Amicus Curiae Brief — Denver Area Ed. Telecommunications Consortium, Inc. v. FCC

Supreme Court brief1996

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Text

ee foe ee

No. a

- Ne. 98-227 ji

(Consolidated) yk

in The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

Denver Area Educatione! Communications

Consortium, inc., et al.,

Petitioners,

; Federal Communications Commission

; end United States of America,

end Respondents,

: Alliance For Community Media, et al.,

cA * Petitioners,

Federel Communications Commission

- and United States of America,

pee

« - ON WRIT OF CERTIORARI TO THE UNITED STATES

~ COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

"AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS

| W. Peters Paul J. McGeady

“476 Riverside Drive Attomey for Amicus Morality in Media, Inc.

New York, N.Y. 10115 475 Riverside Drive

__» Of Counsel New York, N.Y. 10115

tee (212) 870-3232

cee TR ae (Counsel of Record)

TABLE OF CONTENTS

PAGE

pI ee eee a ee ii

PC +. cb 6 bord eee keeeceneecune 1

SS vi nGiaweceeenteneheaee 2

ARGUMENT

1. Section 10 does not convert a cable operator's

decision to prohibit indecent programming on

privately owned channels into ‘state action’ .. 4

|. Cable TV indecency which intrudes into the home,

assaulting unwilling adults and providing easy

access to children, is a form of ‘Nuisance Speech’

which Congress can prohibit ............ 13

A. “Nuisance Speech" is a category of

speech outside First Amendment protection . 13

B. Cable TV indecency is just as much a

“nuisance” as broadcast indecency and can be

prohibited by Congress ................ 18

C. The summary affirmance in Wilkinson v.

Jones does not prevent this Court from upholding

the regulation of indecency at issue here.... 19

lil. Applying the indecency standard to cable TV access

channels will not reduce adults to viewing only what

CT eT ee Ce ee eee 21

I\V. The indecency standard is neither vague

I a cd a Se wa 26

RENE ee ee ee ee 29

TABLE OF AUTHORITIES CITED

CASES: PAGE

Action For Children's Television v. FCC,

932 F.2d 1504 (D.C. Cir. 1991),

cant. Gam... 143 GAD. THE CURED 0 oe ce ccteces 2,22

Action for Children’s Television v. FCC,

O52 P.28 35S GAL. Gil. FRED ccc case eecees 28

Alliance For Community Media v. FCC,

56 P.36 065 DL. Cie. CORED ccc cr esssccten 2

Barnes v. Glen Theatre,

bP Se f errr s er 24

Bethel School District No. 403 v. Fraser,

SOUS, GS CGD ci + ioe ieieanees 16,17,23,24

Bread v. Alexandria,

PA US. Ga CS) on ce wsvac scanners 15,28

Brockett v. Spokane Arcades,

G73 U.S. GG CHRD cc nc ed suevessunaune 2

Carlin Com'n, Inc. v. Southern Bell,

802 F.2d 1352 (1 ith Cir. 1988) ............. 8

Chaplinsky v. New Hampshire,

ee Se of) eee 14,16

City of Dallas v. Stanglin,

169 C.0e. EOS. GG 00s weceucevaueee 17

City of Renton v. Playtime Theatres, Inc.,

— pee R F Fer ee 11

Close v. Lederele,

424 F.2d 988 (Ist Cir. 1970),

cert den., 400 U.S. 903 (1970).............. 15

Community Television of Utah, Inc. v. Wilkinson,

611 F.Supp. 1099 (D. Utah 1985) .......... 9,19

Edelman vy. Jordan,

463 U.8. Gt CIGD ov ccc cute seeeaee 20

CASES--CONTINUED PAGE

FCC v. Pacifica Foundation,

438 U.S. 726 (1978) . 2,4,5,6,13,14,17,23,24,25 26.28

Fort Wayne Books, Inc. v. Indiana.

489 U.S. 46(1989) ........ 2

Frisby v. Schultz,

487 U.S. 474 (1988) |. a | 25

Ginsberg v. New York,

390 U.S. 629 (1968) . an ste te neee. B

Hess v. Indiana,

414 U.S. 105 (1978) ..... 15

Hicks v. Miranda,

CE ee 20

Hustler Magazine v. Falwell.

56 L.W. 4180 (US. 1988) _ 6

Jacobellis v. Ohio,

378 U.S. 184 (1964)... 29

Jones v. Wilkinson,

800 F.2d 989 (10th Cir. 1986) 19

Kaplan v. California,

413 U.S. 115 (1973) |. 2.27

Kovacs v. Cooper,

336 U.S. 77 (1949) , 15.19

Mandel v. Bradley,

432 U.S. 173 (1977) __... 20.21

Manual Enterprises, Inc. v. Day,

370 U.S. 478 1982) . 23.27

Miller v. California,

413 U.S. 15 (1973) . 27.28

New York v. Ferber.

458 U.S. 747 (1982) . 2

Paris Adult Theatre I v. Slaton,

413 U.S. 49(1973) _. 2.28.29

CASES-—CONTINUED PAGE

People v. Starview Drive-in theatre,

427 N.E.2d 201 (Ill. App. Ct. 1981),

app. dism'd, 457 U.S. 113 (1982)... . 2... 6... 25

Playboy Enterprises v. Public Service Comm of P.R..,

698 F.Supp. 401 (D.P.R. 1988) ............. 12

Redrup v. New York,

POP «ssdesecenesedadwneen 15

Rosenfeld v. New Jersey,

SG SEGUE coccccecesces ve ewens 16

Roth v. United States,

DP CD vscencnnnsoeet een wad 23

Sable Communications of Cal., Inc. v. FCC,

ee ED 2 dwerbei wb ees eee 2.25

Tallman v. United States,

Se ee CG, SE hk vce ce wew se wees 17

Turner Broadcasting System v. FCC,

8 Ff OR ee ee eee 5

United States v. O'Brien,

ee, Sn. cod ewe h wees hee h ade 11

Washington v. Confederated Bands and Tribes.

es. GED gcavn ced aan ned exweels 20

Wilkinson v. Jones,

Cee SD gi cee ckccune ces 19,20

STATUTES:

