Foundation,

56 F.C.C.2d 94 (1975), rev'd sub nom. Pacifica

Foundation v. FCC, 556 F.2d 9 (D.C. Cir.

1977), rev'd, 438 U.S. 726 (1978)

SRO Ree eee eee eee ee eee

Decency in Broadcasting, Inc., 94 F.C.C.2d 1162

I aii le =

Eastern Educational Radio (WUHY-FM), 24

F.C.C.2d 408 (1970)

Page

TABLE OF AUTHORITIES—Continued

Enforcement of Prohibitions Against Broadcast

Obscenity and Indecency in 18 U.S.C. § 1464,

4 FCC Red 457 (1988).

Enforcement of Prohibitions Against the Use of

Common Carriers for the Transmission of Ob-

scene Materials, 50 Fed. Reg. 42,699 (1985),

rev'd, Carlin Communications, Inc. v. FCC, 787

F.2d 846 (2d Cir. 1986)

Enforcement of Prohibitions Against the Use of

Common Carriers for the Transmission of Ob-

scene Materials, 2 FCC Red 2714, stay denied,

2 FCC Red 3672 (1987), aff'd sub nom. Carlin

Communications, Inc. v. FCC, 837 F.2d 546 (2d

Cir.), cert. denied, 109 S. Ct. 305 (1988)...

Enforcement of Prohibitions Against the Use of

Common Carriers for the Transmission of Ob-

scene Materials, 2 FCC Red 3672 (1987)...

Harriscope of Chicago, Inc. 65 Rad. Reg. 2d

(P&F) 1512 (1989)

Infinity Broadcasting Corp. of Pennsylvania, 2

FCC Red 2705, reconsideration and clarification

granted in part, denied in part, 3 FCC Red 930

(1987), vacated in part and remanded sub nom.

Action for Children’s Television v. FCC, 852

P26 8268 (AC. Gir. 1008)...

Infinity Broadcasting Corp. of Pennsylvania, 3

FCC Red 930 (1987), vacated in part and re-

manded sub nom. Action for Children’s Televi-

Page

16,17

sion v. FCC, 852 F.2d 1332 (D.C. Cir. 1988). passim

Intercambio, Inc., 64 Rad. Reg. 2d (P&F) 1663

Kansas City Television, Ltd., Order, FCC 88-274

ES Ee eee

Letter to Hon. John E. Bourne, Jr.. from Chief,

Mass Media Bureau (Apr. 7, 1988)...

Letter to Thomas Byrne from Chief, Mass Media

TABLE OF AUTHORITIES—Continued

Pacifica Foundation, 95 F.C.C.2d 750 (1983)...

Pacifica Foundation, Inc., 2 FCC Red 2698, re-

consideration and clarification granted in part,

denied in part sub nom. Infinity Broadcasting

Corp. of Pennsylvania, 3 FCC Red 930 (1987),

vacated in part and remanded sub nom. Action

for Children’s Television v. FCC, 852 F.2d 1332

(D.C. Cir. 1988).

WGBH Educational Foundation, 69 FC. Cc 24 1250

= 24

CONSTITUTIONAL, STATUTORY, AND REGULA-

TORY PROVISIONS

and Related Agencies for the

ing September 30, 1989, and

poses, Pub. L. No. 100-459,

sateen Cle

SID. ncmeianmmeae

47 U.S.C. § 544(4) (2) (A) | 3

17 C.F.R. § 73.3999 4

LEGISLATIVE HISTORY

Cable-Porn and Dial-a-Porn Control Act: Hear-

ing on S. 1090 Before the Subcomm. on Criminal

Law of the Senate Comm. on the Judiciary,

99th Cong., Ist Sess. (1985)... 19

Telephone Decency Act of 1987: Hearings on

H.R. 1786 Before the Subcomm. on Telecom-

munications and Finance of the House Comm.

on Energy and Commerce, 100th Cong., Ist

Sess. (1987) 10, 19, 24, 25, 26

133 Cong. Ree. $14,794-96 (daily ed. Dee. 1,

a icmmemuats 1B, 16, 25

vii

TABLE OF AUTHORITIES—Continued

134 Cong. Rec. H1690-91 (daily ed. Apr. 19,

Remarks on Signing the Augustus F. Hawkins-

Robert T. Stafford Elementary and Secondary

School Improvement Amendments of 1988, 24

Weekly Comp. Pres. Doe. 540 (Apr. 28, 1988).

MISCELLANEOUS

Wall St. J., May 26, 1987, at 35, col. 2...

Page

In THE

Supreme Court of the United States

OcTOBER TERM, 1988

Nos. 88-515 and 88-525

SABLE COMMUNICATIONS OF CALIFORNIA, INC.,

2. Appellant,

FEDERAL COMMUNICATIONS COMMISSION and

RIcHARD L. THORNBURGH,

ATTORNEY GENERAL OF THE UNITED STATES,

Appellees.

FEDERAL COMMUNICATIONS COMMISSION and

RICHARD L. THORNBURGH,

ATTORNEY GENERAL OF THE UNITED STATES,

Cross-A ppellants,

SABLE COMMUNICATIONS OF CALIFORNIA, INC.,

Cross-A ppellee.

On Appeal from the United States DP strict Court

for the Central District of California

BRIEF OF ACTION FOR CHILDREN’S TELEVISION,

ET AL. AS AMICI CURIAE

IN SUPPORT OF APPELLANT/CROSS-APPELLEE

INTEREST OF THE AMICI CURIAE'

The amici* are a group of commercial broadcasters,

public broadcasters, cable interests, public interest

' Written consent to the filing of this brief has been obtained

from the parties to this case. The consent letters accompany this

brief.

* The amici are listed on the cover of this brief. The lead amicus,

Action for Children’s Television, has participated in earlier Federal

Communications Commission and court proceedings, seeking to im-

groups, and associations which represent broadcasters,

journalists, program suppliers, listeners, and viewers.

Amici do not here challenge existing constitutional

indecent material. In broadcasting, this material gener-

the level of children in the name of protecting children.

* Brief for the Cross-Appellants/ Appellees at 23 .15 (hereinafter

raised in this case by Sable Communications of California, Inc.

Amicus American Civil Liberties Union opposes any prohibitions on

obscenity as a violation of the First Amendment; it does not view

that issue as raised by the questions on which probable jurisdiction

was noted.

418 U.S.C. § 1464 provides that “(w)hoever utters any obscene,

indecent, or profane language by means of radio communication

Ht tbe i

Hae gigi

THERE

Hr fi

ie HH

ais

id. at 23 0.15. Also, this case in-

of a variety of Mecking mechaniems in a

msitens Ghnmn thes dmtediinn Gon t tannituaiineh eal Gaitenn

(as in cable) appear to be an unsatisfactory methed of assisting

parental control. See Carlin Communications, Ine. o. POC, 749 F.2d

‘TS, 121 (2d Cir. 1984) (setting aside regulation involving time

channeling for telephone medium)

* The statute requires that the Commission “promulgate regula-

tions in accordance with section 1464, tith 18 United States Code,

Mid

- ill

HAN Ett

BUsigges

Hel

it.

