Petition for Writ of Certiorari — Action For Children's Television v. Federal Communications Commission (Nos. 95-520, 95-509)

Court,

FILED

Q5° 520 SEP 25195

No.

CLERK

In THE

Supreme Court of the United States

OCTOBER TERM, 1995

ACTION FOR CHILDREN’S TELEVISION, ef al.,

Petitioners,

Vv.

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Of Counsel: TrmoTuy B. Dyk

Sam ANTAR (Counsel of Record)

CAPITAL CiTtEes/ABC, INc. BARBARA MCDOWELL

77 West 66th Street JONES, Day, REAViIs & POGUE

New York, New York 10023 1450 G Street, N.W.

Howarp F. JAECKEL ani 20005

CBS INc.

51 West 52nd Street Counsel for Petitioners and

New York, New York 10019 ene

[ Additional Counsel Listed on Inside Front Cover]

WILSON - Eras Printine Co., Inc. - 789-0096 - WasHINGTON, D.C. 20001

HENRY GELLER

1776 K Street, N.W.

Suite 900

Washington, D.C. 20006

Counsel for Action for

Children’s Television

MARJORIE HEINS

182 West 48rd Street

New York, New York 10036

Counsel for American Civil

Liberties Union

JAMES POPHAM

1200 18th Street, N.W.

Washington, D.C. 20006

Counsel for Association of

MOLLY PAUKER

5161 Wisconsin Avenue, N.W.

Washington, D.C. 20016

Counsel for Fox Television

Stations, Inc.

BARBARA BURNS

2 Kennedy Boulevard

East Brunswick, N.J. 08816

Counsel for Greater Media, Inc.

Counsel for Infinity

Broadcasting Corporation

Fritz E. ATTAWAY

1600 Eye Street, N.W.

Washington, D.C. 20006

Counsel for Motion Picture

Association of America, Inc.

HENRY L. BAUMANN

STEVEN A. BOOKSHESTER

1771 N Street, N.W.

Washington, D.C. 20086

Counsel for National

Association of Broadcasters

STEPHEN NEvas

DENISE B. LEARY

635 Massachusetts Avenue, N.W.

Washington, D.C. 20001

Counsel for National Public

Radio

ANDREW JAY SCHWARTZMAN

Media Access Project

2000 M Street, N.W.

Washington, D.C. 20086

ELLIOT MINCBERG

2000 M Street, N.W.

Washington, D.C. 20036

Counsel for People for the

American Way

ROBERT BRANSON

3 Constitution Plaza

Hartford, Connecticut 061038

Counsel for Post-N eweweek

Stations, Inc.

PAULA A. JAMESON

NANCY H. HENDRY

1820 Braddock Place

Alexandria, Virginia 22314

Counsel for Public

Broadcasting Service

J. LAURENT SCHARFF

REED SMITH SHAW & McCLay

1801 K Street, N.W.

Washington, D.C. 20005

Counsel for Radio-Television

News Directors Association

JANE E. KIRTLEY

1101 Wilson Boulevard

Suite 1910

Arlington, Virginia 22209

Counsel for The Reporters

Committee for Freedom

of the Press

” teed W. SANForD

ius, 8S. HOBERMAN

ROBERT D. LysTaD

BAKER & HOSTETLER

1050 Connecticut Avenue, N.W.

Suite 1100

Washington, D.C. 20086

Counsel for Society of

Professional Journalists

QUESTION PRESENTED

Whether Section 16(a) of the Public Telecommunica-

tions Act of 1992, whether standing alone or as limited

by the Court of Appeals, violates the First Amendment.

(i)

ii

PARTIES TO THE PROCEEDINGS

The petitioners are Action For Children’s Television;

American Civil Liberties Union; Association of

ent Television Stations, Inc.; Capital Cities/ABC, Inc.;

CBS Inc.; Fox Television Stations, Inc.; Infinity Broad-

casting Corporation; Greater Media, Inc.; Motion Picture

Association of America, Inc.; National Association of

Broadcasters; National Public Radio; People For The

American Way; Post-Newsweek Stations, Inc.; Public

Broadcasting Service; Radio-Television News Directors

Association; The Reporters Committee for Freedom of

the Press; and Society of Professional Journalists.

Pursuant to this Court’s Rule 29.1, following are the

parent companies and subsidiaries (except wholly owned

subsidiaries) of those petitioners that are corporations:

Petitioner Fox Television Stations, Inc., is a wholly

owned subsidiary of News America Holdings, Inc., and

The News Corporation, Ltd. Petitioner Post-Newsweek

Stations, Inc., is a wholly owned subsidiary of The Wash-

ington Post Company. A minority of the stock of peti-

tioner Capital Cities/ABC, Inc. is owned by Berkshire

Hathaway, Inc. A minority of the stock of petitioner

CBS Inc. is owned by Loew’s Corporation. It has been

announced that the Walt Disney Company intends to

acquire Capital Cities/ABC, Inc. and that Westinghouse

Electric Corporation intends to acquire CBS Inc.

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED 000...

STATEMENT OF THE CASE .20...0......ccccccccccccseseeeeveons

REASONS FOR GRANTING THE WRIT ........... seetioes

I.

Il.

IN DEFERRING TO CONGRESS AND FAIL-

ING TO REQUIRE EVIDENCE TO SUPPORT

THE INDECENCY BAN, THE DECISION

BELOW IS IN FUNDAMENTAL CONFLICT

WITH DECISIONS OF THIS COURT ..........

A. The Court Failed To Require Proof Of Any

Harm To Children From “Indecent” Broad-

casts

B. The Court Failed To Require Proof Of Chil-

dren’s Exposure To “Indecent” Broadcasts...

C. The Court Failed To Require Proof That

Section 16(a) Is Narrowly Tailored ...........

THE COURT OF APPEALS’ EVALUATION

OF THE COMPETING INTERESTS IMPLI-

CATED BY SECTION 16(a) CONFLICTS

WITH DECISIONS OF THIS COURT ...........

