Amicus Curiae Brief — Reno v. American Civil Liberties Union
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RS
No. 96-511
oo ae eee ee
IN THE
Supreme Court of the Gnited States
OCTOBER TERM, 1996
JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES,
ET AL..,
Appellants,
v.
AMERICAN CIVIL LIBERTIES UNION, ET AL..
Appellees.
On Appeal from the United States District Court for the
Eastern District of Pennsylvania
BRIEF OF PLAYBOY ENTERPRISES, INC. AS
AMICUS CURIAE IN SUPPORT OF APPELLEES
Of Counsel:
BURTON JOSEPH
BARSY, JOSEPH &
LICHTENSTEIN
134 North LaSalle Street
Chicago, Illinois 60602
(312) 346-9270
* Counsel of Record
ROBERT CORN-REVERE*
CHRISTOPHER S. YOO
HOGAN & HARTSON L.L.P.
555 Thirteenth Street, N.W.
Washington, D.C. 20004-1109
(202) 637-5640
Counsel for Playboy Enterprises,
Inc.
—
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Il.
TABLE OF CONTENTS
COMPUTER COMMUNICATION IS ENTI-
TLED TO FULL FIRST AMENDMENT PRO-
INTL re re Ooh ne
THE CDA UNCONSTITUTIONALLY
ABRIDGES PROTECTED SPEECH AND THE
INDECENCY STANDARD IS COMPLETELY
Sane aisiihiiettiatdaiciiatinicicaniteaiiatanisitaiintestsmeanas
A. The Indecency Standard Is the Reincarna-
tion of the Hicklin Rule in American Law. ....
1. The Lack of a Constitutionally Sound
Test for Obscenity and Indecency His-
torically Led to the Routine Suppres-
sion of Serious Literary Works................
2. The Indecency Standard Is the Func-
tional Equivalent of Hicklin.....................
B. The Indecency Standard Is Unconstitu-
a
1. The Government and Supporting
Amici Demonstrate the CDA’s Vague-
SiNUENIe ctunencnscenseddensanennecessosncocntccecscctesoseesesons
12
13
17
22
ii
TABLE OF CONTENTS -- Continued
2. Experience with Indecency Enforce-
ment Demonstrates the Standard’s
Vagueness and Overbreadth................0.++:
CONCLUSION ..ccccccscssssscscecsnsesersosssessonscestessoonssosssonencssnners
TABLE OF AUTHORITIES
Cases:
ACLU v. City of Chicago, 121 N.E.2d 585 (Ill. 1954),
appeal dismissed, 348 U.S. 979 (1955) .......cccccccccceees
ACLU v. Reno, 24 Media L. Rep. (BNA) 1795 (E.D.
cc ee
Action for Children’s Television v. FCC, 852 F.2d
IES GREED cicensncnnsconsssnsenanscenmenssesnecsescceseess
Action for Children's Television v. FCC, 932 F.2d
1504 (D.C. Cir. 1991), cert. denied, 503 U.S. 913
Action for Children's Television v. FCC, 58 F 3d 654
(D.C. Cir. 1995), cert. denied, 116 S. Ct. 701
Action for Children's Television v. FCC, 59 F.3d
1249 (D.C. Cir. 1995), cert. denied, 116 S. Ct. 773
Alliance for Community Media v. FCC, 56 F.3d 105
(D.C. Cir.), rev ‘d in part and aff'd in part sub nom.
Denver Area Educ. Telecomms. Consortium v.
Ee
American Booksellers Ass'n v. McAuliffe, 533
EEE
American Booksellers Ass'n v. Superior Ct., \8\ Cal.
Rptr. 33 (Ct. App. 1982).............0.00. |
American Booksellers vy. Webb, 919 F.2d 1493 (1 ith
Cir. 1990), cert. denied, 500 U.S. 942 (1991)...
Attorney Gen. v. Book Named “God's Little Acre’.
93 N.E.2d 819 (Mass. 1950) .............ccccccceccccccceeeeceeees |
Baggett v. Bullitt, 377 U.S. 360 (1964) oe
Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963)......
Bella Lewitzky Dance Found. v. Frohnmayer, 754 F.
SE ERNIE, GPE cnccesscssensseccesssesrsqsnssecsscesers
(iii)
iv
TABLE OF AUTHORITIES -- Continued
Page
Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675
a n 23
Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60
(FD i cccocsesesessecesesczerscssezsscunssscsseccsncsnnessssssnasassnsessenessees 9
Book Named “John Clelan’s Memoirs of a Woman of
Pleasure” v. Massachusetts, 383 U.S. 413 (1966)...... 13
Butler v. Michigan, 352 U.S. 380 (1957) .........-.c.0-0eee0e 16
Carlin Communications, Inc. v. FCC, 837 F.2d 546
(2d Cir.), cert. denied, 488 U.S. 924 (1988) ............... 21
City of Houston v. Hill, 482 U.S. 451 (1987) ..........000000 20
City of Lakewood v. Plain Dealer Publ’g Co., 486
OU 20
City of Los Angeles v. Preferred Communications,
Bae, SRB UD, GBB CIGGED ncccerccscsersscrssssnsssscessesszsszscnssee 9
Cohen v. California, 403 U.S. 15 (1971)......c.cccceesereeees 22
Commonwealth v. Friede, 171 N.E. 472 (Mass. 1930) .. 15
Community Television, Inc. v. Wilkinson, 611 F.