Cable Communications Policy Act of 1984 .. . . 6,7,8,9,10,22

Cable T.V. Consumer Protection and Competition Act of

Pere 3,4,5,8,9,10,18,22

a a eo

A TS A ee Ame a

STATUTES--CONTINUED: PAGE

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SPC ccctetecvetiacescaseiaueaes 7

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MISCELLANEOUS:

Cong. Rec. $991 1-9913 (7/26/88) ..............44..- 22

eos BO Pee 7

138 Cong. Rec. $646 (1992) ...... 2... cee eee, 12,22

138 Cong. Rec. $647-648 (1992) ............... 1,12

sj. SPT TEEPE ee 12,22

ae Gate, Gee. GCG ow wee ccceceesees 8,22

RPT eee TT eT ee Te TT TT 13

Am. Jur. Proof of Facts, Vol.8 (1960) .............. 13

FR 8 CPP errr er eee 7

H.R. Rep., No. 98-934, 98th Cong., 2d Sess. (1984)... . 6,7

vi | No. 95-124

| . No. 95-227

MISCELLANEOUS--CONTINUED. PAGE (Consolidated)

Hill-Link Minority Report of The Presidential .

Commission on Obscenity and Pornography .... . . 2 | in The

SUPREME COUAT OF THE UNITED STATES

ER ee Pan AAR 26

October Term, 1995

Free Speech in the United States, by Chafee, Zechariah ... 14

a ee 12

Denver Area Educational Communications

New York Post (articles) ......... ey rae wee 11,13 Consortium, Inc., et al..

:; Petitioners,

I a oe 11,18 ,

Federal Communications Commission

and United States of America,

Respondents,

and

Alliance For Community Media, et al.,

Petitioners,

Vv.

Federal Communications Commission

and United States of America,

Respondents.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

BRIEF OF MORALITY IN MEDIA, INC. AS AMICUS

CURIAE IN SUPPORT OF THE RESPONDENTS

INTEREST OF AMICUS

Morality in Media, inc. ("Amicus"), as Amicus

Curiae, files this brief in support of the Respondents in this

case, which is before this honorable Court on the merits

under the provisions of Rule 37(3)(a). The written consents

of the petitioners and respondents have been requested and

all parties have consented thereto in writing. Copies of

these consents are being filed concurrently with this brief.

Morality in Media has a special interest in this case

because it was the organization which suggested to

Congress the need to restore to cable operators editorial

control over “indecent” programming on leased and public

access cable TV channels.’ Amicus’ proposal sprang from

its experience in combatting indecent programming on the

leased access channel in New York City, and from

responding to complaints from other parts of the nation

with similar problems on public and leased access channels.

Morality in Media is a New York not-for-profit,

interfaith, charitable corporation, organized in 1968 for the

purpose of combatting the distribution of obscene material

in the United States and upholding decency standards in

the media. Now national in scope, this organization has

affiliates and chapters in various states, and its Board of

Directors and Advisory Board are composed of prominent

businessmen, clergy and civic leaders.

The Founder and President of Morality in Media

(until his death in 1985) was Reverend Morton A. Hill, S.J.

in 1968, Father Hill was appointed to the President's

Commission on Obscenity and Pornography. He, along

Cf., 138 Cong. Rec. $647-648 (daily ed. Jan. 30, 1992) (letter

of Robert Peters of Morality in Media).

with Doctor Winfrey C. Link, produced the “Hill-Link

Minority Report of the Presidential Commission on

Obscenity and Pornography,” which was cited by this

honorable Court in Kaplan v. California, 413 U.S. 115, 120

note 4 (1973) and in Paris Adult Theatre / v. Slaton, 413

U.S. 49 at 58, notes 7 and 8 (1973).

More recently Morality in Media participated as

Amicus in FCC v. Pacifica Foundation, 438 U.S. 726

(1978): New York v. Ferber, 458 U.S. 747 (1982);

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985);

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989);

Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115

(1989): Action for Children’s Television v. FCC, 932 F.2d

1504 (D.C. Cir. 1991), cert. denied, 112 S.Ct. 1282

(1992): and in the case below, Alliance for Community

Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995).

Morality in Media is filing a brief in this matter in

support of respondents because it believes that the problem

of obscenity or indecency on cable TV access channels is

growing and that the decision in this case will have a

lasting effect on government's ability to effectively address

the evil of cable obscenity and indecency. It is the belief of

MIM, based on the briefs below, that its brief contains

relevant matter that may not be brought to the attention of

the Court by the parties, to wit that indecency on cable TV

access channels is "nuisance speech” which is unprotected

by the First Amendment and which can be prohibited to

protect adults in the privacy of their homes and children.

SUMMARY OF ARGUMENT

in 1984, Congress required larger cable systems to

provide leased access channels and authorized loca!

franchise authorities to require public access channels on all

systems. In addition, Congress prohibited cable operators

from exercising “editorial control” over these channels, but

to prevent these channels frorn becoming conduits for porn

and other indecent material, Congress also empowered

franchising authorities to prohibit or restrict indecency.

Unfortunately, Congress’ decision to prevent cable

operators from exercising “editorial control” resulted in

many access channels becoming conduits for porn and

other indecent programming. In Subsections 10(a) & (c)

of the Cable TV Consumer Protection and Competition Act

of 1992, Congress removed the barriers preventing

operators from. exercising “editorial control" over

indecency. In doing so, it did not engage ir orohibited

"state action.”

Recognizing that some operators may carry indecent

or obscene material, Subsection 10(b) requires that

indecent programs be placed on restricted access channels,

and Subsection (d) removes operator immunity for carriage

of obscene material. The purpose of these Subsections

was to protect, as much as Congress thought possible,

children and the American people against indecent or

obscene programming--not to coerce or "significantly

encourage” cable companies to “ban” indecency.

In 1984, Congress also preempted states and local

authorities from imposing “requirements” regarding the

“content of cable services.” What was then preempted,

Cannot again be preempted by the Act at issue in this case.

This Court should not rush to conclude that privately

owned cable TV channels have been designated “public

forums,” particularly when these “forums” intrude into the

home and are easily accessible to children.

Indecency on cable TV leased access channels,

which intrudes uninvitedly into the home, assaulting

unwilling adults and providing easy access to children, is a

form of "nuisance speech" which, like broadcast indecency,

is unprotected by the First Amendment and can be

prohibited. Section 10(b) is, therefore, constitutional.