A. The Court Of Appeals’ Recognition Of An

Independent Government Interest In Pro-

10

12

15

16

18

21

21

iv

TABLE OF CONTENTS—Continued

Page

B. The Court Of Appeals’ Misconception Of The

Government’s Interest In Aiding Parental

Authority Conflicts With This Court’s De

cisions 23

C. The Court Of Appeals’ Heavy Reliance On

Ill. IN HOLDING THAT THE FCC’S DEFINI-

TION OF “INDECENCY” IS NOT UNCON-

STITUTIONALLY VAGUE, THE COURT OF

APPEALS’ DECISION CONFLICTS WITH

DECISIONS OF THIS COURT . 26

EE ae 29

vy

TABLE OF AUTHORITIES

Cases Page

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

1882 (D.C. Cir. 1988) ..fpassim

Action for Children’s Television v. FCC, 982 F.2d

1504 (D.C. Cir. 1991) ...T, 19, 27

Action for Children’s Television v. FCC, 59 F.8d

1249 (D.C. Cir. 1995) _........ 10

Bantam Books, Inc. ?. Sullivan, ‘$72 US. 58

Ee es ee Se 28

Bolger v. Youngs Drug Products, 4638 U.S. 60

EET SE ne ee ee Or 22, 24, 26

Brown v. Oklahoma, 408 U.S. 914 (1972) _............. 28

CBS v. Democratic Nat'l Comm., 412 US. 94

a eS ee ee TE 13

Cohen v. California, 408 U.S. 15 (1971) ——.......... 28

Commodity Futures Trading Comm’n v. Schor,

Ga i i lttnatl ctemnditieinctincesnte 21

Crowder v. Housing Auth. of City of Atlanta, 990

F.2d 586 (llth Cir. 1998) 25

Community Television of Utah, Inc. v. Wilkinson,

611 F. Supp. 1099 (D. Utah 1985) —........... 29

Dial Information Servs. v. Thornburgh, 988 F.2d

1585 (2d Cir. 1991), cert. denied, 502 U.S. 1072

ee 29

Edenfield v. Fane, 113 8. Ct. 1792 (1998) . Dibealine 13, 14, 15

16, 17

FCC v. League of Women Voters, 468 U.S. 364

| TE en ae ee ey aaa 14

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

Ginsberg v. New York, 390 U.S. 629 (1968) __... 15, 21

Grayned v. City of Rockford, 408 US. 104

ew Se eS ee eee ee CoN 28

Hobbs v. Hawkins, 968 F.2d 471 (5th Cir. 1992)... 25

Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) .... 28

Information Providers’ Coalition for Defense of

First Amendment v. FCC, 928 F.2d 866 (9th

eT =. =<. ee 29

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

aff'd mem., 480 U.S. 926 (1987) —....................... 29

Landmark Communications, Inc. v. Virginia, 435

US. $29 (1978) ................... 18

vi

TABLE OF AUTHORITIES—Continued

Page

Lewis v. City of New Orleans, 408 US. 918

(1972) 28

Los Angeles v. Preferred Communications, Inc.,

476 U.S. 488 (1986) 18

Meyer v. Nebraska, 262 U.S. 390 (1928) 21

28

22

21

28

14

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

(1964)

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

1977), rev'd, 488 U.S. 726 (1978) ..

Pierce v. Society of Sisters, 268 U.S. 510 (1925) .

Rosenfeld v. New Jersey, 408 U.S. 901 (1972)...

Rubin v. Coors Brewing Co. 115 8. Ct. 1585

| PR eae ee

Sable Communications of California, Inc. v. FCC,

8 OS FO PA ee passim

Schneider v. State, 308 U.S. 147 (1989) 25

Shad v. Borough of Mount Ephraim, 452 U.S. 61

ORE ES RRO ea i hola 25

Southeastern Promotions, Ltd. v. Conrad, 420 US.

OE ee aE Oe eee 25

Speiser v. Randall, 357 U.S. 518 (1958) 28

Turner Broadcasting System, Inc. v. FCC, 114

S Ge, Sap Cae ot ake 18, 14, 17

United States v. Albertini, 472 U.S. 675 (1985). 21

United States v. Evergreen Media Corp. of Chi-

cago, 832 F. Supp. 1183 (N.D. Ill. 1998)... 29

United States v. National Treasury Employees

Union, 115 S. Ct. 1008 (1995) 20, 21

Virginia State Bd. of Pharmacy v. Virginia Citi-

zens Consumer Council, Inc., 425 U.S. 748

) | OR) a | 25

Whitney v. California, 274 U.S. 367 (1927)... 13

Wisconsin v. Yoder, 406 U.S. 205 (1972)... 21

Statutes and Regulations

18 U.S.C. § 1464, amended by Pub. L. No. 108-

FE era + tree ere 1,2

33 UC. 8 GS a a ae. 1

Public Telecommunications Act of 1992, Pub. L.

No. 102-356, § 16(a), 106 Stat. 949... 1,2

ee Se ee 1

vii

TABLE OF AUTHORITIES—Continued

Administrative Orders

Enforcement of Prohibitions Against Broadcast

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

Enforcement of Prohibitions Against Broadcast

Indecency in 18 U.S.C. omgrl tte neta

(Aug. 5, 1988), vacated 4 F.C.C.R. 6706 (1989) ..

KLUC-FM, Notice of Apparent Liability, 6

IAS yy ————

KSD-FM, Notice of Apparent Liability, 6 F.C.C.R.

oa

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

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

Letter to Julie Magnell (Oct. 26, 1989) ...............

Letter to Mr. and Mrs. Roland Orle from Chief,

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

Letter to Thomas Byrne from Chief, Mass Media

Daven (Aas. F, BGGB) << ---~-20<0-~2nceeecereeen-o2n00-=---

Pacifica Foundation, 56 F.C.C.2d 94, 99 (1975)...

Pacifica Foundation, Inc., 2 F.C.C.R. 2698, recon-

sideration and clarification granted in part, de-

nied in part sub nom. Infinity Broadcasting

Corp. of Pa., 3 F.C.C.R. 980 (1987), vacated in

part and remanded sub nom. Action for Chil-

dren’s Television v. FCC, 852 F.2d 1332 —

Cir. 1988) .... os

Public Notice, 2 F.C.C.R. 2726 (1987) . ats eon tee

Sagittarius Broadcasting Corp., 7 F.C.C.R. 6873

(MMB 1992) _.....

WCKS Broadcasters, “Ltd., “Notice of “Apparent

Liability, 9 F.C.C.R. 4871 (MMB 1994) .

WLIZ, Notice of Apparent Liability, 6 F.C.C.R.

| _) OE PT OO nT nnn nee “

So

Re

e § 8

viii

TABLE OF AUTHORITIES—Continued

Legislative History

138 Cong. Rec. H7264 (daily ed. Aug. 4, 1992) ........

188 Cong. Rec. $7308 (daily ed. June 2, 1992) ..........

138 Cong. Rec. $7423 (daily ed. June 8, 1992) .........

Miscellaneous Authority

Comments of Action for Children’s Television,

et al., MM Docket No. 89-494 (Feb. 20, 1990) ....

FCC Investigating; Group W Says Indecency Find-

ing Against KYW-TV Would Be Censorship,

Communications Daily (Apr. 26, 1998) ................

News Release, Federal Communications Commis-

— SS FSGS SG eee

PETITION FOR A WRIT OF CERTIORARI

Action for Children’s Television, et al., respectfully

petition for a writ of certiorari to review the judgment of

the United States Court of Appeals for the District of

Columbia Circuit in this case.