Supp. 1099 (D. Utah 1985), aff'd sub nom. Jones v.
Wilkinson, 800 F.2d 989 (10th Cir. 1986), aff'd
mem. 480 U.S. 926 (1987) .........cc.ccecceeeseeereneneneeenernenes 22
Cramp v. Board of Pub. Instruction, 368 U.S. 278
(| 19
Denver Area Educ. Telecomms. Consortium v. FCC,
yyy 11, 12, 22, 27
Erznoznik vy. City of Jacksonville, 422 U.S. 205
a 13, 18, 22, 26
Evergreen Media Corp. v. FCC, Civ. No. 92 C 5600
CO yy 21
FCC v. Pacifica Found., 438 U.S. 726 (1978) ............+. passim
EE OS ee ce NE
~_——ee me we
Vv
TABLE OF AUTHORITIES -- Continued
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) .... 20
Forsyth County v. Nationalist Movement, 505 U.S.
SR Re 20
Freedman v. Maryland, 380 U.S. 51 (1965) ceo... 8, 13
Gelling v. Texas, 343 U.S. 960 (1952) ....cccccceceoeoeeeeeese 19
Gentile v. State Bar, 501 U.S. 1030 (1991) .....ccccccooessev» 19, 20
Gillett Communications v. Becker, 807 F. Supp. 757
(N.D. Ga. 1992), appeal dismissed mem., 5 F 3d
Ee 28
Gooding v. Wilson, 405 U.S. 518 (1972) ......ccccccccceceeeoen 22
Grayned v. City of Rockford, 408 U.S. 104 (1972)......... 19
Grove Press, Inc. v. Christenberry, 276 F.2d 433 (2d
ith: TE hincncenstenestinsianinsthiatnntahictientsaisiansinietatacreninniimemsigtas 16
Hamling v. United States, 418 U.S. 87 (1974) .....000000.. 13
Holmby Prods., Inc. v. Vaughn, 350 U.S. 870 (1955)... 19
Hynes v. Mayor of Oradell, 425 U.S. 610 (1976)........... 19
Illinois Citizens Comm. for Broad. v. FCC, 515 F.2d
ee 18
Information Providers’ Coalition for Defense of First
Amendment v. FCC, 928 F.2d 866 (9th Cir. 1991)...... 21
Interstate Circuit, Inc. v. City of Dallas, 390 U.S.
OPT TEEIEisitinsiiatuatinneinsieeeniiihimibatbiipiennsacanianasians 19, 20
Jenkins v. Georgia, 418 U.S. 153 (1974)... 24, 25, 26
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)..... 8, 19
Kingsley Int'l Pictures Corp. v. Regents, 360 U.S.
eee 25
Kois v. Wisconsin, 408 U.S. 229 (1972) ........ccccccccceoeeoees 26, 28
Kolender v. Lawson, 461 U.S. 352 (1983) .........0ccc00000. 20, 28
vi
TABLE OF AUTHORITIES -- Continued
Kovacs v. Cooper, 336 U.S. 77 (1949) ......ccccccccceeseeeeenes
Lewis v. City of New Orleans, 415 U.S. 130 (1974).......
Manual Enters., Inc. v. Day, 370 U.S. 478 (1962)..........
Miami Herald Pubi'g Co. v. Tornillo, 418 U.S. 241
Miller v. California, 413 U.S. 15 (1973) .....ccccccccceeeeeees
Mutual Film Corp. v. Industrial Comm'n, 236 U.S.
Ee
New York v. Ferber, 458 U.S. 747 (1982) .........cccccccceee
Papish v. Board of Curators, 410 U.S. 667 (1973).........
Penthouse Int'l v. McAuliffe, 610 F.2d 1353 (Sth
Cir.), cert. dismissed, 447 U.S. 931 (1980) .................
People v. Dial Press, 48 N.Y.S.2d 480 (Magis. Ct.
| RAE ALL LER AOD ES ET
People v. Friede, 233 N.Y.S. 565 (Magis. Ct. 1929)......
People v. Seltzer, 203 N.Y .S. 809 (Sup. Ct. 1924).........
People v. Viking Press, Inc., 264 N.Y.S. 534 (Magis.
NR TS 5 A
Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969)........
Regina v. Hicklin, 3 L.R.- Q.B. 360 (1868)...
Roth v. United States, 354 U.S. 476 (1957)...
Rushia v. Town of Ashburnham, 582 F . Supp. 900 (D.
