Amicus Curiae Brief — Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications Commission

No. 95-227

(Consolidated with No.

cell. In The

Wy SUPREME COURT OF THE UNITED STATES

AS October Term, 1995

ALLIANCE FOR COMMUNITY MEDIA,

ALLIANCE FOR COMMUNICATIONS DEMOCRACY,

AND PEOPLE FOR THE AMERICAN WAY, et ai.,

Petitioners,

v.

i FEDERAL COMMUNICATIONS COMMISSION AND

ey UNITED STATES OF AMERICA, et al.,

aa Respondents.

ess ON WRIT OF CERTIORARI

ie TO THE UNITED STATES COURT OF APPEALS

Be FOR THE DISTRICT OF COLUMBIA CIRCUIT

BS BRIEF OF AMICUS CURIAE

a NATIONAL FAMILY LEGAL FOUNDATION

ie IN SUPPORT OF THE UNITED STATES

ee: LEN L. MUNSIL

nH 11000 North Scottsdale Road, Suite 144

| - Sconsdale, Arizona 85254

ee ees (602) 922-9731

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APPENDIX B

CERTIFICATE OF SERVICE

il

Cases Pages

Barnes v. Glen Theatre, Inc.

RE 16

Bethel School District No. 403 v. Fraser

EE ee re 14

Blum v. Yaretsky

457 U.S. 991, 1004-05 (1982) ............ )

Breard v. Alexandria

os Se be epee sees 13

Chaplinsky v. New Hampshire

(ob ence ceeceetnes 1]

FCC v. Pacifica

438 U.S. 726 (1978) ......... 4,5,12,13,14,15

Hess v. Indiana

EE os oc cc ccscess 11,12,13

Kovacs v. Cooper

TEED ccc ccocccossccees 12,13

Mesarosh v. State

459 N.E. 2d 426, 427-28

MMs pceeccceseesceees 12

Miller v. California

ads dweguedset eee 11

Cases Pages

Tallman v. United States

465 F.2d 282, 285-86 (7th Cir. 1972) ...... 13

Statutes

erry reer ree 12

Cable Communications Policy Act of 1984, 47 U.S.C.

§§ 531 (e), 532 (c)(2), Stat. App. la,4a .......... 8

Cable Television Consumer Protection and Competition Act

GE Weeee Ge Ges OUD cet coeesbeetoens< 8

Other Authoriti

Chafee, Free Speech in the United States,

WD ccccvée caccheewenteieueeteesa 12

iv

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— ee ee ~

CONSENT OF THE PARTIES

Attorneys for Petitioners and Respondents have

consented to the filing of an amicus curiae brief by National

Family Legal Foundation. (See Appendix B).

INTEREST OF AMICUS CURIAE

National Family Legal Foundation ("NFLF") is a

nonprofit, public interest cospecstion that seeks to preserve

the integrity of families and the innocence of children by

promoting a healthy and safe environment, free from

pornography and the sexual crimes which invariably

accompany its widespread availability. NFLF provides

legal assistance to individuals, organizations, prosecutors

and other public officials concerned about the harmful

impact of pornography on the quality of life.

NFLF founder Alan E. Sears was the Executive

Director of the Attorney General's Commission on

Pornography. In its 1986 Final Report, the Commission

discussed the harms caused by the proliferation of sexual

images in our society, and warned against the dangers of

exposing children and unconsenting adults to pornography.

Mr. Sears and NFLF have been active in urging the Federal

Communications Commission to enforce its prohibition of

indecent broadcasts, and in urging Congress and the Federal

Communications Commission to allow cable companies to

prohibit indecency. Former Attorney General Edwin Meese

III, who presented the 1986 Commission Report, continues

to support enforcing constitutional laws restricting various

forms of pornography by serving as an active member of

the Board of Directors for National Family Legal

Foundation.

SUMMARY OF THE ARGUMENT

This case is indeed about pornography, and more

particularly, whether families are required to expose their

children to pornographic, indecent speech in order to have

access to the latest news, educational programming and

entertainment provided by cable television. We know that

when cable companies were not given the ability to prevent

indecent speech, pornography flourished on leased access

and public access television.

As an organization devoted to fighting on behalf of

neighborhoods seeking protection from sex businesses, and

on behalf of families seeking protection from the

devastating influence of pornography on families and

children, we believe parents should not have to choose

between the benefits of cable and the dangers of easily

accessible cable pornography. They should be able to have

the advantages of cable TV without fear that their children

will be exposed to pornographic material they would never

subscribe to or purchase.