87-1516, slip op. (D.C. Cir. Feb. 10, 1989), and many

broadcast regulation, see, ¢.¢.. Syracuse Peace C

sees teen tachend Girne euane Gamniee enneiee

questions, which the Court need not reach here

® See cases cited in note 33 m/fre

as live news programs dealing with angry political dem-

onstrations, informational programs about serious health

issues like AIDS, and the broadcast of other news and

public affairs programming involving those persons who,

for whatever reason—cultural impoverishment, social dis-

affection, or the evolution of community mores—regularly

and publicly use language which some consider offensive.

The Commission’s standard also extends to presentations

of serious drama, motion pictures, modern dance, drama-

tizations of serious works of literature, and satirical

material.” Amici believe that they could not realistically

portray American society in the programs which they

offer if they were effectively barred from including ma-

terial deemed to be indecent because it is offensive to

some. Amici believe that the Constitution does not re-

quire that political, social, and artistic representations be

sanitized so that they are always fit for children, and

that the First Amendment protects the important role of

the media in mirroring both what is desirable and what

is offensive in modern America."

Amici believe that any blanket ban on indecent speech

within any medium would not only prevent the presenta-

tion of material with substantial social value but, because

of the vagueness and overbreadth of the definition of in-

decency, would also have a substantial chilling effect on

the dissemination of material that is not indecent. Amici

believe that such a ban violates the First Amendment

rights not only of the producers and distributors of such

materials but also of the adult audiences that they serve.

SUMMARY OF ARGUMENT

Section 223(b) is unconstitutional because it totally

bans protected speech. Under current law, obscenity is

not protected, but this Court has repeatedly made clear

that the First Amendment protects indecent, non-obscene

speech. It is equally clear that government cannot impose

10 See page 28 infra.

11 As this Court noted in Cohen v. California, 403 U.S. 15, 25

(1971), “one man’s vulgarity is another’s lyric.”

a blanket ban on protected speech and thus “reduce the

adult population” to seeing and hearing “only what is

fit for children.” Butler v. Michigan, 352 U.S. 380, 383

(1957). Congress’ determination that a total ban is nec-

essary cannot prevent this Court from examining the

strength and legitimacy of the asserted governmental

interest.

In fact, this statute rests on an impermissible govern-

mental objective. The government’s sole legitimate in-

terest in regulating indecent speech is, at most, to assist

parents in supervising their children, not to supersede

parental authority entirely. A variety of mechanisms

are available to assist such parental supervision. Thus,

in broadcasting, indecency may be regulated through

channeling broadcasts to hours when most parents are

able to supervise their children; in cable, parents must

initially choose to subscribe to a particular service, and,

if they choose to subscribe, may use lockboxes to screen

material they believe their children should not watch;

and in print, the sale of indecent materials to minors

may be barred because that bar does not block adult

access to the material. In the telephone medium, blocking

devices, scrambling, and access codes promote the same

goal of parental choice. However, the government can-

not go so far as to ban adult access entirely, as prior

cases have uniformly held.

The indecency standard incorporated by the statute is

also unconstitutionally vague and overbroad. The Com-

mission has ruled that it will apply in the telephone con-

text the same generic definition of indecency that it now

applies in broadcasting. In contrast to the prevailing

rule with respect to obscenity, the serious literary, ar-

tistic, political, and scientific value of the speech does not

bar a finding that it is indecent. Nor is it necessary that

the material appeal to the prurient interest. The Com-

mission has declined to provide any meaningful illumina-

tion of this standard, but has left electronic publishers to

interpret it at their peril. The vagueness and over-

breadth of this standard chills speech that is fully pro-

tected by the First Amendment, including news, public

affairs, information, drama, satire, and artistic expres-

sion of great value to the adult audience.

ARGUMENT

INTRODUCTION

Before the blanket ban on telephone indecency (the

“Bliley-Helms Amendment”)'? was enacted, the Commis-

sion sought to regulate indecency in the telephone me-

dium through the use of access codes, scrambling, block-

ing devices, and other mechanisms that facilitate parental

choice."* Despite the existence of these mechanisms, Con-

gress in April 1988 imposed a blanket ban on the dissem-

ination of telephone indecency, and thereafter took the

same action for the broadcast medium."* These amici

urge that the blanket ban on telephone indecency, like

any other blanket ban on indecent speech, is unconstitu-

tional both because it totally bans protected speech and

because the definition of indecency is unconstitutionally

overbroad and vague.'®

12 Augustus F. Hawkins-Robert T. Stafford Elementary and Sec-

ondary School Improvement Amendments of 1988, Pub. L. No. 100-

297, § 6101, 102 Stat. 423 (1988).

18 The permissibility and adequacy of these various regulations

have been extensively litigated. See Carlin Communications, Inc. v.

FCC, 837 F.2d 546 (2d Cir.) (upholding regulations involving access

codes, scrambling, and credit card payments insofar as they con-

cerned obscenity), cert. denied, 109 S. Ct. 305 (1988); Carlin Com-

munications, Inc. v. FCC, 787 F.2d 846 (2d Cir. 1986) (setting aside

regulation involving weeess codes with respect to the New York

Telephone Company system because there was no evidence that

access codes were technically feasible on that system and were the

least restrictive means to limit minors’ access); Carlin Communi-

cations, Inc. v. FCC, 749 F.2d 113 (2d Cir. 1984) (setting aside

regulation involving time channeling and credit card payments).

14 See note 7 supra.

15 This brief does not address the question whether FCC vr.

Pacifica Foundation, 438 U.S. 726 (1978), was correctly decided.

In this connection, we note that the Second Circuit has held that

no regulation of indecency is permissible in the telephone medium,

I. INDECENT SPEECH IS PROTECTED BY THE

FIRST AMENDMENT.

Although the government does not say so explicitly, the

premise of its argument supporting the ban on indecent

telephone speech is that the First Amendment does not

protect indecency.'® In this respect, the government’s ar-

gument is fatally flawed. Under current law, the First

Amendment does not protect obscene speech.'" But it has

long been clear that ‘indecent,” non-obscene speech is

protected.

This Court has repeatedly recognized that the protec-

tions of the First Amendment extend to indecency. For

example, in Bantam Books, Inc. v. Sullivan, the Court

held unconstitutional a state law regulating indecent and

other speech “manifestly tending to [contribute] to the

corruption of the youth” because the law “provide|d] no

safeguards whatever against the suppression of non-

obscene, and therefore constitutionally protected, mat-

ter.” '* In Cohen v. California, this Court invalidated a

conviction imposed for wearing a jacket bearing a four-

letter word in a courthouse corridor because the speech

was protected and could not be suppressed.” More re-

cently, in Bolger v. Youngs Drug Products Corp., the

Court invalidated a ban on mailing advertisements for

contraceptives, holding that the material was protected

and that “|tihe level of discourse reaching a mailbox

simply cannot be limited to that which would be suitable

even that designed to aid parental supervision. Carlin Communica-

tions, Inc., 837 F.2d at 558-60. This question need not be reached

here to invalidate the present legislation.