Smith v. Goguen, 415 U.S. 566 (1974) ......cccccccceeeceneees
Southeastern Promotions, Lid. v. Conrad, 420 U.S.
vii
TABLE OF AUTHORITIES -- Continued
Page
Speiser v. Randall, 357 U.S. 513 (1958) ........ccccccccceceeee 20
Films, Inc. v. Department of Educ., 346
Ss IIT STII sostninsietaineeanteiesiatemetneenennmneiaenimetan 19
Thornhill v. Alabama, 310 U S. 88 (1940) .00...0.....00..... 20
Turner Broad. Sys, Inc. v. FCC, 512 U.S. 622 (1994).... 9, 10
United States v. Kennerley, 209 F. 119 (S.D.NLY.
RE ARE ae CS EE en SN 16
United States v. Levine, 83 F.2d 156 (2d Cir. 1936)...... 16
United States v. One Book Entitled Ulysses, 72 F.2d
RE 16
United States v. Paramount Pictures, Inc., 334 U.S.
CL s
United States v. Two Obscene Books, 99 F. Supp. 760
(N.D. Cal. 1951), aff'd sub nom. Besig v. United
States, 208 F.2d 142 (9th Cir. 1953)........ccccccccccceeceeees 15
Vance v. Universal Amusement Co., 445 U.S. 308
ee 13, 20
Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489 (1982) ........cccccceccceecceeeeeeees 17,19
Virginia v. American Booksellers Ass'n, 484 U.S.
SUIT cciidihiniterntinbiciteatepanaipepiantbbiniemduenpnenettitee 14
Winters v. New York, 333 U.S. 507 (1948)..................... 19
Statutes:
Telecommunications Act of 1996, § 506, 47 U.S.C.
OID ili dictiibeti ed loneiit aia htniattadecantidhactiningitiapelademiensanepacnts 26
ee 26
ee 13
Vill
TABLE OF AUTHORITIES -- Continued
Page
Legislative Materials:
138 Cong. Rec. $646 (daily ed. Jan. 30, 1992).............. 26
141 Cong. Rec. $8330 (daily ed. June 14, 1995)............ 4
143 Cong. Rec. $1355 (daily ed. Feb. 13 1997..............
Administrative Proceedings:
En Banc Programming Inquiry, 44 F.C.C. 2303
Siac ae et te EE OAT NT 25, 26
Enforcement of Prohibitions Against Broadcast Inde-
cency in 18 USC. § 1464, 5 FCC Red. 5297
(1990), rev ‘d on other grounds sub nom. Action for
Children’s Television v. FCC, 932 F.2d 1504 (D.C.
Cir. 1991), cert. denied, 503 U.S. 913 (1992).............. 18
Implementation of Section 10 of the Cable Consumer
Protection and Competition Act of 1992, 8 FCC
a, CE Ce ccctntsnessnsnctemnapensigantinninnasinipeniones 18
Infinity Broadcasting Corp., 3 FCC Red. 930, 932
(1987), rev'd on other grounds sub nom. Action for
Children 's Television v. FCC, 852 F.2d 1332 (D.C.
CR, Bee encrenancunisinnupenrsnamtisnttianataiianee 18
Kansas City Television, Lid, 4 FCC Red. 7653
iri ntantarnratdenetentesitneianienmmedemnditaibeenannelicmenen 24
KLOL(FM), 8 FCC Red. 3228 (1993)........:ccccccceeeeeeneenee 26
Letter to Merrill Hansen, 6 FCC Red. 3689 (1990) .. 26, 27, 28
Letter to Mr. Peter Branton, 6 FCC Red. 610 (1991),
petition for rev. dismissed, 993 F.2d 906 (D.C. Cir.
1993), cert. denied, 114 S. Ct. 1610 (1994)... 27, 28
William J. Byrnes, Esq., 63 Rad. Reg. 2d (P&F) 216
(Mass Media Bureau 1987) ...............cccccccceeererceeeeeeseees 26
ix
TABLE OF AUTHORITIES -- Continued
Page
WIOD(AM), 6 FCC Red. 3704 (1989) .0......cccccccceceeeeeeees 18
WVIC-FM, 6 FCC Red. 7484 (1991) ......ccccccccceceseceeesnees 26
Other Authorities:
Margaret A. Blanchard, The American Urge to Cen-
sor: Freedom of Expression Versus the Desire to
Sanitize Society From—Anthony Comstock to 2
Live Crew, 33 Wm. & Mary. L. Rev. 741 (1992)........ 8, 15
Robert Corn-Revere, New Age Comstockery, 4
CommLaw Conspectus 173 (1996) ...........ccccccceeeeeeees 25
Robert Corn-Revere, New Technology and the First
Amendment: Breaking the Cycle of Repression, \7
Sy I actircnineerennnisetencennbtatpesantstcenteenes 7
Edward de Grazia, Girls Lean Back Everywhere
Se iintictinctanapengsimntniepdttiernsenmiatvinemeniatnememeentes 14, 15, 16
FCC News Release, “KZKC(TV), Kansas City, MO,
Apparently Liable for $2,000 Fine for Indecent
gg 24
Final Report, The Attorney General’s Commission
on Pornography (1986) ...........ccccccccsseereeeereseeseereeeeenees 4,14
Craig Hosoda, The Bare Facts Video Guide (1995)....... 25
M. Ethan Katsh, The First Amendment and Techno-
logical Change: The New Media Have a Message,
57 Geo. Wash. L. Rev. 1459 (1989) .0........cccceceeseeee 7,11
Ithiel de Sola Pool, Technologies of Freedom (1983).... 10, 11
Frederick F. Schauer, The Law of Obscenity (1976) ...... 14, 15
Rodney Smolla, Free Speech in an Open Society
Eee a 11
Laurence H. Tribe, American Constitutional Law (2d
Gi, GR ccrentecrcincttaitnnnterenetnnsnteanitarrentemstnaiienccnn 11
x
TABLE OF AUTHORITIES -- Continued
Page
Laurence H. Tribe, The Constitution in Cyberspace:
Law and Liberty Beyond the Electronic Frontier,
Keynote Address at the First Conference on Com-
puters, Freedom & Privacy (Mar. 26, 1991)................ 7
IN THE |
Supreme Court of the Anited States
OCTOBER TERM, 1996
No. 96-511
JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES,
ET AL.,
Appellants,
v.