Applying the indecency standard to cable TV access

channels will not reduce adults to viewing only that which

is fit for children, since adults in the privacy of their homes

also have a right to not be assaulted by indecent

programming, and the “indecency” standard is determined

not by what is “harmful to minors” but rather by what is

“patently offensive,” when applying community standards.

Finally, the “indecency” standard is not vague or

overbroad, as this Court held in FCC v. Pacifica. To be

indecent, programming must be "patently offensive,” when

applying community standards. "Time of day” and “serious

value” are also “variables” to we weighed in determining

whether programming is "indecent."

ARGUMENT

SECTION 10 DOES NOT CONVERT A CABLE

OPERATOR'S DECISION TO PROHIBIT INDECENT

PROGRAMMING ON PRIVATELY OWNED CHANNELS

INTO ‘STATE ACTION’

in January 1992, Senator Helms introduced an

amendment to the Cable TV Consumer Protection and

Competition Act of 1992 ("Cable Act of 1992"), which

removed the legal barrier to the exercise by cable operators

of editorial control over “indecent” material on cable TV

leased access channels.? in addition, the Helms’

. Section 10(a) of Cable Act of 1992.

amendment required cable operators to put indecent

programming, they choose to carry, on a blocked channel’.

Other amendments were introduced (1) to allow operators

to exercise editorial control over indecency on public access

channels* and (2) to do away with operator immunity from

liability for carrying obscenity on ali access channels.”

Petitioners in case No. 95-227 (i.e., Alliance for

Community Media, Alliance for Communications Democracy

and People for the American Way, hereinafter "Petitioners

AAP") argue that this statutory scheme (i.e., Section 10 of

the Cable Act of 1992) on its face "disadvantages certain

disfavored speech based solely on the speech’s content.””

The concern in Turner Broadcasting System v.

FCC,’ however, was “laws that by their terms distinguish

favored speech from disfavored speech on the basis of

ideas or views.” In FCC v. Pacifica Foundation,® this Court

Stated that indecency is at the “periphery of First

Amendment concern" and that restrictions on indecent

speech have their "primary effect on the form, rather than

the content, of serious communication."

Clearly, Congress can prohibit indecent speech in

Section 10(b) of the Cable Act of 1992.

Section 10(c) of the Cable Act of 1992.

Section 10(d) of the Cable Act of 1992.

Pet. AAP Br. at 18.

62 LW 4647, 4652 (US. 1994)

438 U.S. 726, at 743, including note 18 (1978).

some contexts,’ and Amicus contends that it is also clear

from the legislative history and provisions of the Cable

Communications Policy Act of 1984 (hereinafter "Cable Act

of 1984"), that when Congress prohibited cable operators

from exercising “editorial control” over access channels, it

also empowered franchising authorities to prohibit or

restrict cable services which are indecent.

Subsection 612(h)'° of the Cable Act of 1984,

pertaining to “leased access" channels, specifies that:

(h) Any cable service offered pursuant to this

section shall not be provided, or shail be provided

subject to conditions, if such cable service in the

judgment of the franchising authority is obscene, or

is in conflict with community standards in that it

sind : : byt

Constitution. [Emphasis added]

Of Subsection 612(h), the Report of the House

Committee on Energy and Commerce'’ stated:

"Subsection 612(h) addresses an issue of particular

concern to the Committee--the potential availability

of obscene or otherwise Constitutionally

unprotected programming over cable systems."

> See, e.g., FCC v. Pacifia Foundation, 438 U.S. 726, 732 (1978)

(affirming FCC order that the “Filthy words” monologue at issue “as

broadcast was indecent and prohibited by 18 U.S.C. 1464"); Hustler

Magazine v. Falwell, 56 LW 4180, 4182 (1988) (citing Pacifica for the

proposition that regulation of indecent expression is an "exception to the

general First Amendment principles”).

'9 47 US.C. 532i(h).

'’ HER. Rep., No. 98-934, 98th Cong., 2d Sess., p. 55 (1984)

(hereinafter "House Report”).

The similar phrase “otherwise unprotected by the

Constitution” is also found in Subsection 624(d)(1)'? of

the Cable Act of 1984, which applies to programming on

both public and leased access channels, and which permits

franchising authorities to specify, in a franchise that:

"{(Clertain cable services shall not be provided or

shall be provided subject to conditions, if such cable

services are obscene or otherwise unprotected by

the Constitution."

Amicus would contend that Subsection 624(d)(1)

was intended to allow franchising authorities to prohibit or

restrict "indecent" cable TV programming--to the extent

this Court permits it. As noted in the House Report:

This provision would also permit changing

constitutional interpretations to be incorporated into

the standard set forth in 624(d)(1), should those

a ge negeragpng ar memony ‘ditional ‘ard | ind

constitutionally valid as applied to cable...The

Committee recognizes with respect to cable the

need to provide for the restriction, within

constitutionally permissible grounds, on _ the

availability of programming, which might not be

obscene, but is nonetheless indecent, if children are

going to be adequately protected from exposure to

such material.’ [Emphasis supplied]

Neither children nor society, however, were

'2 47 U.S.C. 544(d)(1).

"3 House Report, at 69-70; see also 130 Cong. Rec. $14288-

14289 (daily ed. Oct. 11, 1984) (statement of Sen. Goldwater that

phrase “other similar laws” encompassed indecency.)

"adequately protected” by the Cable Act of 1984 from

obscene or indecent programming on access channels, and

Congress should not now be prevented from providing

much needed protection, because in 1984 it mistakenly

believed that it had adequately addressed the problem.“

Furthermore, the First Amendment was intended to

protect against incursions by the Government, and not by

private persons, and a cable operator’s right to not transmit

"indecent" speech should not depend on whether or not the

state or Federal government has, in the past, forced it to

provide access for such speech.'°

Petitioners AAP also argue that since some states

and franchising authorities had denied cable operators

'* Cf#., Statement of Senator Wirth in support of Subsection 10\c)

of the Cable Act of 1992. 138 Cong. Rec. $650 (daily ed. Jan. 30,

1992). Senator Wirth, who authored the public access channel

provisions of the Cable Act of 1984, stated that the purpose of these

channels was to "make sure” that cable operators could not “shut out

all kinds of public programming.” He went on to say, however:

But, clearly, that has now been abused. Any of us who have

been to New York City recently and looked on the television

set..wil! see this is true. Time-Warner has no choice; | mean,

they have to provide this kind of access for what essentially

has nothing to do with any kind of public interest whatsoever.

it is the most prurient, in fact, in many ways, grossly illegal

access one could imagine...So | hope that all of us will support

the Fowler amendment and give a very clear signal to the cable

companies that, in fact, they can police their own systems,

which they cannot do now. This is a service not only to the

public, but, also, to the cable companies themselves.