16 See Gov't Br. at 25. That position is taken explicitly by a

number of the amici supporting the government. See Brief of

Morality In Media, Inc. as Amicus Curiae at 10-16; Brief Amici

Curiae of Citizens for Decency Through Law, Inc., et al. at 7-17.

1? Miller v. California, 413 U.S. 15, 23 (1973).

18 372 U.S. 58, 70 (1963) (emphasis supplied).

19 403 U.S, 15 (1971).

for a sandbox.” * Only last term in Hustler Magazine v.

Falwell, the Court unanimously held that an offensive

political cartoon using sexual innuendo was protected by

the First Amendment.”

In FCC v. Pacifica Foundation;* upon which the gov-

ernment places primary reliance,” this Court, while sus-

taining channeling, also held that the First Amendment

protects indecent broadcasts. In his dissent, Justice Bren-

nan commented on the Court’s “unanimous agreement

that the Carlin monologue is protected speech.” ** In his

plurality opinion, Justice Stevens noted that indecent

speech, while subject to channeling in the broadcast me-

dium, is “not entirely outside the protection of the First

Amendment.” * And in his concurrence, Justice Powell

explicitly stated his view that the First Amendment pro-

tects indecent speech. He noted that, except in the con-

text of commercial speech, the Court is not “free gen-

erally to decide on the basis of its content which speech

protected by the First Amendment is most ‘valuable’ and

hence deserving of the most protection, and which is less

‘valuable’ and hence deserving of less protection.” *

*° 463 U.S. 60, 74 (1983).

21 108 S. Ct. 876 (1988). As this Court has noted:

The portrayal of sex, e.g. in art, literature and scientific

works, is not itself sufficient reason to deny material the con-

stitutional protection of freedom of speech and press. Sex, a

great and mysterious motive force in human life, has indis-

putably been a subject of absorbing interest to mankind

through the ages; it is one of the vital problems of human

interest and public concern.

Roth v. United States, 354 U.S. 476, 487 (1957) (footnote omitted) ;

see also Erznoanik v. City of Jacksonville, 422 U.S. 205 (1975);

Papish v. Board of Curators, 410 U.S. 667 (1973) (per curiam).

22 438 U.S. 726 (1978).

28 See Gov't Br. at 25.

* Pacifica, 438 U.S. at 763 (Brennan, J., dissenting).

28 Jd. at 746 (plurality opinion).

28 Jd. at 761 & n.3 ( Powell, J., concurring).

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The cases cited by «he government do not support its

argument.** Ever since Marbury v. Madison,” this Court

has made clear that the courts must independently inter-

pret the Constitution. Nor is a congressional determina-

tion as to the need for legislation to be given weight

where the government seeks to suppress speech under the

First Amendment. This rule dates back to Justice

Brandeis’ concurrence in Whitney v. California.“ Ad-

dressing a statute barring the ad~ocacy of criminal syn-

dicalism, Justice Brandeis stated that:

This legislative declaration . . . does not preclude

enquiry into the question whether, at the time and

under the circumstances, the conditions existed

which are essential to validity under the Federal

Constitution. . . . Whenever the fundamental rights

of free speech and assembly are alleged to have been

invaded, it must remain open to a defendant to pre-

sent the issue whether there actually did exist at the

time a clear danger; whether the danger, if any, was

imminent; and whether the evi! apprehended was

36 The government’s cases are not remotely on point. See Walters

v. National Ass'n of Radiation Survivors, 473 U.S. 305, 330-31 n.12

(1985) (upholding statutory limitation on attorneys’ fees in benefit

cases before the Veterans’ Administration, and noting that in reach-

ing that conclusion the Court “need not rely on” Congress’ findings

on the question); Rostker v. Goldberg, 453 U.S. 57, 64 (1981)

(sustaining statute excluding women from registering for the

draft as not a violation of due process, relying on congressional

findings because of “Congress’ authority over national defense and

military affairs” ).

Ginsberg v. New York, 290 U.S. 629 (1968), does not hold that

deference to legislative judgments is appropriate in First Amend-

ment cases. That case held only that, because “obscenity is not pro-

tected expression,” sustaining the statute at issue there “require[d]

only that we be able to say that it was not irrational for the legisla-

ture to find that exposure to material condemned by the statute is

harmful to minors.” /d. at 641.

375 U.S. (1 Cranch) 137 (1803).

38 974 U.S. 357 (1927, (Brandeis, J., joined by Holmes, J., con-

curring).

one so substantial as to justify the stringent restric-

tion interposed by the legislature.”

The Supreme Court has reaffirmed the rule in more re-

cent cases. In Landmark Communications, Inc. v. Vir-

ginia, the Court stated that “[d]eference to a legislative

finding cannot limit judicial inquiry when First Amend-

ment rights are at stake,” *’ and explained that “|wlere

it otherwise, the scope of freedom of speech and of the

press would be subject to legislative definition and the

function of the First Amendment as a check on legisla-

tive power would be nullified.” *

In any event, Congress has made no finding in enact-

ing the blanket ban on telephone indecency that such a

ban is necessary to achieve a constitutional objective. The

primary focus of the legislative history of the Bliley-

Helms Amendment insofar as it concerns indecency was

the desire to prevent all children from hearing material

deemed to be “indecent.” ** That is not a legitimate gov-

ernmental objective.

39 Jd. at 378-79 (Brandeis, J., joined by Holmes, J., concurring).

40 435 U.S. 829, 843 (1978).

41Jd. at 844; see also City of Los Angeles v. Preferred Com-

munications, Inc., 476 U.S. 488, 496 (1986) (“Where a law is

subjected to a colorable First Amendment challenge, the rule of

rationality which will sustain legislation against other constitutional

challenges typically does not have the same controlling force.”) ;

Bose Corp. v. Consumers Union, 466 U.S. 485, 505 (1984) (in First

Amendment cases, the Court “has regularly conducted an independ-

ent review of the record both to be sure that the speech in question

actually falls within the unprotected category and to confine the

perimeters of any unprotected category within acceptably narrow

limits in an effort to ensure that protected expression will not be

inhibited”). In the broadcast medium, courts pay close attention

to what Congress has done, but are not required to defer to con-

gressional judgments. See, e.g., Columbia Broadcasting Sys. v.

Democratic Nat'l Comm., 412 U.S. 94, 102-03 (1973).

42 See, e.g., 134 Cong. Rec. H1690-91 (daily ed. Apr. 19, 1988)

(remarks of Rep. Bliley); 133 Cong. Rec. 816,794-96 (daily ed.

Dec. 1, 1987) (remarks of Sen. Helms).

In the area of indecency, the only arguably legitimate

governmental purpose is to aid parents in supervising

their children. This Court has noted that the “primary

role of the parents in the upbringing of their children is

now established beyond debate as an enduring American

tradition.” ** In the broadcast medium, that purpose is

achieved by the channeling of indecent speech to protect

“unsupervised children.” ‘* The government’s role is thus

limited to “facilitat{ing] parental supervision of chil-

dren’s listening.” *

In cable too, the sole government interest lies at most

in assisting parents in supervising their children. The

cases have emphasized the parental manageability of cable

television, explaining that:

(Pjarents must decide whether to allow Cablevision

into the home. Parents decide whether to select sup-

plementary programming services. .. . Those serv-

ices publish programming guides which identify

programs containing “vulgarity,” “nudity,” and “vio-

lence.” Additionally, parents may obtain a “lock-

box” or “parental key” device enabling parents to

prevent children from gaining access to “objection-

able’ channels of programming.”