OPINIONS BELOW

The en banc opinion of the United States Court of

for the District of Columbia Circuit is reported

at 58 F.3d 654. It is reprinted at pages la-74a of the

appendix to this petition. The vacated panel opinion was

reported at 11 F.3d 170 and is reprinted at pages 75a-

110a of the appendix. The Federal Communications

Commission’s Report and Order was published at 8

F.C.C.R. 704 and is reprinted at pages 111a-138a of the

appendix.

JURISDICTION

The judgment of the Court of Appeals was entered on

June 30, 1995. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS, STATUTES,

AND REGULATIONS INVOLVED

This is a First Amendment challenge to Section 16(a)

of the Public Telecommunications Act of 1992, Pub. L.

No. 102-356, § 16(a), 106 Stat. 949, 954, and the regu-

lation promulgated thereunder, 47 C.F.R. § 73.3999. The

statute and regulation seek to enforce the broadcast in-

decency prohibition contained in 18 U.S.C. § 1464 (1988),

amended by Pub. L. No. 103-322, 108 Stat. 2147. The

relevant constitutional, statutory, and regulatory provi-

sions are reproduced in the appendix at 139a-140a.

STATEMENT OF THE CASE

This case presents important questions concerning the

government’s authority to regulate “indecent” material in

radio and television broadcasts. These questions have not

been considered by the Court in the nearly two decades

2

since its sharply divided decision in FCC v. Pacifica

Foundation, 438 U.S. 726 (1978). Specifically, this case

concerns the cOnstitutionality of Section 16(a) of the

Public Telecommunications Act of 1992, Pub. L. No.

102-356, § 16(a), 106 Stat. 949, which imposed a 6 a.m.-

to-midnight ban on broadcasts of material that the Federal

Communications Commission (“FCC”) deems “indecent,”

although not obscene.

The Court of Appeals for the District of Columbia

Circuit, after invalidating Section 16(a) in its original

panel decision, granted rehearing en banc and generally

upheld the statute. The court found Section 16(a) un-

constitutional only to the extent that it allowed certain

public broadcasters to present “indecent” material begin-

ning at 10 p.m., two hours earlier than all other broad-

casters. The court thereupon rewrote the statute to impose

a 6 a.m.-to-10 p.m. indecency ban on all broadcasters.

* * * *

Congress and the FCC have periodically sought, under

18 U.S.C. § 1464, to restrict the broadcast of so-called

“indecent” material—that is, material that may be con-

sidered offensive or sexually suggestive, but that is not

obscene, either because it does not appeal to the prurient

interest, or because it has serious literary, artistic, political,

or scientific merit, or both.

In the mid-1970s, the FCC began to focus its attention

on the repeated use of what became known as the “seven

dirty words.” In Pacifica, 438 U.S. 726, this Court

affirmed the FCC’s ruling that the repeated use of those

words in comedian George Carlin’s “Filthy Words” mono-

logue was indecent, and that a radio broadcast of the

monologue at 2 p.m. on a weekday afternoon violated

18 U.S.C. § 1464. The Court “emphasizefd} the narrow-

ness of [its] holding,” making clear that “questions con-

cerning possible action in other contexts were expressly

reserved for the future.” 438 U.S. at 734, 750. The

Court specifically noted that the FCC had not foreclosed

the broadcast of similar material during the evening hours.

Id. at 750 n.28.

.

.” In re rarely Broad-

casting Corp., 3 F.C.C.R. 930 (1987), vacated in part

sub nom. Action for Children’s Television v. FCC

(“ACT I”), 852 F.2d 1332 (D.C. Cir. 1988). Broad-

casters were permitted to “channel” material containing

those words to a “safe harbor” period after 10 p.m. /d.

In view of the FCC’s very restrictive definition of what

was “indecent,” which had caused the FCC to reject

every indecency complaint filed in the years immediately

following Pacifica, broadcasters did not challenge the

extent of the safe harbor.

In 1987, the FCC substantially expanded its regulation

of broadcast indecency. See Public Notice, 2 F.C.C.R.

2726 (1987). The FCC announced that its indecency

enforcement would no longer be limited to the particular

words at issue in Pacifica. Instead, the FCC would deem

“indecent” any “language or material that depicts or de-

scribes, in terms patently offensive as measured by con-

temporary community standards for the broadcast me-

dium, sexual or excretory activities or organs.” I/d. at

2726. The FCC indicated that enforcement under this

new standard would encompass a wide range of material *

—including news,’ informational programs,’ political ad-

1 The FCC did not in each of the following instances find the

particular material to be indecent, but it did make clear that these

types of programs are not exempt from its indecency regulation.

2 See, e.g., KSD-FM, Notice of Apparent Liability, 6 F.C.C.R.

3689 (1990) (“while the newsworthy nature of broadcast material

and its presentation in a serious, newsworthy manner would be

relevant contextual considerations in an indecency determination,

they are not, in themselves, dispositive factors”); see also Report

and Order, Jn re Enforcement of Prohibitions Against Broadcast

Indecency in 18 U.S.C. § 1464, 8 F.C.C.R. 704, 709 (1998) (1993

Report and Order”) (noting petitioners’ “request to make news

and public affairs programs entirely exempt from indecency en-

forcement” without granting request). |

3 See, e.g., FCC Investigating; Group W Says Indecency Finding

Against KYW-TV Philadelphia Would Be Censorship, Communica-

of context is critical in all indecency cases,” the FCC

refused to Beng dsr edie Reagdiod sug nay

or attention” in determining whether material is indecent,

or to exempt news and public affairs programs from the

reach of the definition. /nfinity, 3 F.C.C.R. at 932, 937

& n.28. The FCC also limited “indecent” broadcasts to

times when there was no “reasonable risk” of children in

the audience, a limitation that appeared to cover all hours

of the day. 2 F.C.C.R. at 2726.

On reconsideration, the FCC agreed that a safe harbor

for “indecent” programs was necessary, but narrowed it

to the hours between midnight and 6 a.m. Infinity, 3

F.C.C.R. 930. The FCC made clear that its indecency

tions Daily, Apr. 26, 1998, at 3 (report on FCC investigation of

loca] television program dealing with Philadelphia adult establish-

ment); Letter to Mr. and Mrs. Roland Orle from Chief, Mass

Media Bureau (Apr. 7, 1988) (informational program on sex edu-

cation for teenagers).

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

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

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

clock for City Hall).

5 See, e.g., Pacifica Foundation, Inc., 2 F.C.C.R. 2698 (play

dealing with AIDS and homosexuality), reconsideration and clarifi-

cation granted in part, denied in part sub nom. Infinity Broadcast-

ing Corp. of Pa., 3 F.C.C.R. 980 (1987), vacated in part and

remanded sub nom. ACT I, 852 F.2d 1832; Letter to Thomas Byrne

from Chief, Mass Media Bureau (Apr. 7, 1988) (radio presenta-

tion of Ulysses was not “indecent” because of its considerable

duration).