While the government regulation in this case, which

allows cable operators to exercise editorial discretion, is not

"state action," even if it were, the First Amendment would

not be violated by this reasonable restriction on just a

portion of the cable television options available to homes.

Indecency reaches most people virtually every day from any

number of forums, including pay-per-view and premium

channels on cable TV. It need not also be given license to

pollute leased access and public access channels that are a

part of most cable companies’ basic package.

"Petitioners cannot overemphasize that, despite

Congress’s rhetoric in enacting Section 10, this case is not

about obscenity or pornography." (Petitioners’ brief at 3).

Yet Congress seemed to think otherwise, and every major

anti-pornography group is concerned enough about the

consequences of this Court’s decision to file briefs in this

case.

The uncontroverted evidence, which was known to

and cited by Congress, is that leased access and public

access television have for many years been exploited by

sexual deviants, from professionals like Al Goldstein to

amateurs like Bob Baxter. (See Exhibit A). All of these

exploitive cablecasts are pornographic, most are indecent

according to the definition this Court provided in FCC v.

Pacifica, 438 U.S. 726 (1978), and many border on

obscenity. And all are available to any child who can

operate a remote control, or to any unconsenting adult who

is channel surfing.

The abuses of leased access and public access

channels by pornographers were well documented in

Congress and before the Federal Communications

Commission. Time-Warner testified that Midnight Blue

presented videos with graphic scenes of intercourse,

masturbation and other sex acts. Public access channels

were used to show female nude dancers gyrating with their

genitals in full view. On another public access channel a

man exposed himself to the camera and urinated on a

picture of the President of the United States. (If that had

happened outside the studio, he would have been arrested

for public indecency; inside the studio, he can safely expose

himself to the camera and end up with Petitioners and other

6

activist groups arguing to protect his "freedoms" in the U.S.

Supreme Court!)

No child or unconsenting adult should have to come

across such pornography, profanity and vulgarity on their

own television. But they will if cable companies: are

deprived of the right to make editorial judgments for their

companies regarding the appropriateness of certain

programs.

Il. This case is not about "censorship," because by its

Vv t t issue rel

7 local : . “—_

itori i ing "i ent" lecasts, .

and therefore does not constitute "state action".

What this case is truly not about is "censorship," a

word that finds its way into Petitioners’ brief with alarming

frequency. Censorship in violation of the First Amendment

is by definition an action only the government can take.

All the government did in this case was remove an obstacle

to the freedom of cable companies to keep indecent

programming from assaulting unsuspecting subscribers.

And the obstacle the statute removed was one of Congress's

own creation. See Cable Communications Policy Act of

1984, 47 U.S.C. §§ 531 (e), 532 (c)(2), Stat. App. la, 4a.

The relevant language from Section 10(a) of the

Cable Television Consumer Protection and Competition Act

of 1992, which applies to leased access, states that "[t]his

subsection shall permit a cable operator to enforce

prospectively a written and published policy of prohibiting

programming that the cable operator reasonably believes

describes or depicts sexual or excretory activities or organs

in a patently offensive manner as measured by

contemporary community standards." 47 U.S.C. § 532(h).

Section 10(c) applies to public access channels, and requires

the FCC to promulgate regulations prohibiting programming

that contains “sexually explicit conduct" or “material

soliciting or promoting unlawful conduct." 47 U.S.C. §

531.

This is not brain surgery. A lengthy analysis of

legislative history is unnecessary, and largely irrelevant.

The law speaks for itself. It says that the FCC needs to

come up with regulations that permit cable operators to

create a policy for prohibiting indecent programs. It is not

a law that requires cable operators to create and enforce

such a policy. Because there is no "coercion" or

"significant encouragement" from the federal government,

there is no "state action": "Mere approval of or

acquiescence in the initiatives of a private party is not

sufficient to justify holding the State responsible for those

initiatives under the terms of the Fourteenth Amendment."

Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982). Allowing

cable companies to exercise editorial discretion is not "state

action.”