43 Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); see also Bolger,

463 U.S. at 73-75.

44 Pacifica, 438 U.S. at 757 (Powell, J., concurring) (emphasis

supplied). While this Court in Pacifica relied in part on the argu-

ment that adults should also be protected from indecent material,

438 U.S. at 748-49, the Court has since disavowed this rationale,

see Bolger, 463 U.S. at 71-72. In Pacifica, Justice Powell relied

heavily on Judge Leventhal’s thoughtful dissenting opinion in the

court of appeals, 438 U.S. at 757 n.1 (Powell, J. concurring), which

likewise turned on the assumption that channeling is appropriate

to enable adult supervision, Pacifica Found. v. FCC, 556 F.2d 9,

32-36 (D.C. Cir. 1977) (Leventhal, J., dissenting). Judge Leven-

thal concluded that the Commission could “assist parents in their

protection of young children.” Jd. at 37 (Leventhal, J., dissenting).

45 ACT, 852 F.2d at 1343.

46 Cruz, 755 F.2d at 1420; see also Community Television of Utah,

Inc., 555 F. Supp. at 1172 (noting “the responsibility of a parent to

oversee the development of his child”).

In cable, courts have also made clear that “parents [must

be allowed] to provide materials for their children that

the children themselves cannot purchase... .”

So too, in reviewing statutes regulating the display of

books and magazines, this Court has consistently reaf-

firmed the role of parental choice. In Ginsberg v. New

York,** the opinion made clear that “constitutional inter-

pretation has consistently recognized that the parents’

claim to authority in their own household to direct

the rearing of their children is basic in the structure of

our society.” *” Explaining that laws prohibiting the dis-

tribution to minors of material that is obscene as to them

“aid discharge” of parents’ “primary responsibility for

children’s well-being,” *’ the Court went on to note ap-

provingly that “the prohibition against sales to minors

does not bar parents who so desire from purchasing the

magazines for their children.” *'

The authorities have consistently rejected a blanket

ban as neither necessary nor appropriate to aid parental

supervision.”» The government has not shown why the

fundamental role of parents in making choices for their

children, and in deciding how to raise their children, is

suddenly rendered irrelevant when the medium is the

telephone instead of broadcasting, cable, or print.

47 Community Television of Utah, Inc. v. Wilkinson, 611 F. Supp.

1099, 1115 (D. Utah 1985), aff'd sub nom. Jones v. Wilkinson, 800

F.2d 989 (10th Cir. 1986) (per curiam), aff'd, 480 U.S. 926 (1987)

(mem.).

#8 390 U.S. 629 (1968).

#9 Jd. at 639.

5° Td.

51 Jd. We note that parental choice is also facilitated in movie

theaters through the movie ratings system.

52 Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986),

does not support a contrary view, since the holding in that case

rests on the need for school officials to prevent disruption of the

school’s educational mission by indecent speech.

In seeking to justify the blanket ban, the government

suggests that Congress did act to support the role of

parental choice, and relies on a supposed congressional

determination that a total ban was necessary for that

purpose.” As we have already noted, such a congres-

sional finding would be entitled to no weight in the First

Amendment area,“ and in fact no such finding was

made here. There appears to be only a single sentence

in the legislative history addressing the question whether

parental supervision is sufficient. It appears in a legal

memorandum submitted by Citizens for Decency Through

Law which urged that it was a “virtual impossibility for

parents to monitor [telephone] use.” The government

nonetheless attempts to suggest that there was a con-

gressional finding that “neither access codes nor scram-

bling nor any other device so far developed can enable

parents to prevent children’s access.” The government

thus seeks to craft an elaborate and wholly speculative

rationale for totally banning indecent material to sup-

port parental choice.

There are a range of approaches to aiding parental

choice. The government is at a loss to explain why block-

ing devices, scrambling, and access codes,’ like channel-

53 Gov't Br. at 29-30.

54 See pages 12-13 supra.

55134 Cong. Rec. $4381 (daily ed. Apr. 20, 1988) (legal memo-

randum of Citizens for Decency Through Law) (footnote omitted).

The record also contains statements that children had secured

access. See, e.g., 133 Cong. Rec. 8$16,794-95 (daily ed. Dec. 1,

1987) (remarks of Sen. Helms). There is no suggestion that they

did so in circumstances where blocking, access codes, or scrambling

had been used to prevent it.

56 Gov't Br. at 30.

57 The Commission has specifically ruled that scrambling is an

“effective alternative method” of restricting minors’ access to tele-

phone services. Enforcement of Prohibitions Against the Use of

Common Carriers for the Transmission of Obscene Materials, 2

FCC Red 2714, 2720, stay denied, 2 FCC Red 3672 (1987), aff'd sub

nom. Carlin Communications, Inc. v. FCC, 837 F.2d 546 (2d Cir.),

cert. denied, 109 S. Ct. 305 (1988). The Commission also approved

ling in broadeasting, subscriptions and lockboxes in cable,

and prohibitions on the sale of printed materials to

minors, deo not allow parents to prevent their children

from having access to indecent telephone messages at

home if the parents choose to do so.*

However, the government urges that some “ ‘enter-

prising minors’” ” could evade their parents’ determina-

tion to deny access to indecent telephone services by visit-

ing a home at which parents had made a contrary deter-

mination.” But this argument is equally applicable to

every other medium of communications. A child whose

parents had determined not to buy a particular publi-

cation, not to subscribe to ‘or to lock out) a particular

cable service, or not to permit the viewing of a particular

television or radio program could visit a home where the

parents had made a contrary decision. Thus, the govern-

ment’s argument here amounts to nothing less than an

argument that speech characterized as “indecent” can be

denied entirely to the adult audience in every medium of

communications because of the possibility that some lim-

ited number of children, contrary to their parents’ wishes

and directions, could secure access to it. This theory

wholly loses sight of the importance of preserving adult

aecess to protected material.

requiring message providers to implement an access code system,

under which codes would be assigned only after an individual has

submitted a written application containing proof that he is an adult.

Id. at 2715, 2720. The Commission earlier approved prepayment by

credit card as well. Jd. at 2715. This case does not present issues

as to the permissibility or feasibility of requiring particular mecha-

nisms.

58 Gov't Br. at 30.

59 Jd. at 10, 35 (quoting Enforcement of Prohibitions Against

the Use of Common Carriers for the Transmission of Obscene

Materials, 50 Fed. Reg. 42,699, 42,706 n.54 (1985), rev'd, Carlin

Communications, Inc. v. FCC, 787 F.2d 846 (2d Cir. 1986) ).

be available from pay telephones.