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

(Aug. 5, 1988) (film Private Lessons), vacated, 4 F.C.C.R. 6706

(1989).

7 See, ¢.g., KLUC-FM, Notice of Apparent Liability, 6 F.C.C.R.

3695 (1990) (recording of song “Erotic City” by Prince).

® See, e.g., WLIZ, Notice of Apparent Liability, 6 F.C.C.R. 3698

(1989) (song parodies satirizing male attitudes toward sexuality).

5

regulation was designed “to enable parents to decide

effectively what material of this kind their children will

see or hear.” /d. at 931.

The Court of Appeals (then-Judge (now-Justice) Gins-

burg and Judges Robinson and Sentelle) affirmed in part

and reversed in part. ACT /, 852 F.2d 1332. Writing

for the court, then-Judge Ginsburg recognized that

“vagueness is inherent” in the FCC’s indecency definition,

but concluded that Pacifica foreclosed any finding that

the definition was unconstitutionally vague. /d. at 1339,

1344. The court, however, “welcome[d] correction” of

its reading of Pacifica from “Higher Authority.” /d.

The court also held that the FCC’s 6 a.m.-to-midnight

prohibition on broadcast indecency was unconstitutionally

broad. Jd. at 1340-44. The FCC was obligated to im-

plement a more “reasonable” safe harbor, said the court,

in order to “allow scope for the first amendment-

shielded freedom and choice of broadcasters and their

audiences.” Id. at 1343 n.18. The court reasoned that

“the government's role is to facilitate parental supervision

of children’s listening,” and “[t}hus, the FCC must en-

deavor to determine what channeling rule will most

effectively promote parental—as distinguished from

government—control.” Jd. at 1343-44. The court re-

manded the matter to the FCC to conduct a “full and

fair” hearing on the appropriate dimensions of a safe

harbor. Jd. at 1340-44.’

Shortly thereafter, Congress directed the FCC to

promulgate regulations enforcing a 24-hour-a-day ban on

broadcast indecency. Pub. L. No. 100-459, § 608, 102

Stat. 2228. The FCC promptly commenced a new pro-

ceeding and implemented the ban. Enforcement of Pro-

hibitions Against Broadcast Obscenity and Indecency in

18 U.S.C. § 1464, 4 F.C.C.R. 457 (1988). While the

* The court directed the FCC to consider, among other things,

whether station- or program-specific audience data could be used

in order to better assess whether any “reasonabie risk” exists that

significant numbers of unsupervised children are in the audience.

See ACT I, 852 F.2d at 1340-43.

held that a ban on indecent dial-a-porn services violated

the First Amendment. The Court of remanded

the challenge to the broadcast indecency “in light of

. . . Sable,” again directing the FCC to “conduct a full

and fair hearing” to justify its indecency regulation. Ac-

tion for Children’s Television v. FCC, No. 88-1916,

Order (D.C. Cir. Sept.13, 1989).

In the remand proceeding, petitioners submitted evi-

dence demonstrating that the indecency ban was not a

narrowly tailored means of protecting unsupervised chil-

dren, because most persons under age 18 are in the

presence of parents or other adults during many hours of

the day. See Comments of Action for Children’s Tele-

vision, et al., MM Docket No. 89-494 at 32-33 & Appen-

dix C (Feb. 20, 1990). For example, during the 8 p.m.-

to-6 a.m. safe harbor period then being used by the FCC

under a stay granted by the Court of Appeals, 98% of

all young people are under adult supervision, at school

or asleep.

The FCC issued a report in support of its prior con-

clusion that a complete ban on broadcast indecency was

justified. Enjorcement of Prohibitions Against Broadcast

Indecency in 18 U.S.C. § 1464, 5 F.C.C.R. 5297 (1990).

The FCC asserted that the government has an independ-

ent interest in shielding children from “indecent” broad-

casts, even during hours when parents are available to

supervise their children’s viewing and listening. Jd. at

5299. The FCC concluded that the ban was “narrowly

tailored” because “significant numbers of children are in

the audience at all times”—-many of whom were not re-

ceiving “effective” or “meaningful” supervision, since

their parents were not “co-viewing” or “co-listening” with

them. Id. at 5302, 5305-06.

On review, the Court of Appeals (Chief Judge Mikva,

then-Judge (now-Justice) Thomas, and Judge Edwards)

7

held that the 24-hour-a-day ban could not withstand First

Amendment scrutiny, and that some portion of the day

must be set aside as a safe harbor for “indecent” pro-

grams. Action for Children’s Television v. FCC (“ACT

Il”), 932 F.2d 1504, 1509-10 (D.C, Cir. 1991), cert.

denied, 503 U.S. 913 (1992). The case was yet in

remanded to the FCC for a “ ‘full and fair hearing.’” ”

On June 2, 1992, during the Senate’s consideration of

the Public Telecommunications Act, Senator Byrd of-

fered a floor amendment to require the FCC to enforce

a 6 a.m.-tomidnight ban on “indecent programming.”

See 138 Cong. Rec. $7308 (daily ed. June 2, 1992).

The amendment allowed public broadcasters who sign off

the air by midnight to present such programs after 10

p.m. The amendment was adopted by the Senate, and

subsequently by the House, without committee considera-

tion or significant floor debate. Id. at $7423-24 (daily

ed. June 3, 1992); id. at H7272 (daily ed. Aug. 4, 1992).

When the Public Telecommunications Act was before the

House, Representative Dingell, its floor manager, ad-

vised his colleagues that “the Byrd amendment is clearly

unconstitutional,” but nonetheless urged that the entire

Act be approved. Jd. at H7264. The amendment became

Section 16(a) of the Act, which President Bush signed

into law on August 26, 1992.

The FCC commenced a new rulemaking to implement

the ban. In that proceeding, these petitioners pointed to

ratings data demonstrating that the ban would deny adult

viewers and listeners access to constitutionally protected

material. They also directed the FCC’s attention to the

earlier evidence that virtually no unsupervised children

or teenagers are in the broadcast audience during many

hours of the day. .

On January 22, 1993, the FCC adopted regulations to

enforce Section 16(a). Report and Order, In re Enforce-

8

ment of Prohibitions Against Broadcast Indecency in 18

U.S.C. § 1464, 8 F.C.C.R. 704 (1993) (“1993 Report

and Order”) (App. 1lla). In seeking to justify the 6

a.m.-to-midnight ban, the FCC asserted that its interest in

regulating mdecency was not “restricted to ensuring that

parents have an opportunity to supervise their children’s

listening and viewing,” but also encompassed an “inde-

pendent interest in ensuring the well being of minors.”