- While phone companies in some states can choose to deny

services to “dial-a-porn” companies (see Carlin Com., Inc. v. Southern

Bell Tel. & Tel. Co., 802 F.2d 1352 (11th Cir. 1986)], companies in

other states are not permitted to do so -- and may never be able to do

so if Petitioners’ “state action” views prevail.

- TT a Ag ye

editorial control over indecent

programming before

canenens passed the 1984 Cable Communications Policy

ct, Congress did not “restore” to cable operators their

editorial control because the ope .

: rators

discretion in the first place.""” never had the

Amicus would argue that there is a difference

oe a person who does not Nave 4 constitutional right

0 begin with (e.g., to shout "fire”’ in a crowded theater)

and one who does have @ constitutional right but who is

prevented by governmem from exercising it. \f a state

enacts a law prohibiting cable operators from exercising

editorial control” or, pursuant to a franchise agreement, an

operator agrees to not exercise editorial control, the cable

—o do not lose their constitutional rights--or never

ave them “in the first place.” Just as government

prevented the exercise of these rights, it can remove the

barriers to their exercise and, in effect. “restore” them.

Petitioners AAP also arque that

constitutes “state action” amen it ee nage ae

laws and franchising agreements. '’ Subsection

624(f)(1)'" of the Cable Act of 1984, however, already

preempted States and local authorities from imposing

requirements regarding the...content of cable services,

Gxcept as expressly provided.”'’ Nowhere does

the Cable

Act of 1984 expressly provide that states or franchising

ts Pet. AAP Br. at 24.27.

47 U.S.C. 544(f)(1).

Cf, Community Television v. Wilk

ns 7

1102-1103 (0.C. Utah 1985) inson, 611 F Supp 1099.

authorities can require Cable operators to = roomy

it is clear from

programming. On the contrary, it Is |

legislative history and from provisions within the Cable Act

of 1984 that Congress did not intend or desire that access

channels become protected havens for indecency.

Nor do Sections 636 and 637” of the Cable Act

of 1984 “expressly” provide that cable operators can be

required to carry indecent programming. Given the policy

expressed in Subsections 612(h) and 624(d)(1)(2) against

carriage of indecency, Amicus would argue that these

Sections preempt any state law or franchise provision

which would require carriage of indecent programming on

access channels. Clearly, if states and franchising

authorities were preempted by the Cable Act of 1984, they

cannot again be preempted by the Cable Act of 1992.

Petitioners AAP also argue that state action is

present because Section 10 “significantly encourages” the

“underlying private conduct."*’ For Congress, however,

to do all that it believed it could do constitutionally to

address the problem of obscene or indecent programming

on public and leased access channels, does not add up to

a plan or scheme to “ban indecent speech on access

shannels"*’ or to “compel censorship.”

Government often imposes burdens on the exercise

of aright. For example, the Federal “Dial-A-Porn” statute

*° 47 U.S.C. 556 and 557

*’ Pet. AAP Br. at 27.

*? Pet. AAP Br. at 28

23 id at 29.

requires telephone companies that provide billing services

to providers of “indecent” messages to block access to

such messages from the telephones of subscribers who

have not in writing requested access.** Communities also

restrict the location and operation of “adult uses.”

Compliance can be costly, but a person's decision to not

open an “adult use” is not thereby converted into "state

action.” Nor are such private decisions converted iNto

“state action” by obscenity laws or by the statements of

some legisiators, who would prefer that “sexually oriented

businesses” not open at all in their communities.”

In enacting Section 10 of the Cable Act of 1992.

Congress removed a barrier it had imposed on the right of

cable operators to exercise editorial control over indecent

material on access channels. It did so, not to encourage

Cable operators to ban indecent programming, but because

it had every reason to believe that most. if not all, cable

operators were carrying such material against their will.”°

47 U.S.C. 223ic)\1).

- See, e.g., City of Renton v. Playtime Theatres, inc., 106 $ Ct.

925, 929 (1986); United States v. O'Brien, 391 U.S. 367, 383-384

(1968)("It is a familiar principle of constitutional law that this Court will

not strike down an otherwise constitutional statute on the basis of an

alleged ihcrt legisiative motive.. What motivates once legislator to make

&@ speech about a statute is ~ot necessarily what motivates scores of

others to enact it....*).

= Cf., Statement of Sen. Wirth, quoted above at p. 8. See also.

“Bill to Limit ‘Offensive’ Cable TV Programs introduced in Albany.”

N.Y. Times, 5/28/81 (article notes that sponsor of bill to give cable

compames “greater control” over public access channeis to prevent

‘proliferation of pornography’* was jomed at a news conference by

representatives of “one of two Manhattan cable franchises."); and

“Cable ads ‘within law,’* WY. Post, 2/12/87 (article quotes Manhattan

Cable TV general counsel as Saying that lack of editorial contro! over

Congress also required cable operators, who choose

to carry indecency on leased access channels, to put it on

a blocked channel. it did so, not to encourage cable

operators to ban indecent programming, but rather to

protect children if the cable operators choose to carry it.’

Finally, Congress stripped cable operators of immunity from

liability for carrying obscenity on leased/public access

channels. it did so, not to encourage operators to ban

indecency, but to discourage carriage of obscenity.”

Petitioners AAP also argue that “public access”

channels are a “public forum."** Amicus would urge this

Court to not rush to conclude that either local franchising

authorities or Congress have transformed channel space on

a privately owned cable system into a “public forum,”

particularly when the "forum" intrudes into the privacy of

the home and is uniquely accessible to children.”

sexually oriented ads on leased channels was a “situation Manhattan

Cable is not particularly happy to be in”).