As we have indicated," the courts have consistently

rejected this position and invalidated blanket bans, and

this Court has done so explicitly in the Bolger® and

Butler ™ cases. While the government is correct that

Pacifica did not directly decide the specific question of

whether a “safe harbor” was constitutionally required,”

Pacifica approved only the Commission’s notion of chan-

neling broadcast speech.” The necessary implication of

the Court’s conclusion that indecency is protected speech

is that a blanket ban is unconstitutional. Similarly, in

those limited areas where other regulation of indecent

speech has been permitted, this Court has approved it

only where it did not have the “effect of suppressing, or

greatly restricting access to, lawful speech” within the

particular medium.”

Until now, this has been the view of those charged

with enforcing the statute as well. In stark contrast to

their present position, both the Commission and the

Department of Justice in the past repeatedly emphasized

that a_blanket ban on indecent speech would be uncon-

stitutional. In rejecting a proposal for an absolute ban

on broadcast indecency, the Commission stated:

*! See page 11 supra.

82 See Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983);

see also Rowan v. United States Post Office Dep't, 397 U.S. 728,

738 (1970) (upholding statute under which a person offended by

advertisements sent through the mail can require that the mailer

cease mailing such advertising so as not to “risk that offensive ma-

terial come into the hands of his children’).

63 Butler v. Michigan, 352 U.S. 380 (1957).

*4 Pacifica, 438 U.S. at 750 n.28.

65 Jd. at 750; id. at 757 ( Powell, J., concurring).

66 Young v. American Mini Theatres Inc., 427 U.S. 50, 71 n.35

(1976) (plurality opinion); see also Schad v. Borough of Mt.

Ephraim, 452 U.S. 61, 74 (1981).

The unqualified reading of Section 1464 pressed by

{Morality In Media], under which the broadcast of

indecent material would be prohibited altogether

would, we believe, run afoul of this constitutional

premise.”

Testifying in 1987, the FCC’s General Counsel empha-

sized that “legal precedent suggests that government reg-

ulation in this area cannot go so far as to altogether ban

its dissemination to consenting adults.” * Thereafter, in

response to written questions from Congressman Thomas

J. Bliley, Jr., the sponsor of the legislation, she noted

that “in both broadcasting and dial-a-porn services, the

Commission has consistently regarded a total ban on the

dissemination of indecent, but not obscene, material to

be beyond the bounds permitted by Pacifica.” ® So too,

the spokesman for the Department of Justice testified

that he was “of the opinion that an outright ban of

indecent dial-a-porn messages would likely be found un-

constitutional by the courts.” ® President Reagan, in a

signing statement accompanying the legislation, also

noted that “current Supreme Court jurisprudence is un-

friendly to parts of this bill.” ™

67 Infinity Broadcasting Corp. of Pennsylvania, 3 FCC Red 930,

931 (1987) (footnotes omitted) (emphasis supplied), vacated in

part and remanded sub nom. Action for Children’s Television v.

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

68 1987 Hearings at 212 (testimony of FCC General Counsel) ;

see also Cable-Porn and Dial-a-Porn Control Act: Hearing on S.

1090 Before the Subcomm. on Criminal Law of the Senate Comm.

on the Judiciary, 99th Cong., Ist Sess. 16 (1985).

69 1987 Hearings at 246 (letter from FCC General Counsel) ;

see also id. at 255 (“any attempts to prohibit consenting adults

from receiving indecent but not obscene speech would be uncon-

stitutional) (letter from FCC General Counsel).

70 Jd. at 258 (letter from U.S. Attorney Brent D. Ward).

71 Remarks on Signing the Augustus F. Hawkins-Robert T.

Stafford Elementary and Secondary School Improvement Amend-

ments of 1988, 24 Weekly Comp. Pres. Doc. 541 (Apr. 28, 1988).

It is no answer to suggest, as the government tries to

do in its brief, that because “[a]dults remain free to

purchase recordings containing the identical messages at

book or record stores,” they are not denied access to

this material. If-a blanket ban is constitutional in one

medium, the government would no doubt argue that it

would be valid in other media as well. In any event, the

Court made clear long ago that free speech may not be

“abridged on the plea that it may be exercised in some

other place.” * Nor is it an answer to suggest that adult

access is not denied because messages conveyed through

the use of indecent speech can instead be conveyed

through the use of less offensive speech.** This Court

made clear in Cohen v. California that many messages

cannot in fact be conveyed in different words or forms

because “words are often chosen as much for their

emotive as their cognitive force.” It concluded that

“l'wle 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.” ‘®

72 Gov’t Br. at 34.

73 Schneider v. State, 308 U.S. 147, 163 (1939); see also Bolger,

463 U.S. at 69-70 n.18; Consolidated Edison Co. v. Public Serv.

Comm'n, 447 U.S. 530, 541 n.10 (1980). Although the Court in

Pacifica noted that “[a]dults who feel the need may purchase tapes

and records or go to theaters and nightclubs to hear these words.”

438 U.S. at 750 n.28, the Court was obviously referring to the

broadcast of prerecorded material. Large quantities of material

that may be deemed to be indecent but that may not be prerecorded

—such as original programming and news —are available only

through the free medium of broadcasting. That people may be

able to purchas. different “offensive” material elsewhere is there-

fore constitutionally irrelevant.

74 Gov’t Br. at 25 n.16 (quoting Pacifica, 438 U.S. at 743 n.18

(plurality opinion) ).

75 403 U.S. 15, 26 (1971).

76 Jd.: see also San Francisco Arts & Athletics, Inc. v. United

States Olympic Comm., 107 S. Ct. 2971, 2978 (1987). In Justice

In short, indecent speech cannot be treated as though

it were the equivalent of obscenity and banned entirely.

Ill. THE TERM “INDECENT” IN SECTION 223(b) IS

UNCONSTITUTIONALLY VAGUE AND OVER-

BROAD.

If this Court were to invalidate the blanket ban on

indecent telephone communications, it would not need to

reach the questions concerning the Commission’s under-

lving indecency enforcement standard. If this Court

does reach that issue, we urge that the Commission’s

indecency enforcement standard is_ unconstitutionally

vague and overbroad.

The Supreme Court has repeatedly held that laws

seeking to regulate speech on the basis of its content must

be clear and precise so that those subject to regulation

are given adequate notice, and so that the regulation does

not cause speakers to “ ‘steer far wider of the unlawful

zone.” ™? “{A] governmental purpose to control or pre-

vent activities constitutionally subject to state regulation

may not be achieved by means wh:ch sweep unnecessarily

broadly and thereby invade the area of protected free-

doms.” * Precision is especially important where, as

here, criminal sanctions may be imposed for violation of

the statute.”

Stevens’ plurality opinion in Pacifica, he stated “[a] requirement

that indecent language be avoided will have its primary effect on

the form, rather than the content, of serious communication. There

are few, if any, thoughts that cannot be expressed by the use of

less offensive language.” 438 U.S. at 743 n.18 (plurality opin-

ion). This would appear to be directly contrary to the Court’s

holding in Cohen. In any event, the current indecency ban goes

much further than a ban on the repetitive use of the “seven dirty

words.”