AMERICAN CIVIL LIBERTIES UNION, ET AL.,
Appellees.
On Appeal from the United States District Court for the
Eastern District of Pennsylvania
BRIEF OF PLAYBOY ENTERPRISES, INC. AS
AMICUS CURIAE IN SUPPORT OF APPELLEES
INTEREST OF AMICUS CURIAE'
Playboy Enterprises, Inc. (“PEI”) is a Delaware corporation
with its main offices in Chicago, Illinois. Among other
commercial endeavors, PE] publishes Playboy magazine and
' The parties have consented to the submission of this brief.
Their letters of consent have been filed with the Clerk of this
Court.
* The Playboy website is located at http://www.playboy.com.
(1)
2
Playboy magazine is an award-winning publication, con-
taining fiction; interviews with noted figures in politics,
sports, government, entertainment, business and arts;
artwork by noted artists; and pictorials of beautiful women.
Playboy is the number one men’s magazine in the world,
outselling rival publications in the United States such as GO
and Esquire by more than four to one. In 1993-95, for
example, Playboy’s circulation exceeded those of major
magazines such as Newsweek, Smithsonian, Sports Illus-
trated, U.S. News and World Report, GQ, Esquire, and
Rolling Stone combined.’
Papo. averages 199 pages per month. About 29
or roughly 15 percent, typically contain photographs of nude
or partially clothed women. Most of Playboy’s pages contain
articles and other material directed at men’s interests such as
current affairs, health, and sports. Approximately 25 percent
of Playboy magazine is devoted to items of general interest,
approximately 18 percent to culture or the humanities, 16
percent to amusements (incl personalities or issues
related to the screen, theater, television, or radio), nine
percent to national and international affairs, seven percent to
fiction, seven percent to apparel and grooming, six percent to
sports and recreation, and the balance to home furnishings,
food, health, and business.
Playboy is well known for its publication of fine fiction.
The list of authors who have contributed fiction and other
articles to Playboy includes Margaret Atwood, Gabriel
Garcia uez, Doris Lessing, David Mamet, Erica Jong,
William F. Buckley, Jr., John LeCarre, Saul Bellow, Isaac
Asimov, Justice William O. Douglas, Graham Greene,
Norman Mailer, T. Coraghessan Boyle, and John Steinbeck.
Playboy is also well known for its publication of in-depth
interviews with figures from the worlds of politi > 7a,
prance dgeerhe <mandiry oh Abney 3 od om The list of
Playboy’s interview subjects includes Jimmy Carter, Martin
Luther King, Jr., Lech Walesa, Barbara Streisand, Yasser
Arafat, the Jesse Jackson, James Carville, Andrew
> Playboy's guaranteed U.S. rate base is 3,150,000 copies sold.
With 15 international editions, Playboy’s worldwide monthly
readership is estimated at 15 million.
3
Young, Billie Jean King, Michael Jordan, Candice Bergen,
and Whoopi Goldberg.
Playboy's textual content has won many awards for excel-
lence. For example, Playboy has been awarded the distin-
National Magazine Award “for excellence in fic-
tion,” er ee anes oe, yom: ty Se
American Society Rate ewe j mele Ieagy gee pa
the Columbia Unt 1 of Journalism, as well as the
Netlonsl Canliaunas of Cintelions and loos’ Custillows af
Recognition. In addition, the artwork published ia Playboy
has received hundreds of oa including 194
awards from The Society of Pub lei 19 Gold
Medals from The Society of Illustrators, and 23 Silver
Medals from the Art Directors Club of New York/The One
Show. Playboy has lished the work of such artists as
Andy Warhol, Keith Haring, and LeRoy Neiman.