27? 138 Cong. Rec. $646-647 (daily ed. Jan. 30, 1992) (statement

of Senator Helms); /d. at $648-649 (statement of Sen. Coats).

8 See, e.g., Playboy Enterprises v. Public Service Com'n of P.R.,

698 F.Supp. 401 (D. Puerto Rico 1988); "DA, Prompted by Koch,

Probes Late Night Sex Telecasts,” V.Y.C. Tribune, 12/8/89 (article

describes letter from NYC Mayor Koch asking district attorney to

investigate “pornographic cablecasts” on Manhattan Cable TV's “leased

access” channel that “may be obscene under state or federal law.”).

22 Pet. AAP Br. at 32-33.

= Furthermore, even in a “public forum,” obscenity, harmful to

minors and public indecency laws apply, and as this Court has held,

“indecent” speech, which may be constitutionally protected outside the

home, can be regulated when it intrudes into the privacy of the home

and is accessible to children. Pacifica, at 438 U.S. 749, n.27.

Amicus would also argue that it is one thing to

require persons to dedicate private property, which they do

not use for communicative purposes (e.g., telephone poles

or sidewalks in front of mall stores), for "public use,” and

another thing to require persons to “dedicate” valuable TV

channels for “public indecency.” Required access channels

have often deprived viewers of quality programming. *'

CABLE TV INDECENCY WHICH INTRUDES INTO THE

HOME, ASSAULTING UNWILLING ADULTS AND

PROVIDING EASY ACCESS TO CHILDREN,

1S A FORM OF ‘NUISANCE SPEECH’ WHICH

CONGRESS CAN PROHIBIT

A. “Nuisance Speech’ is a Category of Speech

Outside First Amendment Protection.

This Court has often stated that there are narrowly

limited classes of speech which are not protected by the

First Amendment. Amicus contends that one such class is

“nuisance speech” and that “indecent” speech which, by

means of cable TV access channels, assaults unwilling

adults in the privacy of the home and is easily accessible to

children, is a form of “nuisance speech"*’ which Congress

31 °

See, e.g., "Cable runs out of room,” N.Y. Post, 7/17/95 (article

notes that there is no space on Time Warner's Manhattan cable system

for “Turner Classic Movies” and the “History Channel,” in part because

Time Warner is required to carry four “public access” channels).

Cf., 50 Am. Jur. 2d Lewdness. indecency pp. 484-485 ("use

of indecent language...under certain circumstances...considered a

nuisance."); Am. Jur. Proof of Facts, Vol. 8, p. 530 (1960): ("{A)

nuisance may be established by showing that the thing involved violates

the laws of decency; and a showing of hurt to moral sensibilities is

deemed sufficiently substantial to justify judicial interposition.*).

can constitutionally prohibit.»

F The concept of “nuisance speech,” as a class of

speech unprotected by the First Amendment, was first

alluded to by this honorable Court in Chaplinsky v. New

Hampshire,’ where the Court stated:

There are certain, well-defined and narrowly limited

classes of speech, the prevention and punishment of

which have never been thought to raise any

Constitutional problem. These include the lewd and

obscene...those which by their very utterance inflict

injury or tend to incite an immediate breach of the

peace...{Sluch utterances are no essential part of

any exposition of ideas, and are of such slight social

value as a step to truth that any benefit that may be

derived from them is clearly outweighed by the

social interest in order and morality.”

°° Amicus does not say that indecency is unprotected in every

medium or context. Cf. Pacifica, 438 U.S. 726, at 746 ("We may

assume, arguendo, that this monologue would be protected in other

contexts.”). Time of day is one variable to be considered. /d. at 750.

315 US. 568 (1942).

* id. at 571-572. Amicus says “alluded to” because the above

quoted material, while not specifically mentioning nuisance speech,

twice cites the book Free Speech in the United States, by Zechariah

Chafee, Jr. (1941), which does so at pp. 149-150:

But the law also punishes a few classes of words like

obscenity, profanity...because the very utterance of such words

is considered to inflict a present imjury upon listeners,

readers... This is a very different matter from punishing words

because they express ideas thought to cause future danger to

the state...[P]roperly limited they fall outside the protection of

the free speech clauses...[Plrofanity, indecent talk and pictures.

which do not form an essential part of any exposition of ideas,

have a very slight social value as a step toward truth, which is

| In Breard v. Alexandria®’ and Kovacs v. Cooper’

this Court upheld nuisance ordinances aimed at means of

communication that intrude uninvitedly into the privacy of

the home and, in Hess v. Indiana,” this Court identified

speech that amounts to a public nuisance as outside the

protection of the First Amendment:

It hardly needs repeating that ‘[yJhe...guarantees of

freedom of speech forbid the States to punish the

use of words or language not within ‘narrowly

limited classes of speech.’...Hess’ words could [not]

be punished as obscene...By the same token, any

suggestion that Hess’ speech amounted to ‘fighting

words’...could not withstand scrutiny... In addition,

there is no evidence to indicate that Hess’ speech

amounted to a public nuisance in that privacy

interests were being invaded.’ (Emphasis added]

The public nuisance rationale was also applied by

Clearly outweighed by the social interests in order, morality, the

training of the young and the peace of mind of those who hear

or see...

quisance as the man who smokes there. (Emphasis supplied]

°° 341 U.S. 622 (1951).

366 U.S. 77 (1949).

*® 414US. 105 (1973).

ld. at 107-108. Cf. Redrup v. New York, 386 U.S. 767, 769

(1967) and Close v. Lederele, 424 F.2d 988, 990 (1st Cir. 1970). cert.

den., 400 U.S. 903 (1970), both of which recognize a need for

government protection against an “assault upon individual privacy.”

three Justices writing in dissent in Rosenfeld v. New

Jersey’. Justice Powell, with whom the Chief Justice

and Mr. Justice Blackmun joined, wrote:

But the exception to the First Amendment

protection in Chaplinsky is not limited to words

whose mere utterance entails a high probability of

an outbreak of physical violence. It also extends to

the willful use of scurrilous language calculated to

offend the sensibilities of an unwilling audience...[A]

verbal assault on an unwilling audience may be so

ee bi ; oteniont —_ het )

’ inating it disorder!