7 New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964)

(quoting Speiser v. Randall, 357 U.S. 513, 526 (1958)); see Hynes

v. Mayor of Oradell, 425 U.S. 610, 620 (1975); Grayned v. City

of Rockford, 408 U.S. 104, 108-09 (1972).

78 NAACP v. Alabawaa, 377 U.S. 288, 307 (1964).

7 Kolender v. Lawson, 461 U.S. 352, 357 (1983); Smith v.

Gequen, 415 U.S. 566, 574 (1974); Papachristou v. City of Jack-

So far as we are aware, none of the federal statutes

prohibiting indecent speech has ever contained any defini-

tion of indecency,’ and there is no commonly accepted

definition of that term. Federal court decisions before

Pacifica struggled with the interpretation of the term

“indecent,” but none of them articulated a separate def-

inition of indecency.*' Indeed, before Pacifica the Com-

mission agreed that “ ‘indecency’ in 18 U.S.C. § 1464 had

never been construed authoritatively by the federal

th...

Like Congress and the courts, the Commission has had

substantial difficulty defining indecency. Before 1975, in

applying Section 1464, the Commission articulated a

definition of indecency as material that “is patently of-

fensive by contemporary community standards and ut-

terly without redeeming social value,” “ a definition quite

similar to the definition of obscenity except that appeal

to the prurient interest was not required. In the 1975

Pacifica case, the Commission articulated a new, and

seemingly broader, definition of indecency as “language

that describes, in terms patently offensive as measured

by contemporary community standards for the broadcast

sonville, 405 U.S. 156, 162 (1972). We note that the Court in

Pacifica expressly declined to “consider any question relating to the

possible application of § 1464 as a criminal statute.” 438 U.S. at

739 n.15, .ee also id. at 747 n.25 (plurality opinion) ; id. at 750.

80 See, e.g., 18 U.S.C. § 1464; 47 U.S.C. §223(b). The term

“indecent” in other federal statutes has been construed to be the

same as “obseere.” See Hamling v. United States, 418 U.S. 87, 110-

16 (1974); United States v. 12 200-ft. Reels of Super 8mm Film,

413 U.S. 123, 130 n.7 (1973); Roth v. United States, 354 U.S. 476,

491 (1957).

81 See, e.g., United States v. Simpson, 561 F.2d 23 (7th Cir.

1977); Tallman v. United States, 465 F.2d 282 (7th Cir. 1972);

Gagliardo v. United States, 366 F.2d 720, 725-26 (9th Cir. 1966).

82 Brief for Petitioner at 22, FCC v. Pacifica Found., 438 U.S.

726 (1978); see Citizens Complaint Against Pacifica Found., 56

F.C.C.2d 94, 97 (1975).

83 Fastern Educ. Radio (WUHY-FM), 24 F.C.C.2d 408, 413

(1970).

medium, sexual or excretory activities and organs... .”’ *

The existence of “social value’ was no longer sufficient

to render the material not indecent. On review, the court

of appeals found that definition to be unconstitutiorally

vague and overbroad.”

The Supreme Court did not reach this question or

approve the broad standard articulated by the Commis-

sion, but only its application to the particular broadcast

—a George Carlin monologue involving repeated use of

the “seven dirty words.” * Justice Stevens noted for the

majority that the “‘Court . . . reviews judgments, not

statements in opinions.’’’*’ He went on to explain that

in the Commission’s opinion “questions concerning pos-

sible action in other contexts were expressly reserved for

the future,” and he declined to consider the broader

question of the constitutionality of the standard.* In his

plurality opinion, he stated that the Court’s “review is

limited to the question whether the Commission has the

authority to proscribe this particular broadcast.” ” And

Justice Powell agreed in a separate concurring opinion

that the Court has appropriately refused to consider the

overbreadth challenge because “the Commission’s order

was limited to the facts of this case.” *' In the Commis-

84 Pacifica, 56 F.C.C.2d at 98.

85 Pacifica, 556 F.2d 9 (D.C. Cir. 1977).

86 Pacifica, 438 U.S. at 742-43 (plurality opinion).

87 Jd. at 734 (quoting Black v. Cutter Laboratories, 351 U.S. 292,

297 (1956) ).

88 Jd.

89 Jd. at 742-43 (plurality opinien). The Commission urged that

the Court need not pass on the constitutionality of its generic

definition because the Commission had addressed only the limited

question of whether the particular broadcast was indecent and had

not passed on the question of whether other material cited by the

broadcasters in the case would be considered to be indecent. See

Brief for Petitioner at 41-48, FCC v. Pacifica Found., 438 U.S.

726 (1978).

Pacifica, 438 U.S. at 742 (plurality opinion).

*1 Jd. at 761 n.4 (Powell, J., concurring); see also id. at 755-56

(Powell, J., concurring).

sion rulings that followed over the next decade, the

agency adopted a narrow construction of its 1975 stand-

ard, limiting it to material similar to the Carlin mono-

logue.”

In sharp contrast to this limited approach, the Com-

mission in 1987 determined to regulate indecency more

broadly.* While purporting to adhere to the “patently

offensive” definition articulated in the Commission’s 1975

Pacifica decision, it effectively articulated a new stand-

ard, and made clear that it will no longer confine

indecency to the repetitive use of the “seven dirty words.”

The Commission also warned broadcasters generally that

they must interpret and apply its broad new standard or

face the possibility of sanctions, including the denial of

license renewal.”

The Commission has made clear that it intends to

apply this generic definition to telephone indecency as

well. On June 1, 1987, barely one month after articu-

lating the definition in the broadcasting area, the FCC’s

General Counsel reiterated that the Commission would

apply the broadeast standard in the telephone context.

She stated that while the “definition of indecency was

developed in the broadcast context,” * the Commission

% See, e.g., Pacifica Found., 95 F.C.C.2d 750 (1983) (finding

morning announcer’s use of several of “seven dirty words” not to

be indecent; WGBH Educ. Found., 69 F.C.C.2d 1250 (1978) (finding

not to be indecent television broadcasts dealing with “scatology, im-

modesty, vulgarity, nudity, profanity, and sacrilege”); see also

Decency in Broadcasting, Inc., 94 F.C.C.2d 1162 (1983).

93% nfinity Broadcasting Corp. of Pennsylvania, 3 FCC Red 930

(1987).

*% The failure to comply with Commission requirements always

presents the risk of loss of license and a ban on all further publica-

tion, a penalty which cannot be imposed on any other publisher.

% 1987 Hearings at 211 (testimony of FCC General Counsel) ;

see also Enforcement of Prohibitions Against the Use of Common

Carriers for the Transmission of Obscene Materials, 2 FCC Red

3672, 3673-74 (1987) (indicating that broadcast definition would

be applied).

has “been using this definition in determining which

dial-it messages appear to be indecent under current

Section 223.”

Congress in enacting the Bliley-Helms Amendment also

apparently contemplated use of this expanded indecency

standard. Senator Helms, sponsor of the 1988 amend-

ment in the Senate, made clear that the Commission’s

new interpretation of the broadcast indecency standard

was to continue to govern,” and subsequent to the en-

actment of the amendment, the Commission has continued

to apply its broadcast definition in the telephone context.”