PEI’s website reflects the same editorial philosophy and
content as Playboy magazine. By late 1996, the website
encompassed more than 700 pages, providing visitors with
excerpts from current and historic issues of Playboy mags-
zine, plus schedules for Playboy Television. The Playboy
website is supported by advertising revenues. In addition,
Playboy offers an online version of the Playboy catalog,
which offers branded merchandise for purchase.
a ae oe a: oe eguaee
an individual’s right or to view.
Accordingly, Ae oupest to its pe An Playboy y
supports the various private-sector initiatives that « y
wang ge ndeag aoe , parti y
parents, to b i nt ae
unsuitable for their particular Accordingly, the
Playboy website is registered with RSACi, and access can be
blocked from any household that employs screening soft-
ware.
* The Recreational Software Advisory Council developed a
rating system for the Internet that permits individuals to tailor
their content for newsgroups, FTP sites and the World
Wide Web. can set various tolerance levels (on a | to 4
sankis ta Gee coteenniion off cishenbe, anemeah, walle a8 ox. The
software is PICS compatible and can be set to block unrated sites.
3
Playboy magazine, special issues, its videos, and its
Se come fitiy see ad eal atin.
n over forty years o ishing , Playboy never been
judged “obscene,” ic,” or “harmful to minors” in
any federal, state or | jurisdiction. The Attorney Gen-
eral’s Coramission on Pornography (“Meese Commission”)
thet “feb individuals, or society,” and pointed out
“[t}he true industry is quite ly different
m and separate from the that blishes ‘men’s’
industry pub
magazines.”’ The Commission acknowledged that “[flederal
courts have serious value contained in Playboy maga-
zine,” and characterized “{a}ttempted and unsuccessful
actions * * * against P. yy Magazine in Atlanta and
several other places” as “mistakes.”
Despite these facts, PEI’s website is threatened by the
Communications Decency Act (“CDA”). Not only did the
CDA’s congressional sponsors make clear that they intended
to catch Playboy in their net,* such a broad intention has been
understood and applied by the Act’s enforcers’ and is cur-
—— al
* See Final Report, The Attorney General’s Commission on
Pornography 284, 348 (1986) [hereinafter “Meese Commission
. The Commission reported that “excessively broad terms
like ‘pornography’ or ‘sexually explicit materials’ are just too
encompassing to reflect the results of our inquiry,” id. at 320, and
noted that “we could envision aesthetically-posed, air brushed
photographs of beautiful men or women in a provocative context.
provocation derives from the of sex to attract the
attentions and stir the passions of all of us. Such materials may
have, in most uses, little negative effect on individuals, families,
or society.” Jd. at 348.
° Id. at 1289 (citing Pentn use Int'l v. McAuliffe, 610 F.2d 1353
(Sth Cir.), cert. dismissed, 447 U.S. 931 (1980)).
” Id. at 271.
* 141 Cong. Rec. $8330 (daily ed. June 14, 1995) (statement of
Sen. Exon) (“I am not talking just about Playboy and Penthouse
a By comparison, those magazines pale in offensiveness
ith the other things that are readily available.” (emphasis
added)).
* The court below ordered the government to cease any
“review” or “investigation” of images purportedly taken from a
5
rently being defended by the Solicitor General.'® Just last
week, a Senate sponsor of the CDA told Congress that the
law was necessary to proscribe a broad range of speech,
including “glimpses of * * * Playmates” on the Playboy
— Consequently, PEI has a vital stake in the outcome
of this case.
SUMMARY OF ARGUMENT
The First Amendment is predicated on the principle that the
essential remedy to “bad” speech is not censorship, but more
speech. In its defense of the CDA, however, the government
asserts that control over the Internet is needed because
“millions of people disseminate information * * * without the
intervention of editors, network censors, or market disincen-
tives.” llants’ Br. at 32. As Judge Dalzell correctly
wrote in decision below, “[t]his argument is profoundly
repugnant to First Amendment principles.” App. 142a.
izing that Internet communication is precisely the
ind of speech that the First Amendment was intended to
protect, the court below correctly held that it should receive
the same degree of protection under First Amendment as
other forms of core speech. Ever since the printing press was
invented, new communications technologies have been
viewed as a threat to society and to those in power. As a
Com e database that it characterized as “analogous to
hole Penthouse centerfolds.” ACLU v. Reno, 24 Media L.
Rep. (BNA) 1795 (E.D. Pa. May 15, 1996). The government took
the position at that time that “a Playboy centerfold appeals to the
prurient interest,” id. at 1797, and that the materials it presented at
trial in the Schmidt notebook (which at Tab 42 included images
taken from the il 1996 issue of Playboy magazine) were
“indecent” within the CDA’s terms, id. at 1797 n.2.
° See Appellants’ Br. at 20 (images in “soft-porn” magazines
“almost always would be covered”); id. at 33 (Schmidt notebook
Bn gpa d illustrates the dimensions of the problem”); id. at 43
(CDA indecency restrictions are “similar to the R-rating for
movies”).
"143 Cong. Rec. $1355, $1356 (daily ed. Feb. 13, 1997)
(statement of Sen. Coats). This assertion appears to conflict with
the definition of “indecency” advocated by congressional amici.