...The Model

Penal Code...also recognizes a distinction between

utterances which may threaten physical violence

and those which may amount to a public nuisance.

' zing ti it falls within....F:

Amendment [protection].*' [Emphasis added]

in Bethel School District No. 403 v. Fraser*’, this

Court held that a student could be penalized for making an

indecent speech before a school assembly, attended by

students and faculty, in violation of a school rule. Justice

Stevens dissented on due process grounds, but also noted:

[A] ‘nuisance may be merely a right thing in the

wrong place,--like a pig in the parlor instead of the

barnyard...Vulgar language, like vulgar animals, may

be acceptable in some contexts, and intolerable in

others...lt seems...obvious that [the] speech would

*° 408 U.S. 901 (1972).

ld. at 408 U.S. 905-906.

*2 478 U.S. 675 (1986).

be inappropriate in certain...settings.”*°

The concept of "nuisance speech" was also applied

to TV in FCC v. Pacifica Foundation.*“* in Pacifica, this

Court, in affirming an FCC ruling that the Carlin monologue,

"Filthy Words,” as broadcast was indecent and prohibited

by 18 U.S.C. 1464, observed that the FCC decision "rested

entirely on a nuisance rationale under which context is all

important” and compared indecent broadcast to a "pig in a

parlor instead of the barnyard."** The Pacifica Court also

stated that special regulation of broadcast indecency was

justified because it “confronts the citizen, not only in

public, but also in the privacy of the home" and because it

is "uniquely accessible to children."*°

Amicus contends that Pacifica must be read

consistent with the line of cases cited above, which treat

"nuisance speech” as unprotected. Amicus also contends

that indecency on cable TV access channels, which

intrudes into the home, assaulting unconsenting adults and

providing easy access to children, also amounts to a

"nuisance" and is unprotected by the First Amendment.*’

id. at 696.

438 U.S. 726 (1978); see aiso Tallman v. United States, 465

F.2d 282, 285-286 (7th Cir. 1972).

“ id. at 750.

that protecting adults was a valid concern. Id. at 759-760

” if Amicus’ is correct that "nuisance speech” is unprotected, then

“strict scrutiny” is not the level of scrutiny to be applied. Cf, City of

Dalias v. Stanglin, 109 S.Ct. 159, 57 LW 4406, 4407 (1989): "Uniess

laws ‘create suspect classifications or impinge upon constitutionally

B. Cable TV indecency is Just As Much a

‘Nuisance’ As Broadcast indecency And Can Be

Prohibited By Congress

While it is true that cable viewers elect to have cable

installed and pay a monthly fee, it is also true that

broadcast viewers elect to pay for the TV, have an antenna

installed and support the programming by buying the

products advertised. It does not follow that either desire or

"elect" to have indecent programming dumped into their

living rooms or have their children exposed to it.

Amicus would also point out that in over 60 percent

of American homes, broadcast programming now enters

the home via a cable TV wire as a part of the basic cable

package, and cable viewers do not have any more control

over the rest of the basic package, which includes public

and leased access channels, than they do over the

broadcast programming. A “pig” which comes uninvited

into the parlor via a cable TV wire is just as offensive to

unwilling adults and accessible to children as the same

“pig” which enters the home directly "over the airwaves.”

if broadcast indecency constitutes a “nuisance,”

which Congress can prohibit, then indecency on cable TV

access channels, to the extent that it invades the privacy

of the home and is accessible to children, is also a

"nuisance,"*” which Congress can prohibit. Section 10(b)

protected rights,’...it need only be shown that they bear ‘some rational

relationship to a leg itimate state purpose.’”

Cf., op ed article Goodbye, Channel J -- and Good Riddance,

N.Y. Times, 9/29/90, by Gilbert T. Sewali, describing programming on

Manhattan's leased access “Channel J” as “hard-core sex programming”

and as being one of New York's “real public nuisances.”

is, therefore, a lawful exercise of the legislative power.*”

Cc. The Summary Affirmance in Wilkinson v. Jones

Does Not Prevent This Court from Upholding The

Regulation of indecency at /ssue Here.

In Wilkinson v. Jones,*°® this Court, over the

objection of the Chief Justice and Justice O’Connor,

summarily affirmed a decision of the Tenth Circuit which,

in @ per curiam opinion,’ had affirmed a decision of the

district court of Utah”’ invalidating a Utah cable TV

indecency act. The Court of Appeals’ affirmance was

based on “the reasons stated” by the district court, which

had heid that the Utah Act was preempted by Federal law

and was "unconstitutionally overbroad and vague, and void

on its face."** Circuit Judge Baldock, who agreed the law

was overbroad and vague, nevertheless concluded in a

concurring opinion “that the Pacifica rationale for the

regulation of indecency applies to cablecasting."**

While a summary affirmance is a ruling “on the

Cf., Kovacs, 336 U.S. 77, at 85 ("We need not determine

whether this ordinance...is regulatory or prohibitory. All regulatory

enactments are prohibitory so far as thei restrictions are concerned.”).

°° 480 U.S. 926 (1987).

"Jones v. Wilkinson, 800 F.2d 989 (10th Cir. 1986).

52 , a

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

1099 (D.Utah 1985).

> 611 F.Supp at 1105, 1117.

54 ai

Jones v. Wilkinson, 800 F.2d 989, at 1006

merits"? and does prevent lower courts from “coming to

opposite conclusions on the precise issues presented and

necessarily decided” by the action,”° it does not have the

same precedential value as does an opinion of the Supreme

Court “after briefing and oral argument on the merits””’

and should not be read as necessarily adopting the

reasoning of the lower court whose judgement is

appealed’ or understood "as breaking new ground, but as

applying principles established by prior decisions to the

particular facts involved."*®

How then should this Court’s summary affirmance

of the Tenth Circuit’s per curiam opinion in Wilkinson v.

Jones, supra be understood? While dicta or overbroad

language in the district court’s opinion has prompted

assertions that it rests on a determination that the First

Amendment prevents government prohibitions on all

nonobscene cable programming, the district court decision

could rest on several grounds and should not be read as

establishing the broadest constitutional principle.”°

°° Hicks v. Miranda, 422 U.S. 332, 344 (1975).