On its face and stripped of the earlier construction

which limited the standard to repetitive use of the “seven

dirty words,” the definition of indecency is inherently

unclear. The Commission’s various opinions in this mat-

ter have only added to the confusion. Purporting to pro-

vide guidance, the Commission has stated that material

must not be “ ‘vulgar’ or ‘shocking,’” that “the manner

in which the language or depictions are portrayed” is

important,” that “material [that is] isolated or fleeting”’

may be acceptable,’ and that indecency “requires careful

consideration of context.”

The problem of vagueness has been seriously com-

pounded by the Commission’s specific statements that two

% 1987 Hearings at 212 (testimony of FCC General Counsel).

°7 133 Cong. Rec. $16,794 (daily ed. Dec. 1, 1987) (remarks of

Sen. Helms).

%8 Citing its 1987 broadcast decisions, the Commission has ex-

plained that it “believe[s] that the legislative history reveals that

Congress intended the term ‘indecent’ to be defined as that term

was defined in an analogous context in 18 U.S.C. § 1464.” Inter-

cambio, Inc., 64 Rad. Reg. 2d (P&F) 1663, 1678 (1988) (footnote

omitted); accord Audio Enterprises, Inc., 64 Rad. Reg. 2d (P&F)

1681, 1695 (1988).

% Infinity Broadcasting Corp. of Pennsylvania, 3 FCC Red at

932 (footnote omitted).

100 Jd. (footnote omitted).

101 Jd. (footnote omitted).

prongs of the Miller standard for obscenity have been

made inapplicable.’’? Thus, the material need not appeal

to the prurient interest and, most important, it may still

be deemed indecent even though it has serious literary,

artistic, political, or scientific value. The Commission’s

inability to define the role of serious merit has been par-

ticularly troublesome. The Commission has stated that

serious merit “is simply one of many variables, and it

would give this particular variable undue importance if

we were to single it out for greater weight or attention

than we give other variables.” The significance of

“serious merit” is not further explained, nor are parties

informed of what the other variables are. The Commis-

sion’s interpretation is all the more confusing because it

casts doubt on the very materials that the Commission

once approved and on the rulings that broadcasters have

been relying on for guidance for years.’

Indeed, the Commission appears to have concluded that

it is simply impossible to provide meaningful guidance

as to this shifting and elusive standard. The Commis-

sion stated that the term “patently offensive” must be

‘construled| ... with reference to specific facts,” ’ that

“its meaning can only be given greater specificity on a

case-by-case basis,” ** and that “we cannot list any par-

ticular language or material that will always be found

indecent.” *** Yet, the Commission has directed those

102 See 1987 Hearings at 211 (testimony of FCC General Counsel).

As the FCC’s General Counsel testified in the course of the legis-

lative history:

{Ijndecency is essentially sexually explicit speech that need

satisfy only the second prong of the three prong obscenity test;

that is, it need not appeal to the prurient interest nor lack

social, artistic, political or scientific value.

103 Infinity Broadcasting Corp. of Pennsylvania, 3 FCC Red at 932.

104 See cases cited in note 92 supra.

105 Infinity Broadcasting Corp. of Pennsylvania, 3 FCC Red at

932.

106 Jd.

107 Jd. at 937 n.28.

subject to its regulation to interpret and apply the new

standard:

They must apply a generic definition with reference

to the guidance provided by existing case law on the

matter. [They! may not reasonably expect to relieve

themselves of this legal obligation by demanding that

we exercise their editorial judgment for them.'’*

The Commission has acknowledged that the task con-

fronting broadcasters in particular is not an “easy one”

given the lack of an accepted definition or further guid-

ance from the Commission.’” It is readily apparent, as

the District of Columbia Circuit found in ACT, that

“vagueness is inherent” in this definition of indecency.'”

The Commission has thus failed to provide adequate

guidance as to the meaning of indecency and has ren-

dered “principled review” by the courts impossible.'™

Despite the government’s suggestion that the burden of

this vagueness will fall on pornography,’ the burden in

fact will fall heavily on protected speech.'*® The Com-

mission has stated specifically that the indecency ban

applies to the broadcast of news programs.’ And the

108 Jd. at 932.

109 Jd. at 933.

110 852 F.2d at 1344. That court held (we believe incorrectly)

that this Court’s decision in Pacifica prevented it from ruling that

tue Commission’s standard is unconstitutionally vague, and “wel-

come[d] correction” from “Higher Authority.” Jd. at 1339.

111 Compare Meredith Corp. v. FCC, 809 F.2d 863, 871 n.9 (D.C.

Cir. 1987) (“[WJe note our reluctance as a prudential matter to

delve into [Commission] determinations that do not readily lend

themselves to principled review’’.).

112 See Gov't Br. at 33.

113 This is in direct contrast to the Commission's earlier limited

application of the standard to the repetitive use of the seven dirty

words, which this Court found would deter “only the broadcasting

of patently offensive references to excretory and sexual organs and

activities.” Pacifica, 438 U.S. at 743 (plurality opinion) (footnote

omitted).

114 Infinity Broadcasting Corp. of Pennsylvania, 3 FCC Red at

937 n.31.

Commission’s indecency cases have involved a range of

material, including social satire,'’® political advertising,'’®

informational programs,'" classic works of literature,’**

modern drama addressing social issues,''? and motion pic-

tures.'*” To be sure, not all of these cases resulted in a

ruling that the material was indecent within the mean-

ing of Section 1464. But even in those cases in which

the Commission ruled that the material was not indecent,

its rulings had a particularly grudging quality and were

unlikely to give much clarity or comfort to those attempt-

ing to construe the definition in similar situations.

The Commission’s finding that the broadeast of ex-

cerpts from Ulysses would not be indecent exemplifies

the approach. The Commission stated only that “we would

not expect that the Commission would find such refer-

ences, dispersed as they would have been throughout the

three-hour reading of this work of literature, to be pat-

ently offensive.” '*' It affords amici and others little prac-

115 See, e.g., Infinity Broadcasting Corp. of Pennsylvania, 2 FCC

Red 2705 (Howard Stern morning radio program), reconsideration

and clarification granted in part, denied in part, 3 FCC Red 930

(1987), vacated in part and remanded sub nom. Action for Chil-

dren's Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988).

116 See, e.g., Letter to Hon. John E. Bourne, Jr. from Chief, Mass

Media Bureau (Apr. 7, 1988) (political advertisement containing

the word “clocksucker” in reference to the local mayor’s desire to

purchase a clock for City Hall).

117 See, e.g., Letter to Mr. and Mrs. Roland Orle from Chief, Mass

Media Bureau (Apr. 7, 1988) (documentary on sex education).

118 See, e.g., Letter to Thomas Byrne from Chief, Mass Media

Bureau (Apr. 7, 1988) (Ulysses).