App. 116a." The FCC concluded that the new indecency

ban was “narrowly tailored” to serve these interests,

relying on the record assembled in the rulemaking on the

earlier 24-hour-a-day ban. The FCC reiterated that “sig-

nificant” numbers of persons under age 18 are in the

broadcast audience at all hours. Jd. at 114a-115a. The

FCC then asserted that many such persons are not “effec-

tively supervise[d]” in their exposure to television and

radio, because many parents, even when at home, do not

watch television or listen to the radio with their children.

Id. at 133a.

On November 18, 1993, a panel of the Court of Ap-

peals unanimously struck down Section 16(a)’s indecency

ban as unconstitutional, explaining that it was not “tail-

ored . . . narrowly” to avoid “unnecessary abridgement

of First Amendment rights.” Action for Children’s Tele-

vision v. FCC, 11 F.3d 170, 183 (D.C. Cir. 1993)

(Chief Judge Mikva and Judges Edwards and Wald)

(App. 102a). The full court vacated the panel opinion

and granted en banc review.

On June 30, 1995, the en banc court issued its deci-

sion upholding Section 16(a) in principal part. Action

for Children’s Television v. FCC, 58 F.3d 654 (D.C.

Cir. 1995) (App. la). The court, speaking through

Judge Buckley, accorded considerable deference to Con-

gress’s and the FCC’s determinations as to the constitu-

tionality of the new indecency ban, without requiring the

™ The FCC also claimed an interest in protecting “the right of

all members of the public to be free of indecent material in the

privacy of their homes.” App. 118a (1993 Report and Order).

The Court of Appeals did not rely on this interest.

Hild

ee

wan

al.” Id. at 24a.

tive means

1}a

: ag eis

event, that “adults have alterna

Ht

iii Hf

ity

Bag er Tag Bh gost sagem a 29

ing their interest in indecent materi

any

Ee

, 8o long as it

the government had

broadcasting harms

e down Section 16(a)

of

did not

unconstitutionality, but instead effectively

the government had not given adeq

App. 30a. The court explained that Congress

, however, that the indecency safe

uate

” alternatives. Jd. at 38a, 61a.

16(a) to allow indecency regulation only

SeeiaiPeateatl of 6 dan. ebd 10 pm. Id. The court

proc nn ty oy nd

:

The court held that Section 16(a) was unconstitutional,

however, to the extent that it established an earlier safe

yeh ny Age raemdignenDe aly Aeneid

Four members of the Court of Appeals dissented. Chief

Judge Edwards emphasized that

children,” and thus had not justified its “independent”

harbor could begin as late as midnight

applied to all broadcasters.

offer{ed] no evidence that indecent

less “

2]

in radio programs. See Action for Children’s Television

effort to pressure them to conform to the FCC’s notions

of “decency.” Id.; see id. at 1252 (majority opinion)

(“agree{ing} that the FCC’s implementation of its enforce-

ment scheme is potentially troubling in some respects”).

™? A separate petition for certiorari will be filed in the ACT /V

case.

PUR eTR Pat

ete iliaille ou il

Teele tease (EN

-affu ALT Nia li i

te i if A el fat

HE ie ar gi 33 Ss : a"

lana ana

a a oe

|

|

it seeks to proscribe. Here, given the narrowness

of the safe harbor provided by Section 16(a), such preci-

sion is particularly important.

tions of Calif., Inc. v. FCC, 492 U.S. 115, 126 (1989).

The Court of Appeals recognized that Sable provided the

appropriate First Amendment standard under which Sec-

rather than assessing whether the govern-

ment’s ends were compelling and whether the govern-

ment’s means were narrowly tailored, the court deferred

In explaining how courts are to analyze statutes chal-

lenged on First Amendment grounds, the Court has articu-

when First Amendment rights are implicated.” Turner

Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445, 2471

(1994) (plurality opinion); accord Sable, 492 U.S. at

129; CBS v. Democratic Nat'l Comm., 412 U.S. 94, 103

(1973). “Were it otherwise,” as the Court has explained,

“the scope of freedom of speech and of the press would

be subject to legislative definition and the function of the

First Amendment as a check on legislative power would

be nullified.” Landmark Communications, Inc. v. Vir-

ginia, 435 U.S. 829, 844 (1978); accord Whitney v.

California, 274 U.S. 357, 378-79 (1927) (Brandeis, J.

concurring ).

Hence, in Sable, this Court refused to defer to Con-

gress’s assessment that the government's interest in restrict-

ing children’s access to indecent dial-a-porn would not

adequately be served by anything less than a total ban.

See 492 U.S. at 128. The Court explained that “what-

ever deference is due legislative findings would not fore-

close our independent judgment of the facts bearing on an

issue of constitutional law.” Jd. at 129. The Court ulti-

mately reached its own conclusion—contrary to that of

Congress—as to whether the statute was narrowly tailored

enough to satisfy the First Amendment. /d. at 129-31.

Second, a court cannot allow the government to rest

on “mere speculation or conjecture” in order to justify a

statute restricting speech. Edenfield v. Fane, 113 S. Ct.

1792, 1800 (1993); see Los Angeles v. Preferred Com-

munications, inc., 476 U.S. 488, 496 (1986) (courts

“may not simply assume that [a statute] will always ad-

vance the asserted state interests sufficiently to justify its

abridgement of expressive activity”). Instead, the govern-

ment must “demonstrate that the harms it recites are real

and that its restriction will in fact alleviate them to a

14

material degree.” Edenfield, 113 S, Ct. at 1800; accord

Turner, 114 S. Ct. at 2470 (plurality opinion).

In Edenfield, for example, the Court invalidated a state

—tefferetncrerene Dyed inp aden bare

lic accountants by prohibiting them from

person-to-person solicitation of prospective clients. Whe

Court acknowledged that the government interests ad-

vanced in support of the ban—to prevent fraud or inva-

sion of privacy by CPAs and to assure the independence

of CPAs who audit businesses—were “substantial in the

abstract.” 113 S. Ct. at 1799-1800. But the Court held

that the Board had failed to meet its burden of demonstrat-

ing that CPAs’ solicitation of prospective clients did, in

fact, “create[] the dangers of fraud, overreaching, or com-

promised independence that the Board claims to fear.” /d.

at 1800. The Court stressed that the Board had presented

“no studies.” or even “any anecdotal evidence,” to suggest

that CPA soliciation posed these dangers. /d.; see Rubin v.

Coors Brewing Co., 115 S. Ct. 1585, 1593 (1995) (not-

ing that “[t}he Government did not offer any convincing

evidence” that statute served to advance its interests);

FCC v. League of Women Voters, 468 U.S. 364, 391

(1984) (rejecting government’s asserted interest as “specu-

lative at best”).