See infra pp. 22, 26.
6
result, innovation always has invited censorship. The Fram-
ers, however, recognized that the political debate made
the press in the First Amendment, thus denying the govern-
ment the power to censor any and all new of speech.
Although this Court has in the past lied differing levels of
protection to various media upon their particular
characteristics, it has over time recognized that the basic
princi les of the First Amendment should be the rule, regard-
less of the technical details of the various media. The lessons
from this long period of experimentation should be applied
here.
Additionally, this Court should affirm the decision below
because the indecency standard is vague and: antithetical to
First Amendment values. Contrary to the government's
indecency standard effectively reprises the worst portions of
the old, discredited obscenity standard: unlike the current
average community member, pays no attention to literary
works “as a whole,” and i
consider serious merit. or that reason, experience with the
i decency standard demonstrates that it intrudes too deeply
into First Amendment values to be sustained.
ARGUMENT
I. COMPUTER COMMUNICATION IS ENTITLED
TO FULL FIRST AMENDMENT PROTECTION.
The court below concluded that the CDA must be subi
to First Amendment strict scrutiny. App. 67a-68a (Sloviter,
C.J.). The government and its amici, however, urge this
Court to adopt a far lower level of constitutional protection
7
for speech transmitted via . See, e.g., Appe llants’
Br. at 36-37 (CDA should be considered “cyberzoning”).
This Court need not and should not fashion new First
in which political expression could thrive. Thus protecting
i a nee CES SS See 6
ing the government from infringing upon
Pedividual liberty.
Framers’ desire to protect emerging forms of commu-
ee ne.
nications technologies often are born in ivity. $ '
by Justice Jackson’s observation that communications
A closer inspection of the substance of this Court’s previ-
ous encounters with new technologies, however, reveals that
the Kovacs “law-unto-itself” dicta has been more rhetoric
than reality. By and this Court has tended to apply the
same First Amendment standards that govern the tional
"See Robert Corn-Revere, New Technology and the First
Amendment. the Cycle of ion, 17 Comm/Ent
247, 264-265 (1994); M. Ethan Katsh, First Amendment and
ee cae The New Media Have a Message, 57 Geo.
Wash. L. Rev. 1459, 1467-72 (1989).
" Laurence H. Tribe, The Constitution in Cyberspace: Law and
Liberty the Electronic Frontier, Keynote Address at the
First on Computers, Freedom & Privacy (Mar. 26,
this Court considered the constitutional status of this
medium for the first time, it held that motion one
not speech and thus were not protected by the First Amend-
ment. Mutual Film . V. Industrial Comm'n, 236 U.S
230, 244 (1915). It took almost four decades to reconsider
this decision. after cinema had become an established
and accepted part of , this Court began to extend to
film the same degree of 7 Sa eee ac-
corded the traditional press. Burstyn, Inc. v. Wilson,
343 U.S. 495, 502-503 & n.13 (1952); see also United States
v. Paramount Pictures, Inc., 334 U.S. 131, 166 (1948).
— U.S. 51, 58-61 aap
one of the “traditional forms of expression such as > that
9
mined that the inherent scarcity of transmission frequencies,
see Red Lion Broad. Co. v. FCC, 395 U.S. 367, 388-390
(1969), and the — pervasiveness and accessibility of
ing, see
748-750 (1978), justified the imposition of significantly
permitted
FCC, 492 U.S. 115 (1989) (rejecting imposition of indecency
restrictions on imilar to those Id in Pacifica);
Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974)
(rejecting imposition on newspapers of right of response
similar to that upheld in Red Lion).
This Court’s experience with creating a separate First
Amendment standard for ing, however, has not
been a happy one. As this Court has
both courts and commentators have the scarcity
rationale since its inception. See Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 638 & n.5 (1994). Moreover, when
faced with the full implications of Justice Jackson’s approach
resolve cases through the use of competing that
whether the new bore greater similarities
with i vo See, e.g, Bolger v. Youngs Drug
Prods. le S. 60, 74 (1983); Sable Communica-
tions, 492 U.S. at 127-128; City of Los Angeles v.
Communications, Inc., 476 U.S. 488, 496
J., concurring). As the analytical bases for Red Lion and
cases
through that medium would be evaluated. As the Court
concluded:
[W]hatever relevance these physical charac-
teristics may have in the evaluation of particu-
lar cable regulations, they do not require the
10
alteration of settled principles of our First
Amendment jurisprudence.
512 U.S. at 639. In so holding, this Court returned to the
original logic of Joseph Burstyn, Inc. by recognizing that
ketplace of mass speech that this country—and indeed the
veyed through virtually
the all of the above-mentioned means as well. See Ithiel de
Sola Pool, Technologies of Freedom 23 (1983).
Furthermore, the viability of distinctions based on the
of speec conveyed tas sleo deteriorated as mudtiomrhe
the in . broadcasti
or is “all of the .” As the ical coherence
underlying these analogies has their application
judiciary’s ability to keep up, if it has not done so already.