119 See, e.g., Pacifica Found., Inc., 2 FCC Red 2698 (play dealing

with AIDS and homosexuality), reconsideration and clarification

granted in part, denied in part sub nom. Infinity Broadcasting Cerp.

of Pennsylvania, 3 FCC Red 930 (1987), vacated in part and re-

manded sub nom. Action for Children’s Television v. FCC, 852 F.2d

1332 (D.C. Cir. 1988).

120 See, e.g., Kansas City Television, Ltd., Order, FCC 88-274

(released Aug. 5, 1988) (film “Private Lessons”).

121 Letter to Thomas Byrne at 2 n.1. One Commissioner stated

that “ ‘Ulysses’ is probably indecent” and that he is “amazed it

made it as a classic.” Wall St. J., May 26, 1987, at 35, col. 1.

tical guidance to know that they apparently need not

fear sanctions if they present a three-hour reading of

Ulysses, or indeed that cther established “works of liter-

ature” may be read aloud if the sexual references are

dispersed over a three-hour period. It is no answer to

suggest that careful study of the Commission’s decisions

will yield answers to these difficult questions of inter-

pretation. They do not, and many broadcasters are sim-

ply unwilling or unable to employ lawyers routinely to

attempt to advise them as to the appropriate course of

conduct. Thus, despite the government’s consistent ef-

forts in its brief to portray the statute as protecting

children against pornography, its intent and actual sweep

are far broader, a problem compounded by the vague-

ness of the Commission’s definition.

The Second Circuit, like the district court here, has

held the Commission’s standard unconstitutional.’ Those

rulings were clearly correct. This Court has consistently

struck down on vagueness grounds statutes which have

sought to regulate indecency, without clearly defining

that term. Thus, for example, in Bantam Books, Inc. v.

Sullivan, the Court held unconstitutional a state law

creating a commission that was “to educate the public

concerning [materials] containing obscene, indecent or

impure language, or manifestly tending to the corrup-

tion of the youth... .”'* Finding that the law was

unconstitutionally vague and that the commission had

not done anything to make it more precise, the Court

explained that “|t]he distributor is left to speculate

whether the Commission considers his publication obscene

or simply harmful to juvenile morality.” '* Similarly,

in Cohen v. California, the Court invalidated a conviction

imposed for wearing a jacket bearing a four-letter

word.'** The Court concluded that the statute did not

put one “on notice that certain kinds of otherwise per-

122 Carlin Comm ications, Inc., 837 F.2d at 558-60.

123 372 U.S. at 59.

124 Jd. at 71.

125 403 U.S. 15 (1971).

missible speech or conduct would nevertheless . . . not be

tolerated in certain places.” '** In Hustler Magazine v.

Falwell, the Court held that a parody which used sexual

innuendo was protected speech, noting that a standard

of “‘{o]utrageousness’ in the area of political and social

discourse has an inherent subjectiveness about it which

would allow a jury to impose liability on the basis of the

jurors’ tastes or views, or perhaps on the basis of their

dislike of a particular expression.” The legislation

here is similarly unconstitutional because it incorporates

an unconstitutionally vague and overbroad definition.

CONCLUSION

For the foregoing reasons, the decision of the United

States District Court for the Central District of Califor-

nia invalidating the indecency ban in Section 223(b)

should be affirmed.

Respectfully submitted,

Of Counsel: TiImoTHuy B. DYK

SAM ANTAR Counsel of Record

MARIAN E. LINDBERG TERESA D. BAER

CAPITAL Cit1Es/ABC, INC. WILMER, CUTLER & PICKERING

1330 Avenue of the Americas 2445 M Street, N.W.

New York, New York 10019 Washington, D.C. 20037-1420

O . (202) 663-6000

f Counsel: as .

Howarp F. JABCKEL Counsel for Amici and Capital

CBS INc Cities/ABC, Inc. and CBS Ine.

51 West 52 Street

New York, New York 10019

126 Jd. at 19; see also Rosenfeld v. New Jersey, 408 U.S. 901

(1972) (summarily vacating and remanding conviction under dis-

orderly persons statute prohiviting use of “offensive,” “profane,” or

“indecent” language in a public place); Brown v. Oklahoma, 408

U.S. 914 (1972) (summarily vacating and remanding conviction

under statute barring “any obscene or lascivious language or word

in any public place or in the presence of females”); Lewis v. City

of New Orleans, 408 U.S. 913 (1972) (summarily vacating and

remanding conviction under breach of peace statute prohibiting

wantonly cursing, reviling, or using “obscene or opprobrious lan-

guage” towards an on-duty police officer).

127 108 S. Ct. at 882.

HENRY GELLER

DONNA LAMPERT

1776 K Street, N.W.

Suite 900

Washington, D.C. 20006

Counsel for Action for

Children’s Television

JOHN A. POWELL

C. EDWIN BAKER

AMERICAN CIVIL LIRERTIES

UNION FOUNDATION

132 West 43rd Street

New York, New York 10036

Counsel for American Civil

Liberties Union

STEVEN A. LERMAN

DENNIS P. CORBETT

LAURA B. HUMPHRIES

LEVENTHAL, SENTER

& LERMAN

2000 K Street, N.W.

Suite 600

Washington, D.C. 20006

Counsel for Infinity

Broadcasting Corporation

Fritz E. ATTAWAY

1600 I Street, N.W.

Washington, D.C. 20006

Counsel for Motion Picture

Association of America, Inc.

HENRY L. BAUMANN

STEVEN A. BOOKSHESTER

1771 N Street, N.W.

Washington, D.C. 20036

Counsel for National

Association of Broadcasters

HOWARD MONDERER

MOLLY PAUKER

1331 Pennsylvania Ave., N.W.

Suite 700 South

Washington, D.C. 20004

Counsel for National

Broadcasting Company, Inc.

Of Counsel:

SUSAN M. Liss

JAN G. LEVINE

PEOPLE FOR THE

AMERICAN WAY

2000 M Street, N.W.

Washington, D.C. 20036

Of Counsel:

Davip D. HILLER

CHARLES J. SENNETT

TRIBUNE COMPANY

435 North Michigan Avenue

Chicago, Illinois 60611

March 27, 1989

Lots J. SCHIFFER

KAREN CHRISTENSEN

2025 M Street, N.W.

Washington, D.C. 20036

Counsel for National

Public Radio

ANDREW JAY SCHWARTZMAN

MepDIA ACCESS PROJECT

2000 M Street, N.W.

Washington, D.C. 20036

Counsel for People for the

American Way

PAULA A. JAMESON

Nancy H. HENDRY

1320 Braddock Place

Alexandria, Virginia 22314

Counsel for Public

Broadcasting Service

J. LAURENT SCHARFF

JAMES M. SMITH

REED SMITH SHAW & McCLay

1200 18th Street, N.W.

Washington, D.C. 20036

Counsel for Radio-Television

News Directors Association

JANE E. KIRTLEY

800 18th Street, N.W.

Washington, D.C. 20006

Counsel for The Reporters

Committee for Freedom

of the Press

Bruce W. SANFORD

R. B. QUINN

BAKER & HOSTETLER

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

1111 19th Street, N.W.

Washington, D.C. 20036

Counsel for Tribune

Broadcasting Company

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