Here, in sustaining the 6 a.m.-to-10 p.m. indecency

ban, the Court of Appeals violated both principles. The

court did not exercise its “independent judgment,” but

instead deferred to the judgment of Congress and the

FCC. Sable, 492 U.S. at 129. Nor did the court require

the government to substantiate its need for an indecency

ban as sweeping as that contained in Section 16(a).

It simply accepted the government’s invitation to engage

in “speculation or conjecture” as to whether Section 16(a)

is directed at “real” harms and is narrowly tailored. Eden-

field, 113 S. Ct. at 1800. The court’s departure from

the approach mandated by this Court is reflected in its

treatment of three critical questions.

15

A. The Court Failed To Require Proof Of Any Harm

To Children From “Indecent” Broadcasts.

The Court of Appeals did not require Congress or the

FCC to make any factual showing that children suffer

harm from exposure to broadcasts that, al-

though “indecent,” are not obscene as to either children

or adults. Instead, the court held that Congress could

simply assume that exposure to indecency might cause

“the coarsening of impressionable minds,” without sup-

porting such an assumption with “the testimony of psy-

chiatrists and social scientists” or, apparently, anyone

else. App. 16a-17a. However, in the absence of any

evidence demonstrating that children are, in fact, injured

by exposure to “indecent” broadcasts, the court could

not properly have concluded that “the harms [the gov-

ernment] recites are real.” Edenfield, 113 S. Ct. at 1800.

The court’s analysis was squarely contrary to that em-

ployed by this Court in a long line of cases that includes

Edenfield, Coors, and the Turner plurality opinion.”

16 The Court of Appeals asserted on the basis of Ginsberg v.

New York, 390 U.S. 629 (1968), that “a scientific demonstration

of psychological harm is [not] required in order to establish the

constitutionality of measures protecting minors from exposure to

indecent speech.” App. 14a. The court’s reliance on Ginsberg is

misplaced for several reasons. First, Ginsberg was concerned with

material that was obscene, and thus not constitutionally protected,

as to minors. No suggestion has been made that “indecent” broad-

casts of the sort at issue here are obscene as to either adults or

minors. Second, Ginsberg predated this Court’s decisions in Land-

mark, Sable, and other cases that made clear that “ ‘{d)jeference

to a legislative finding cannot limit judicial inquiry when First

Amendment rights are at stake.’” Sable, 492 U.S. at 129 (quoting

Landmark, 485 U.S, at 84%), Third, whereas the statute in

Ginsberg did not restrict adults’ access to the variably obscene pub-

lications, Section 16(a) restricts adults’ access to “indecent” broad-

casts. A stronger showing of harm is required of the government

in these cireumstances. See, e.g., Sable, 492 U.S. at 128 (govern-

ment must take care’ not to “reduce the adult population . . . to

Fase what is fit for children”) (internal quotations and citations

).

16

The court’s failure to demand evidence of any “real,”

as opposed to merely “speculative,” harm from exposure

to indecent broadcasts was criticized by the four dissent-

ing judges. As Chief Judge Edwards observed:

hen aad dition, tel tae ae

from exposing children, and especiall

any Lg bt seme Cott dc And

suggests that we must our assumptions.

Se yey AE

the impact on children, we have yet to unearth any

ill effects.

App. 55a-56a (Edwards, J., dissenting). He pointed out

that no “evidence of a link between exposure to indecency

and harm to children” had been offered by the congres-

sional sponsors of Section 16(a). Judge Wald similarly

noted that the record contained “no evidence at all of

psychological harm from exposure to indecent programs.”

App. 73a (Wald, J., dissenting).

Indeed, the record contained substantial evidence to the

contrary: a comprehensive analysis of the empirical data

on the subject that was prepared by three nationally rec-

ognized authorities on the psychological effects of tele-

vision and radio. These authorities concluded that the

existing studies do not show that children are affected at

all—much less in a harmful way—by exposure to the

material that the FCC has deemed “indecent” in the

broadcast context.

B. The Court Failed To Require Proof Of Children’s

Exposure To “Indecent” Broadcasts.

The Court of Appeals also failed to require the gov-

ernment to demonstrate that appreciable numbers of chil-

dren would, in fact, watch or listen to “indecent” broad-

casts in the absence of Section 16(a). This showing was

also necessary in order to determine, consistent with this

Court's authorities, whether “the harms [the government]

recites are real.” Edenfield, 113 S. Ct. at 1800. The

reason is obvious: Even if the government’s concerns that

17

children would be harmed by exposure to “indecent”

broadcasts were valid in the abstract, no such harm would

exist if children were not, in fact, viewing or listening to

such broadcasts. See id. (government’s “abstract” con-

cerns about harm are insufficient to justify restrictions on

speech); accord Turner, 114 S. Ct. at 2470 (plurality

opinion ).**

Yet, the court allowed the government simply to rely

on statistics on the number of children in the overall tele-

vision and radio audience. See App. 22a-23a. These sta-

tistics say nothing about how many children—if any at

all—would be watching or listening to “indecent” pro-

grams if they were available. The court did not, for

example, require the government to show that there were

any children at all in the audiences of particular programs

deemed to be “indecent.” Especially given that an 8 p.m.-

to-6 a.m. safe harbor has been in effect since 1989—ever

since the Court of Appeals stayed the 24-hour-a-day in-

decency ban in ACT /]—the government should have

been required to provide such information.

The court sought to excuse the absence of data on the

number of children in the audience for “indecent” radio

or television programs on the supposition that “[cJhildren

will not likely record, in a Nielsen diary or other survey,

that they listen to or view programs of which their parents

disapprove.” Jd. at 23a. But no data were offered by

the government, or otherwise cited by the court, to sub-

stitute the court’s theory that children would falsely deny

watching or listening to such programs."

16 The FCC has acknowledged that broadcasters have supplied

data in individual indecency enforcement proceedings “demonstrat-

fing] that few or no children were likely to have been listening to

their particular station or program when the alleged indecent

material was aired.” App. 184a (1993 Report and Order).

17 The court also contended that “children’s grazing”—that is,

rapidly tuning from station to station—would render station- or

program-specific data on children’s viewing unreliable. App. 23a.

Again, however, the record contains no data establishing that

App. 70a (Wald, J., dissenting); see App. 61a (Edwards,

J., dissenting) (“The Commission presents no program-

specific data of what children watch, despite the existence

of this data.”).

C. The Court Failed To Require Proof That Section

16(a) Is Narrowly Tailored.

The Court of Appeals also failed to require the gov-

ernment to demonstrate that Section 16(a) is “narrowly

drawn” to avoid “unnecessarily interfering with First

Amendment freedoms.” Sable, 492 U.S. at 126 (quota-

tion omitted). Instead, the court expressly stated that

“we defer to Congress’s determination of where to draw

the line” as to which hours to include within the indecency

ban. App. 26a.