III. ven if thi nds "state action,” the statute is

er — wm

"I o f bl

av t ibl t to

, ‘

re aE ae apy omen its in ity of their } :

Even if this Court concludes that the exercise of

editorial discretion by cable companies is "state action,” we

reject the government’s "concession" that the First

Amendment is violated. An unnecessary concession by the

government might affect its enforcement decisions, but

should not affect this Court’s constitutional interpretation.

The indecency standard is not vague or

unascertainable. It is nuisance speech which, although

entitled to some First Amendment protection, is also subject

to reasonable time, place and manner regulation to prevent

it from assaulting children and unconsenting adults,

particularly in the privacy of their own home. Anyone who

subscribes to cable has numerous opportunities to purchase

indecent speech, and perhaps even obscenity, through

premium channels and pay-per-view. But leased access and

public access channels are nearly always free with a basic

10

service subscription. If Petitioners’ succeed in this

challenge, a customer who desired to protect the sanctity of

his home from indecent speech would have to cancel cable,

surrendering his right to receive any cable channels at all,

in order to protect his children from exposure to indecency.

Surely our Constitution does not require families to sacrifice

access to the latest news, education and entertainment on

the altar of "patently offensive descriptions or

representations of sexual or excretory functions."

This Court has consistently held that there are

classes of "speech" which are outside the protection of the

First Amendment. For example, obscenity is not protected

by the First Amendment. Miller v. California, 413 U.S. 15

(1973); Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

("fighting words" unprotected)'; Hess v. Indiana, 414 U.S.

' In Rosenfeld v. New Jersey, 408 U.S. 901, 905-06 (1972),

three dissenting justices expressly noted that Chaplinsky's

First Amendment exceptions encompassed nuisance speech.

1]

105 (1973) (speech advocating imminent violence

unprotected). This case implicates yet another class of

speech which does not enjoy constitutional protection --

nuisance speech.

Nuisance speech is speech which, in view of the

time, place or manner of its delivery, unduly and

unreasonably interferes with the privacy of the home. See

Kovacs v. Cooper, 336 U.S. 77 (1949); Hess, 414 U.S. at

107-108; Mesarosh v. State, 459 N.E. 2d 426, 427-28 (Ind.

Ct. App. 1984); see also Chafee, Free Speech in the United

States, (1941) at 148-150.

In FCC v. Pacifica, 438 U.S. 726 (1978), this Court

recognized that indecent speech constitutes a nuisance and

is subject to stringent regulation in the context of the

broadcast medium. In Pacifica, the Supreme Court held

that a monologue entitled "filthy words” was indecent as

broadcast and therefore violative of 18 U.S.C. §1464. /d

In concluding that a broadcast of "patently offensive words

12

dealing with sex and excretion" could be regulated "because

of its content", the Pacifica Court noted that: "“{Indecent

speech] offend[s] for the same reason obscenity offends. .

.. [S]uch utterances are no essential part of any exposition

of ideas and are of . . . slight social value." 438 U.S. at

746.

This Court has permitted the government to protect

the privacy of the home from intrusive and offensive speech

in other contexts as well. In Breard v. Alexandria, 34)

U.S. 622 (1951), this Court sustained an ordinance aimed at

methods of communication which intrude uninvited into the

privacy of the home. In the same vein, this Court in

Kovacs observed “that more people may be . . . reached by

sound trucks . . . is not enough to call forth constitutional

protection for what is . . . a nuisance." 336 U.S. at 88-89;

see Tallman v. United States, 465 F.2d 282, 285-86 (7th

Cir. 1972).

In Hess, this Court explicitly recognized that

13

“nuisance speech" is unprotected by the First Amendment,

concluding that the speech at issue in that case was

protected, in part, because it did not “amount to a public

nuisance in that privacy righis were not being invaded."

414 U.S. at 107-108. Finally, in Bethel School District No.

403 v. Fraser, 478 U.S. 675 (1986), Justice Stevens noted

in dissent that "[vJulgar language, like vulgar animals, may

be acceptable in some contexts, and intolerable in others. .

. It seems fairly obvious that Respondent's speech would

be inappropriate in certain . . . settings." Jd at 696. The

majority in Bethel held that a student could be penalized,

consistently with the Constitution, for making indecent

remarks in a speech before a school assembly. 478 U.S at

696.

