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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0640%3A18

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1996
- **Citation:** 516 U.S. 1091

## Text

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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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0640%3A18. Public record. Not legal advice.