This was contrary to the “independent judgment” man-

dated by this Court in Sable of “the facts bearing on an

issue of constitutional law.” 492 U.S, at 129. Indeed,

as in Sable itself, there were “no legislative findings” that

could justify a conclusion that the statute was narrowly

tailored. Id. Section 16(a), like the ban on indecent

“grazing,” to the extent that it occurs at all among children, results

in significant unrecorded exposure to “indecent” programs. See

App. 73a (Wald, J., dissenting) (“There is no evidence . . . that

‘grazing’ is leading to any significant viewing of indecency.”’).

ernment, in accordance with this Court’s authorities, to

demonstrate why a narrower indecency ban would not

suffice. But the court did not demand any such showing.

As Chief Judge Edwards noted:

[T]he Government offers no data on actual parental

supervision, parental preferences, or on the effec-

tiveness of parental supervision at different hours of

the day and night. . . . Without this kind of data,

the Commission’s decision to ban indecent broadcast-

ing during the extensive period here in question is

not narrowly tailored to serve the asserted interest of

facilitating parental supervision.

App. 61a (Edwards, J., dissenting).”

The court did not demand .any showing that, for ex-

ample, problems requiring government intervention had

arisen during the existing 8 p.m.-to-6 a.m. safe harbor.

According to survey evidence submitted in the FCC rule-

making on Section 16(a) and included in the record

below, 98% of persons under 18 are with parents or

other adults, at school, or asleep during that period. Yet,

the court did require the government to show that adult

supervision, as opposed to official censorship, was inade-

quate to shield young people from “indecent” broadcasts

18 The Court of Appeals held on two prior occasions that the FCC

had to accumulate these sorts of data in order to justify the scope

of its indecency regulation. See ACT 11, 982 F.2d at 1510; ACT I,

852 F.2d at 1341-83. The FCC never conducted the “full and fair”

hearing directed by those cases.

teenagers are at school.” Indeed, the court conceded

that “during school hours . . . children are presumably

subject to strict adult supervision,” but held that the First

Aside from whether the decision below accords too

much deference to Congress with respect to the constitu-

tionality of a broad indecency ban, the Court should

consider whether the decision accords too little defer-

ence in effectively rewriting Section 16(a), which was

a task “properly left to Congress.” United States vy.

National Treasury Employees Union, 115 §S. Ct. 1003,

1019 (1995). After concluding that Section 16(a)

was unconstitutional to the extent that certain public

broadcasters were allowed to present “indecent” material

beginning at 10 p.m., the Court of Appeals did not strike

down Section 16(a) as unconstitutional, but instead re-

wrote the statute to allow all broadcasters to air “in-

decent” material at 10 p.m. In so doing, the court again

acted contrary to this Court’s decisions, which have em-

The survey evidence demonstrated, for example, that more

than 99% of all persons under age 18 are with parents or other

adults, asleep, or at school throughout the morning “drive-time”

hours of 6 a.m. to 10 a.m.

* The court also observed that “(t]he Government’s concerns,

of course, extend to children who are too young to attend school.”

App. 25a. But no showing was made that parental supervision

would be inadequate for such young children.

21

phasized that the judiciary has no “license . . . to rewrite

language enacted by the legislature.” United States v.

Albertini, 472 U.S. 675, 680 (1985); accord National

Treasury Employees Union, 115 S. Ct. at 1019 & n.26.™

II. THE COURT OF APPEALS’ EVALUATION OF THE

COMPETING INTERESTS IMPLICATED BY SEC-

TION 16(a) CONFLICTS WITH DECISIONS OF

THIS COURT.

In identifying and balancing the competing govern-

mental and private interests implicated by Section 16(a),

the decision below departs from the decisions of this

Court in three critical respects. Each of these departures

warrants this Court’s review.

A. The Court Of Appeals’ Recognition Of An Inde-

pendent Government Interest In Protecting Chil-

dren From Indecency Conflicts With Pacifica And

Ginsberg.

The Court of Appeals held that Section 16(a) was

justified, in part, by “the Government’s own interest in

the well-being of minors.” App. 12a. But such an in-

terest cannot be reconciled with the decisions of this

Court

This Court has repeatedly recognized “the liberty of

parents and guardians to direct the upbringing and edu-

cation of children under their control.” Pierce v. So-

ciety of Sisters, 268 U.S. 510, 53435 (1925); accord

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

Nebraska, 262 U.S. 390 (1923). This includes parents’

ability to decide whether, or when, their children may

have access to material on sexual topics. Hence, in Gins-

berg v. New York, 390 U.S. 629 (1968), which upheld

a state statute that prohibited the sale to minors of any

publication that was deemed obscene as to them, the

Court explained that the statute served to “aid discharge”

21 See also Commodity Futures Trading Comm'n v. Schor, 478

U.S. 833, 841 (1986).

22

of parents’ “primary responsibility for children’s well-

being.” Jd. at 639. The Court emphasized that the

statute “does not bar parents who so desire from pur-

chasing the magazines for their children.” /d.; accord

Bolger v. Youngs Drug Products, 463 U.S. 60, 74 (1983).

The Court’s concededly “narrow[]” decision in Pacifica,

which held that the FCC could constitutionally regulate a

midday broadcast of George Carlin’s “Filthy Words” mon-

ologue, does not suggest an independent government in-

terest in protecting children. The Court repeatedly noted

that the Carlin monologue had been broadcast in the early

afternoon—a time when unsupervised children might be

expected to be in the audience—and that the FCC had

not foreclosed “indecent” broadcasts during the evening

hours. See, e.g., 438 U.S. at 729, 732 & n.5, 750 & n.28.

Indeed, Justices Powell and Blackmun, who were essen-

tial to the five-member majority, emphasized that the gov-

ernment’s “primary concern was to prevent the broadcast

from reaching the ears of unsupervised children who were

likely to be in the audience at that hour.” Jd. at 757

(Powell, J., concurring) (emphasis added). They found

guidance in Judge Leventhal’s “thoughtful” dissenting

opinion in the Court of Appeals. /d. & n.1 (citing Pa-

cifica Foundation v. FCC, 556 F.2d 9, 32-35 (D.C. Cir.

1977) (Leventhal, J., dissenting), rev'd, 438 U.S. 726

(1978)). Judge Leventhal squarely recognized that the

government's interest in regulating indecent broadcasts is

to give “the family . . . the means to make th{e] choice”

whether children are exposed to them. 556 F.2d at 33.

He suggested that indecency regulation could not be so

easily justified “when the time of broadcast is such that

the great preponderance of children are subject to pa-

rental control.” Jd. at 36.