IV. Cablecast indecency may be extensively regulated

: a r

The evils Congress sought to prevent, and the

governmental interests which justify regulating broadcast

14

indecency, apply with undiminished force to the regulation

of cablecast indecency. This Court in Pacifica noted with

approval the two main concerns motivating the FCC -- the

intrusive nature of broadcasting (where programming comes

directly into the home creating the danger that the

sensibilities of unwilling recipients would be offended) and

the risk of exposing children to indecency. Pacifica, 438

U.S. at 748-49. The same concerns justify the regulation of

indecent cablecasts. The television which supplies

broadcast indecency also supplies cablecast indecency.

Pacifica teaches that there is no constitutionally significant

difference as to whether the "pig comes into the parlor” via

the public airways, or along a coaxial cable. /d at 750.

Moreover, no greater scope of choice inheres in the

decision to receive cable television signals in the home

The person who purchases a television “elects” to receive

broadcasts. Pacifica clearly stands for the proposition that

it does not follow that he wants indecent material broadcast

15

into his home. 438 U.S. at 749. Similarly, the purchaser

of basic cable services “elects” to receive cable television

programs. Under the logic of Pacifica, it does not follow

that he also desires to have indecent materials cable cast

into his home. Indeed, if citizens are entitled to be in a

public place without having to turn their eyes to avoid

sexually explicit nudity, they must, a fortiori, be entitled to

be in the privacy of their homes without having to “flip the

dial" to avoid being bombarded with indecent images. See

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 564 (1991).

In short, Congress can prohibit cablecast indecency

because it constitutes a nuisance and nuisance speech is not

protected by the First Amendment. Congress can, of

course, regulate the presentation of cablecast indecency

rather than prohibit it outright, as it did with Section 10 of

the 1992 Cable Act. Section 10 is therefore an appropriate

and lawful exercise of legislative power.

16

CONCLUSION

American society has suffered from a tremendous

decline in civility over the past few decades. Common

courtesy and decency seem to be relics of a previous

generation. This decline can be seen in everything from

minor traffic altercations that end with gunfire to profane

bumper stickers, from stadiums full of sports fans shouting

vulgar slogans in unison to the coarseness of our

entertainment culture.

Constitutionally protected "indecent" speech --

speech that has never been the highest priority for our

nation or this Court -- speech that reaches depths of

offensiveness that few seek to descend to -- is everywhere

available. You hear it on the streets, at the ballgames, on

videotapes and record albums, in our films, through the

telephone, and yes, on cable television through pay per view

and premium channels. Isn't that enough? Can't families

17

with young children, in the privacy of their own home, seek

out the entertainment afforded by basic cable television

without risking exposure to hard-core sex acts and nude

dancing? Can they leave their teenagers home alone with

the television? Or must this one area of entertainment, one

smal] part of one large medium, also be soiled by

indecency? Is ow freedom really so fragile that it is

unconstitutionally damaged by allowing cable companies to

say no to frontal scenes of male urination?

Must they be asked to turn the dial after exposure,

which as this Court pointed out in Pacifica is like

suggesting the remedy for assault is to run away after the

first blow? Or worse, must they abandon the news,

education and entertainment offered by cable television by

canceling any service at all?

On behalf of decent families and children throughout

America, we urge this Court to uphold the constitutionality

of Section 10 of the 1992 Cable Act, and free cable

18

companies to clean up their public and leased access

channels without interference from the government.

Respectfully Submitted,

fof nA

Len L. Munsil

11000 North Scottsdale Road

Suite 144

Scottsdale, Arizona 85254

(602) 922-9731

19

APPENDIX A

Dimension Cable Company (now Cox Communications)

aired the broadcast recorded on this video labeled as Exhibit

"A", in Phoenix, Arizona on public access channel 22 at

11:00 p.m. on Saturday, July 30, 1994. Exhibit "A" was

videotaped in a private home after its discovery while

channel surfing, so the tape begins mid-way into the

presentation:

The scene opens with an interview conducted by a

male who identifies himself as Bob Baxter. He is

interviewing a nude female, identified as Ms. Nude Texas,

who is standing with her arms down at her side. Both of

her breasts and her front pubic hair are fully exposed during

an approximate two-and-one-half minute interview.

Scene moves outside by swimming pool, where Bob

Baxter introduces the physical exhibition segment of the

competiton by Ms. Nude Texas. She places herself on a

zebra print blanket by the pool and begins to stretch and

pose. She spreads her legs, stretches back to lift her breasts

upward, raises her body up with both arms and legs down,

lifting her head up and pushing her buttocks up with genital

area exposed. She stands up and leans over frontwards,

with a camera shot close-up of her buttocks and anus.

