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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995

## Text

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.

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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.

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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

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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.

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Counsel for Action for
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30

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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

‘*-

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0655%3A1. Public record. Not legal advice.