There is thus a fundamental inconsistency between this

Court’s decisions and the decision below with frespect to

the governmental interest that may justify the FCC’s reg-

ulation of “indecency” on television and radio.

eu Ste

cea Wiel plait ey

i? = Tran =f a i

LEE ia Hi F a. 78 . REE

ils mnie Hie. Hi He F

7 titi LEAT

ht ink) 282s 1 : cet

AHH een Et iff atta

SEs

JP

al

THE as*

: Pat Hoe ie

val il i it

i: liiel | iH i

Uae glai fut ily

ae aaah nl it

ie ee aitdhal!

eg WEP italy | li

EBD ci] pane i 1

Splipe wi [ule Hetite

tains it tite ; dle yy We

Caifeesrnute dtietanitne ut

SHEE feel i lil tant ln

HBL He HT rE: fant entalscanilalé

26

cent” material on television and radio during the evening

hours. See id. at 750 n.28, 760."

Ii. IN HOLDING THAT THE FCC’S DEFINITION OF

“INDECENCY” IS NOT UNCONSTITUTIONALLY

VAGUE, THE COURT OF APPEALS’ DECISION

CONFLICTS WITH DECISIONS OF THIS COURT.

Court in Pacifica “ ‘dispelled any vagueness concerns at-

tending the [Commission’s} definition.” /d. (quoting

ACT Il, 932 F.2d at 1508); accord ACT I, 852 F.2d

at 1339. The court's treatment of the vagueness issue re-

flects a misunderstanding of this Court’s authorities.

Pacifica was concerned only with the FCC’s specific

g.

3

z

e

:

z

i

:

3

HAE my ETE

it Ef se % aHE Hae

3 th : i it bia i

fae Hat

Ha Lae ee i

au MH ETT is

THAI (nish Et i

S. 6 ,

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

has repeatedly struck down statutes that sought to regulate

sexually explicit speech as unconstitutionally vague. For

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

nothing to make it more precise, the Court explained that

“[tJhe distributor is left to speculate whether the Com-

mission considers his publication obscene or simply harm-

ful to juvenile morality.” Id. at 71. And in Rosenfeld v.

New Jersey, 408 U.S. 901 (1972), the Court summarily

vacated and remanded a conviction under a disorderly

persons statute that prohibited the use of “offensive,”

“profane,” or “indecent” language in a public place.”

The Court has not made clear whether the same vague-

ness standards apply to the electronic media. The federal

courts of appeals are divided on the subject. The Tenth

Circuit has upheld a district court’s determination that a

state statute prohibiting “indecent material” on cable tele-

27 See also, ¢.g., Brown v. Oklahoma, 408 U.S. 914 (1972) (sum-

marily vacating and remanding conviction under statute barring

“any obscene or lascivious language or word in any public place

or in the presence of females”); Lewis v. City of New Orleans,

408 U.S. 913 (1972) (summarily vacating and remanding convic-

tion under breach of peace statute prohibiting wantonly cursing,

vision was “ ‘unconstitutionally overbroad and vague.’”

Jones v. Wilkinson, 800 F:2d 989, 990 (10th Cir. 1986)

(per curiam) (quoting Community Television of Utah,

Inc. v. Wilkinson, 611 F. Supp. 1099, 1117 (D. Utah

1985)), aff'd mem., 480 U.S. 926 (1987). Two circuits

burgh, 938 F.2d 1535, 1541 (2d Cir. 1991), cert. denied,

502 U.S. 1072 (1992); Information Providers’ Coalition

for Defense of First Amendment v. FCC, 928 F.2d 866,

875 (9th Cir. 1991).™

The Court should grant certiorari in order to consider

whether the FCC’s regulation of broadcast indecency,

under a definition that the Court of

previously

to be “inherent{ly]” vague, ACT 1, 852 F.2d

at 1344, can be reconciled with Bantam Books and simi-

especially given the narrow safe harbor sus-

tained by the court below

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

Of Counsel Timorny B. Dx

Sam ANTAR (Counsel of Record )

WWetthien. Jones, DAY, Reavis & Pocur

New York, New York 10023 1450 G Street, N.W

Howagp F. Jagckm. Washington, D.C. 20005

(202) 379-8989

CBS INc.

51 West 52nd Street Counsel for Petitioners and

New York, New York 10019 Capital Cities/ ABC, Inc. and

CBS Ine. .

28 See also United States v. Evergreen Media Corp. of Chicago,

832 F. eae ae (N.D. Ti. 1998) (rejecting vagueness

HENRY GELLER

1776 K Street, N.W.

Suite 900

Washington, D.C. 20006

Counsel for Action for

Children’s T elevision

MARJORIE HEINS

182 West 48rd Street

New York, New York 10036

Counsel for American Civil

Liberties Union

JAMES PoPHAM

1200 18th Street, N.W.

Washington, D.C. 20006

Counsel for Association of

Independent Television

Stations, Inc.

MOLLY PAUKER

5151 Wisconsin Avenue, N.W.

Washington, D.C. 20016

Counsel for Foz Television

Stations, Inc.

East Brunswick, N.J. 08816

Counsel for Greater Media, Inc.

STEVEN A. LERMAN

DENNIS P. CoRBETT

LEVENTHAL, SENTER & LERMAN

2000 K Street, N.W.

Washington, D.C. 20006

Counsel for Infinity

Broadcasting Corporation

Fritz E. ATTAWAY

1600 Eye Street, N.W.

Washington, D.C. 20006

Counsel for Motion Picture

Association of America, Inc.

HENRY L. BAUMANN

STEVEN A. BOOKSHESTER

1771 N Street, N.W.

Washington, D.C. 20086

Counsel for National

Association of Broadcasters

30

STEPHEN NEVAS

DEenisse B. LEARY

635 Massachusetts Avenue, N.W.

Washington, D.C. 20001

Counsel for National Public

Radio

ANDREW JAY SCHWARTZMAN

Media Access Project

2000 M Street, N.W.

Washington, D.C. 20036

ELLIOT MINCBERG

2000 M Street, N.W.

Washington, D.C. 20036

Counsel for People for the

American Way

ROBERT BRANSON

3 Constitution Plaza

Hartford, Connecticut 061038

Counsel for Post-N ewsweek

Stations, Inc.

PAULA A. JAMESON

NANCY H. HENDRY

1820 Braddock Place

Alexandria, Virginia 22314

Counsel for Public

Broadcasting Service

J. LAURENT SCHARFF

REED SMITH SHAW & McCLAY

1301 K Street, N.W.

Washington, D.C. 20005

Counsel for Radio-T elevision

News Directors Association

JANE E. KIRTLEY

1101 Wilson Boulevard

Suite 1910

Arlington, Virginia 22209

Counsel for The Reporters

Committee for Freedom

of the Press

Bruce W. SANFORD

HENRY 8S. HOBERMAN

RoBert D. LysTaD

BAKER & HOSTETLER

1060 Connecticut Avenue, N.W.

Suite 1100

Washington, D.C. 20086

Counsel for Society of

Professional Journalists

‘*-