°° Mandel v. Bradley, 432 U.S. 173, 176 (1977).

’ Edelman v. Jordan, 415 U.S. 651, 657 (1974); Washingten v.

Confederated Bands and Tribes, 439 U.S. 463, 476, n.20 (1979).

® Mandel v. Bradley, 432 U.S. at 176

°9 id. at 176.

" in Wilkinson v. Jones, the first question presented by

Appellant’s Jurisdictional Statement [cf. 55 L.W. 3577] was the

following: *(1) Does First Amendment deny government any power to

restrict public dissemination of indecent material on cable television in

any circumstances?” In their Motion To Affirm [at p. 20], however, the

By summarily affirming, this honorable Court

provided no indication of the rationale of the Court in

affirming or of the Justices that voted to affirm. Some or

all of the justices could have concluded that the Utah

Statute as such was preempted or was vague or overbroad

(and therefore curable), without actually deciding

Appellant's broad constitutional issue as phrased in

question (1) above.

The "precedential significance" of a summary

decision must be assessed in light of all the facts in that

decision and that where the facts of a subsequent case are

"very different,” lower courts must make an "independent

examination of the merits" in the new case.” Clearly

then, the summary affirmance in Wilkinson does not

foreclose the Court itself from addressing here the validity

of very different federal Cable TV indecency legislation.

APPLYING THE INDECENCY STANDARD TO CABLE

TV ACCESS CHANNELS WILL NOT REDUCE ADULTS

TO VIEWING ONLY WHAT IS FIT FOR CHILDREN.

Petitioners AAP argue that Section 10 would reduce

adults to viewing only that which is fit for children.”

While protecting children may have been Congress’ primary

concern, however, Amicus would contend that it wasn’t

Appellees argued that: “Appellant not only asks the Court to abstract

from this case the broadest constitutional issue raised...but to disregard

the other necessarily attendant issues that make clear that this statute

is infirm On narrower constitutional grounds.”

Mande/ v. Bradley, 432 U.S. at 177.

®2 Pet. AAP Br. at 37.

the only concern. In introducing his amendment,”

Senator Helms said: “Consumers have the right to reject

such programming from being fed into their homes"

[emphasis added] and then quoted from a mother’s letter:

Words cannot describe the outrage | felt when |

found myself watching on cable TV a couple

engaging in oral sex...! feel as though my daughter

and | are subject to verbal and visual violation just

by...pushing the wrong button.” [Emph. added]

In introducing his amendment to restore to cable

operators editorial control over “sexually explicit conduct,”

obscenity and solicitation for prostitution on public 8 access

channels, Senator Fowler did not mention children.”

Amicus would argue that the “indecency” concept

is linked to what offends societal standards of propriety and

53 Section 10(a)(b). In 1988, when Senator Helms introduced an

amendment to prohibit indecent broadcast, he clearly intended it to

protect not just children but all Americans. See, Cong. Rec. $.9911-

9913 (daily ed. July 26, 1988). in 1991, however, a panel of the D.C.

Circuit invalidated that amendment and, in the process, indicated that

the only valid governmental interest was protection of children. Action

for Children’s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991).

** 138 Cong. Rec. $646 (daily ed. Jan. 30, 1992). In support of

the Helms amendment, Senator Thurmond also stated at $648:

mopletel nsolicited. Furthermore, children cannot be

monitored every minute of the day. [Emphasis added]

= Cong. Rec. $649 (daily rec. Jan. 30, 1992) (statement of

Sen. Fowler). Senator Wirth, who authored the provisions of the Cable

Act of 1984 pertaining to public access channels, also did not mention

children in his statement of support for the Fowler amendment. 138

Cong. Rec. $.650 (daily rec. Jan. 30, 1992) (statement of Sen. Wirth).

morality and is determined by community standards--not

solely by what is deemed “harmful to minors." In Roth

v. United States,”’ this honorable Court stated:

“This Court, as early as 1896, said of the Federal

Obscenity statute: ‘...Every one who uses the

mails...must take notice of what...is meant by

decency...in social life.” (Emphasis added)

In Manual Enterprises, inc. v. Day,” Justice Harian

Stated that indecency (viz. "patent offensiveness") involves

application of community standards:

“The words...’obscene, lewd, lascivious, indecent,

filthy or vile,” connote something that is portrayed

in a manner so offensive as to make it unacceptable

under current community mores...{Tlhe statute

reaches only indecent material....”

In FCC v. Pacifica Foundation, this honorable Court

Stated that the “normal definition of ‘indecent’ merely

refers to nonconformance with accepted standards of

morality."°* in Bethel School District No. 403 v.

Fraser,”° this Court noted that members of Congress were

prohibited from using “indecent language against the

proceedings of the House,” and also stated:

"(Sichools must teach by example the shared values

of a civilized social order....The pervasive sexual

oc)

See, e.g., Ginsberg v. New York, 390 US. 629 (1968)

®°” 354 US. 476, at 491, 9.28 (1957)

°° 370 US. 478, at 482 (1962)

°° 438 U.S. 726. at 740

° 478 US. 675, at 682 (1986)

innuendo in (the student's] speech was plainly

offensive to...teachers and students--indeed to any

mature person.”’’ [Emphasis added]

in Barnes v. Glen Theatre,”’ this honorable Court

upheld an Indiana statute prohibiting “Public indecency.”

in so doing, Chief Justice Rehnquist noted:

“Public indecency statutes of this sort...reflect the

moral disapproval of people appearing in the nude

among strangers in pubic places....Thus the public

indecency statute furthers a substantial government

interest in protecting order and morality.”””

Nor has this honorable Court said that Congress may

only regulate indecency to protect children. Mr. Justice

Stevens, who delivered the opinion of the Court, with

respect to Part IV-C, in Pacifica, described one attribute of

the broadcast media which justifies restricting indecency:

"(T)he broadcast media have established a uniquely

pervasive presence in the lives of all Americans.

Patently offensive, indecent material presented over

the airwaves confronts the citizen...in the privacy of

the home, where the individual's right to be left

lain! ighs the Fi : ) ial

of an intruder...{Plirior warnings cannot completely

protect the listener or viewer from unexpected

program content.””* (Emphasis added]

" id. at 683

’? 601 US. 560 (1991)

id. at 568-569.

