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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0634%3A11

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 518 U.S. 727

## 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

As
| 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
ES PTT ST ee ere Te 6
SPC ccctetecvetiacescaseiaueaes 7
4, 0 TTT ee ee ee 9
Gy Gs SEP wens bc castes escdawnseeeeeeheee 10
Cee bc cckuse sv eekes eb anaa wr eeneent 10
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

1
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

1

Cf., 138 Cong. Rec. $647-648 (daily ed. Jan. 30, 1992) (letter
of Robert Peters of Morality in Media).

2

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

3

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,

4

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.

5

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).

6

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”).

7

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.)

8

"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

9

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

© Pet. AAP Br. at 23

ts Pet. AAP Br. at 24.27.

18
47 U.S.C. 544(f)(1).

'9
Cf, Community Television v. Wilk

ns 7
1102-1103 (0.C. Utah 1985) inson, 611 F Supp 1099.

10

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.

11

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.”°

24

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

12

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.

13

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).

32

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.*).

14
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

15

| 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).

37

366 U.S. 77 (1949).

*® 414US. 105 (1973).

39
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.”

16

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).

17

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.*’

43

id. at 696.

a4

438 U.S. 726 (1978); see aiso Tallman v. United States, 465
F.2d 282, 285-286 (7th Cir. 1972).

“ id. at 750.

*© id. at 748-749. Justice Powell, concurring, specifically agreed

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

18

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.’”

48
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.”

19

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

49
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).

5
> 611 F.Supp at 1105, 1117.

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

20

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

21

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.

i
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.

22

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).

23

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)

24

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)

73

id. at 568-569.

74

438 U.S. 726, at 748-749

25

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).

"© id. at 484-485. See also. People v. Starview Drive-in Theatre,
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)

26

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.

IV
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.

27

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.

28

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

86
(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.

29
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)].

92
413 U.S. at 59-60 [quoting from Jacobellis v. Ohio, 378 US.
184, 199 (1964) (Mr. Chief Justice Warren, dissenting)|

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0634%3A11. Public record. Not legal advice.