Bob Baxter interviews the next contestant, "Molly,"

Ms. Nude Washington, who reveals her fully nude breasts.

The scene changes to the inside set where another interview

is conducted with the blond female identified as "Molly"

standing with her bare breasts in full view. Back outside,

Molly reveals full frontal nudity and is shown in successive

scenes fondling her own breasts, and making various

sexually explicit movements while laying face up totally

nude on a raft in the pool. Molly ends her exhibition by

bowing with her back to the camera, facing a group of

males, with her bare buttocks filling the screen.

Three females are standing together outside playfully

doing a "can-can" type dance. In this scene there is full

frontal nudity. The girls move around to the music and

close by turning their backs to the camera and bowing

together, with their bare buttocks fully exposed. The

camera zooms in on the exposed anus of the female in the

center of the group.

The winners of the Ms. Nude America contest are

announced. The winner is identified as contestant Lorraine,

Ms. Nude New York. She participates in an interview with

Bob Baxter and full frontal nudity is on camera for several

minutes.

The broadcast concludes with camera shots around

the swimming pool with various unidentified nude males

and females talking, walking, and sunning themselves.

r.@2

LEM MINSIL Fa 00920720 lan 24 °S% 816-89 6 02002

Mr. Rover: T. Perry Page 2 January 23. 1996

I. Robert T. Perry, do hereby consent to the filing of an Amicus Cunae Brief in Alliance

y FCC. No. 95-227, consolidated with 95-124. by the Navonal Family Legai Foundation

Msl9e Rohed T. Pom,

Daie ~ Rober T. Perry

UL. S. Department of Justice

Office of the Solicuor General

Washington DC 20530

January 16, 1996

Ler. L. Munsil, Esq

National Family Legal Foundation

33690 North Scottsdale Road

Suite 144

Scottsdale, Arizona 85254

Re:

Dear Mr. Munsil:

AS requested in your letter of January 3, 1996, I! hereby

consent tc the filing of an amicus curiae brief on behalf of the

National Family Legal Foundation in the above-captioned case.

Sincerely, ) F

A i ~ Re ay

wr 2 t4 A

Drew S. Days, I!

Solicitor Genera

ec William K uter, Esq.

Clerk

Supreme Cour

to United States

Washington, D.C

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Mr. Charlies S. Sims Page ? Jamusry 24, 1996

ji. Aran Sdrahusl 1 Cette

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I bereby corsect to the filing of an Amicus Curise Brief in v. FOC, #95-124 fees

(consolidated with 95-227), by the Nationa Family Legal F a

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January 16, 1996

Len L. Munsil, Esq.

Executive Director and General Counsel

National Family Legal Foundation

11000 North Scottsdale Road

Suite 144

Scottsdale, Arizona 85254

Dear Mr.

for Communications Democracy,

hereby consent to the National

Re: Alliance for Community Media v. FCC, No. 95-227 (s.

Ct.)

Munsil:

On behalf of the Alliance for Community Media, the Alliance

and People For the American Way, I

Family Legal Foundation filing an

amicus curiae brief in the above-captioned case.

organizations only.

Please note that this consent applies to the above three

You will need to obtain the consent of the

other parties from their respective counsel.

cc:

Please call me if you have any questions.

Very truly yours,

. wa

(hel —— -

Michael K. Isenman

James A. Feldman, Esq.

Robert T. Perry, Esq.

Charles S. Sims, Esq.

CERTIFICATE OF SERVICE

I hereby certify that three copies of the foregoing

"Brief of Amicus Curiae National Family Legal Foundation

In Support of the United States" have been sent by U.S.

Mail, Postage Prepaid, on this 29th day of January, 1996,

to:

Drew S. Days, III

Solicitor General

U.S. Department of Justice

Office of the Solicitor General

Washington, D.C. 20530

I. Michael Greenberger

Counsel of Record

Michael K. Isenman

Shea & Gardner

1800 Massachusetts Ave., N.W.

Washington, D.C. 20036

Charles S. Sims, Esq.

Proskauer, Rose, Goetz and Mendelsohn

1585 Broadway

New York, New York 10036

Robert T. Perry, Esq.

509-12th Street, Apt. 2C

Brooklyn, New York 11215

y,

Lf mS

Len L. Munsil