438 U.S. 726, at 748-749

in Frisby v. Schultz,” this Court described the

“interest” in protecting the well-being, tranquility, and

privacy of the home as being “certainly of the highest order

in a free and civilized society.” The Court then stated:

“One important aspect of residential privacy is

protection of the unwilling listener. Although in

many locations we expect individuals simply to

avoid speech..., the home is different....Thus, we

have repeatedly held that individuals are not

required to welcome unwanted speech into their

own homes and that government may protect this

freedom. See, e.g., FCC v. Pacifica, 438 U.S. 726,

748-749 (1978)...; id., at 759-760 (Powell, J.

concurring in part and concurring in judgement).””°

in Sable Communications of California, Inc. v.

FCC,”’ the sole issue, as framed by the parties, was

whether a ban on indecent dial-a-porn messages could be

justified solely on a protection of minors rationale. This

Court said "Ng," but noted:

The private...telephone communications at issue

here are substantially different from the public radio

broadcasting at issue in Pacifica....Callers will

generally not be unwilling listeners. The context of

dial-in services...is manifestiy different from a

Situation in which @ listener does not want the

received message. Placing a phone call is not the

> 487 US. 474, at 484 (1988).

427 N.E.2d 201 (ill. App. Ct. 1981), appeal dism’d sub nom., Starview

Drive-in Theatre, inc. v. Cook Co., 457 U.S. 113 (1982).

”? 492 US. 115 (1989)

same as turning on a radio and being taken by

surprise...” [Emphasis added]

Amicus, therefore, urges this Court to “include in

the balance” not just children but also the many adults”

who do want to be assaulted in the privacy of their homes

by indecent programming on cable TV access channels.

THE ‘INDECENCY’ STANDARD !S

NEITHER VAGUE NOR OVERBROAD

Petitioners AAP also argue that the definition of

"indecent" is vague.”’ In Pacifica, however, this Court,

rejected a very similar challenge:

[Pacifica] argues that the Commission's construction

of the statutory language broadly encompasses so

much constitutionally protected speech that reversal

is required...At most, however, the Commission's

definition of indecency will deter only the

broadcasting of patently offensive references to

excretory and sexual organs and activities. While

some of these references may be protected, they

surely lie at the periphery of First Amendment

concern... The danger dismissed so summarily in Red

Lion...was that broadcasters would respond to the

vagueness of the regulations by refusing to present

programs dealing with important social and political

8 id. at 127-128.

- oO. opimon polls cited in Peters, ‘Information Supermagnhway or

Technological Sewer: What Will lt Be?, 47 Fed. Com. L./., Vol. 2, 333,

at 334, footnotes 2-7 (December 1994).

8° Pet. AAP Br. at 43-47.

controversies. invalidating any rule on the basis of

its hypothetical application to situations not before

the Court is “strong medicine” to be applied

“sparingly and only as a last resort.”*'

in Miller v. California,*’ this Court also pointed to

the “patently offensive sexual conduct” prong of its

obscenity test (which is very similar to the FCC's

“indecency” definition) as providing “fair notice” to those

who traffic in sex materials.*° Even before Miller, Justice

Harlan equated “indecency” with “patent offensiveness:"

These...cannot be deemed so offensive as to affront

current community standards of decency -- a quality

that we shall hereafter refer to as “patent

offensiveness” or “indecency."™

Petitioners AAP argue, however, that while

“patently offensive” is included in the obscenity definition,

this Court has “limited the risk of arbitrary enforcement by

adding other safeguards."* This, however, only restates

the obvious--i.e., that “obscenity” defines a narrow

category of speech which is outside First Amendment

8" id. at 742-743.

82 413 US. 15 (1973).

> id. at 27-28.

8 Manual Enterprises, inc. v. Day, 370 U.S. at 482

Pet. AAP Br. at 44.

protection, irrespective of context or medium,” while

“indecency” defines a broader category. It has little to do

with whether the second prong of Miller is vague.

Amicus notes further that what is “patently

offensive” is determined by applying community

standards.’ Under the nuisance rationale, “time of

day"’® and “serious value,"*’ are also variables to be

considered in determining whether programming is

"indecent." The programs Petitioners AAP desire to

protect, therefore, might not be “indecent” at all or if

shown in the late evening or after midnight.”°

There is also an extensive history of court decisions

and FCC rulings to guide program providers in determining

what is “patently offensive” or “indecent,” and Amicus

would contend that the real problem is not an inability to

determine what is “indecent,” but rather a failure to

(1973)

See, e.g., Kaplan v. California, 413 U.S. 115, at 118-119

ad At page 9 of their brief, Petitioners AAP say that a program

which provides valuable information may also be “controversial or

offensive to some viewers.” [Emphasis supplied) Programming is not

“indecent,” however, simply because it is “offensive to some viewers.”

8° ECC v. Pacifica Foundation, 438 U.S. 726, at 750.

" Ct, Pacifica, 438 U.S. 726, at 732, n.6; Action for Children’s

TV v. FCC, 852 F.2d 1332, at 1339-1340 (D.C. Cir. 1988).

9° Amicus also contends, however, that some descriptions or

depictions of sexual or excretory activities or organs on cable TV access

channels are so offensive as to be “indecent” at ANY TIME OF DAY OR

NIGHT and must be on a restricted access channel.

recognize that there are “rights and interests, ‘other than

those of the advocates involved,’"*' -- which include the

right of the Nation...to maintain a decent society."*”

CONCLUSION

For all of the above the decision of the District of

Columbia Circuit should be affirmed.

Respectfully submitted

Paul J. McGeady

Counsel of Record

475 Riverside Drive

New York, New York 10115

Attorney for Amicus Curiae

Morality In Media, Inc.

212 870 3232

Robert W. Peters

of Counsel

January 24, 1996

91 P

Paris Adult Theatre / v. Slaton, 413 U.S. 49, at 58 (1973)

[quoting from Breard v. Alexandria, 341 U.S. 622, 642 (1951)].

413 U.S. at 59-60 [quoting from Jacobellis v. Ohio, 378 US.

184, 199 (1964) (Mr. Chief Justice Warren, dissenting)|

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