Moreover, uncertainty about the standard that will be i
to future communications technologies will
“placed cable in a doctrinal wasteland in which
and cable operators alike could not be sure whether was
of the plurality opinion in once again the
possibili that a different First Amendment
to eatiie, 116 8. Ce. ot 2500-55 Gtaniy eta),
plurality nonetheless ied a standard very c to
doctrine, id. at 2385, 2391 opinion), and a majority
of the Justices of this Court the of
ene’ Toe Annas oy to ; television,
id at 2404 (Kennedy, .» joined Ginsburg, J., concurring
in the in and dissenting in
pant); id at 2419 (Thomas, J., joined by Rehnquist, C.J., &
Pool, supra, at 7; Rodney Smolla, Free Speech in an Open
Society 321 (1992), Laurence H. Tribe, American Constitutional
1? | ce 1007 (2d ed. 1986); Katsh, 57 Geo. Wash. L. Rev.
at 1493.
12
Scalia, J., concurring in the j :
in part). urring in the judgment in part and dissenting
be called upon repeatedly—and more uently—to deve
a “new” First Amendment standard wid fe Senaeee o
oe will face great uncertainty
extent 0 their rights and will be forced to await a decision of
il. THE CDA UNCONSTITUTIONALLY AB
PROTECTED SPEECH AND THE INDECENCY.
STANDARD IS COMPLETELY VAGUE.
which is indecent but not obscene is protected Finn
Amendment.” Sable Communications, 492 US. a 106 But
absent a clear understanding of the term “indecency,” or of
at deemed
the doctrine that permits regulation of speech
designated decisionmaker to be “patently offensive,” it Pap
entirely clear that such speech is protected in or that
speech, it will be impossible to tell what speech must
screened from minors upon risk of criminal prosecution. “
This is not simply a question of whether the i
standard is impermissibly vague. Both as conceived and as
13
historically ied, it is. There is also a more fundamental
question the indecency standard incorporates any
kind of ones ang Ay that = the breadth of the
concept or restricts the discretion o prosecutors. Our history
teaches that such unbridled regulation intrudes deeply into
the area of protected speech."
A. The Indecency Standard Is the Reincarnation of
the Hicklin Rule in American Law.
1. The Lack of a Constitutionally Sound Test for
ae eee Setneeety bad fo Ge
Routine of Literary Works.
Despite the fact that obscene speech is unprotected by the
First Amendment, this Court has | held that such com-
munications may be penalized only if all three parts of the
relevant test are met: (1) the average person, applying
contemporary ity standards, must find that the work,
schon A Sain, contin to the pacts tensean in cme CH
the work depicts or describes, in a patently offensive way,
sexual conduct specifically described by state law; and (3)
the work, “taken as a whole, lacks serious literary, artistic,
political, or scientific value.” Miller v. California, 413 U.S.
15, 24 (1973); see also Book Named “John Cleland's
Memoirs of a Woman of Pleasure” v. Massachusetts, 383
U.S. 413, 418 (1966). Even when the government asserts a
need to protect minors from exposure to sexually oriented
’ Because the indecency standard is constitutionally infirm, the
government’s suggestion that the CDA can be reformed or
narrowed is erroneous. Erznoznik v. City of Jacksonville, 422 U.S.
205, 216-217 (1975). This Court could decide that the CDA can
be applied constitutionally only to obscene speech, Hamling v.
United States, 418 ‘? rig fata Agden a
needless redundancy. See, e.g, 18 U.S.C. § 1465. ingly,
the CDA should be invali as a whole.
‘In addition to substantive requirements, this Court also has
imposed strict due process guidelines on obscenity enforcement so
as not to chill the exercise of . See, e.g., Vance v.
Universal Amusement Co., 445 U.S. 308, 316-317 (1980); Freed-
man, 380 U.S. at 57-58.
14
materials under a “variable obscenity” standard, the First
Amendment prescribes strict limits based on the Miller test.'’
The law was not always such. Before the courts rigorously
applied First Amendment principles to obscenity laws, the
relevant legal standard was drawn from an English case,
Regina v. Hicklin, which held that the test for obscenity
turned on whether the material tended to corrupt the morals
of a young or immature person.” Under standard,
literature was judged obscene based upon a review only of
brief excerpts of a publication and not the work as a whole.”
Consequently, the intended audience of a book was unimpor-
tant if ay and inexperienced person might be exposed to
the supposedly corrupting influence. Additionally, it was
immaterial whether the book possessed literary merit.
Indeed, some found that literary merit compounded the
—, by “enhancing a book’s capacity to deprave and
corrupt.
Not surprisingly, under this test for obscenity, “[t}he first
half of the 20th century [was] marked by heated iniestion
Well established First Amendment doctrine requires that
material regulated under the “harmful to minors” standard must be
“virtually obscene” before the government may adopt limited
restrictions. Virginia v. American Booksellers Ass'n, 484 U.S.
383, 394 (1988); accord American Booksellers v. Webb, 919 F.2d
1493, 1504-05 (11th Cir. 1990), cert. denied, 500 U.S. 942 (1991);
American Booksellers Ass'n v. McAuliffe, 533 F. Supp. 50 (N.D.
Ga. 1981) (statute ibiting sale or display to minors of material
containing nude figures held overbroad); American Booksellers
Ass'n v. Superior Ct., 181 Cal. Rptr. 33 (Ct. App. 1982)
(photographs with a primary purpose of causing sexual arousal
held not to be harmful to minors). Moreover, government must
employ the least restrictive means of serving its interest.
*® Regina v. Hicklin, 3 L.R.-Q.B. 360 (1868). The test focused
not on the “average person in the community,” but on “those
whose minds are open to such immoral influences, and into whose
hands a publication of this sort may fall.” See Meese Commission
Report, supra, at 1246-47.
*' Frederick F. Schauer, The Law of Obscenity 23 (1976).
* Edward de Grazia, Girls Lean Back Everywhere \2 (1992).
15
over books which are now generally regarded as classics.”
Using the Hicklin rule, Ameriéan courts held obscene such
works as Theodore Dreiser's An American Tragedy,” D.H.
Lawrence’s Lady Chatterley's Lover,” Erskine Caldwell’s
God's Little Acre,” Radclyffe Hall’s The Well of Loneli-
ness,” Arthur Schnitzler’s Casanova's Homecoming,” Henry
Miller’s Topic of Cancer and Tropic of Capricorn,” and
James Joyce’s Ulysses.”
In many cases, merely the threat of prosecution was suffi-
cient to stop publication. By this method, publishers were
persuaded to withdraw from circulation and destroy all
outstanding copies of Women in Love, by D.H. Lawrence,
The Genius, by Theodore Dreiser, and Memoirs of Hecate
County, by Edmund Wilson.”' Other literary that were
attacked included Nathaniel Hawthorne, Walt Whitman,
Ernest Hemmingway, Sinclair Lewis, Leo Tolstoy, Honore
de Balzac, and George Bernard Shaw.”
Because of the adverse effect on important literary works,
American courts began to question the Hicklin rule. As early
as 1913, Judge Learned Hand asked whether “we are even
® Schauer, supra, at 23-24.
** Commonwealth v. Friede, 171 N.E. 472 (Mass. 1930).
** People v. Dial Press, 48 N.Y .S.2d 480 (Magis. Ct. 1944).
© Attorney Gen. v. Book Named “God's Little Acre”, 93 N.E.2d
819 (Mass. 1950).
” People v. Friede, 233 N.Y.S. 565 (Magis. Ct. 1929).
* People v. Seltzer, 203 N.Y.S. 809 (Sup. Ct. 1924).
° United States v. Two Obscene Books, 99 F. Supp. 760 (N.D.
Cal. 1951), aff'd sub nom. Besig v. United States, 208 F.2d 142
(9th Cir. 1953).
*©Not only was a small literary magazine convicted of obscenity
for publishing Ulysses in installments, but the U.S. Post Office
seized and burned all of the issues of the magazine. No American
publisher considered printing Ulysses for the next eleven years.
See de Grazia, supra, at 9-13, 16-17.
*" Id. at 72-73, 710.
* Blanchard, 33 Wm. & Mary L. Rev. at 746, 758, 771.
16
today so lukewarm in our interest in letters or serious discus-
sion as to be content to reduce our treatment of sex to the
standard of a child’s library,” but nevertheless applied what
he described as the “mid-Victorian morals” of Hicklin
because it had been by federal courts as the prevail-
ing standard. United States v. Kennerley, 209 F. 119, 120-
121 (S.D.N.Y. 1913). A significant break with Hicklin came
in United States v. One Book Entitled Ulysses, 72 F.2d 705,
707-708 (2d Cir. 1934), where the Second Circuit declined to
find the book Ulysses obscene when “taken as a whole” and
after assessing its effect on the average member of the
community. Other courts began to follow suit.” ite this
emerging trend, however, many publishers continued to shy
away from books considered to be risky. For example, Lady
Chatterley's Lover, written in 1928, was not published in its
unexpurgated form in America until 1959.% Tropic of
Cancer, written in 1934, was unpublished in the United
States for 26 years.”
Finally, in 1957, this Court expressly abandoned the
Hicklin rule and held that the First Amendment requires that
works must be judged as a whole in their entire context,
considering their effect on the average member of the com-
munity—not the most vulnerable. Moreover, a work could
not be considered obscene if it possessed serious value. Roth
v. United States, 354 U.S. 476, 489-490 (1957). That same
year, this Court struck down a ae law that prohibited
books containing “immoral, lewd [and] lascivious language *
* * tending to the corruption of the morals of youth” because
it “reduce[d] the adult population * * * to ing only what
is fit n children.” Butler v. Michigan, 352 U.S. 380, 383
(1957).
As modified subsequently in Memoirs and Miller, this
Court’s categorical rejection of the Hicklin rule made clear
* E.g., United States v. Levine, 83 F.2d 156 (2d Cir. 1936);
ACLU v. City of Chicago, 121 N.E.2d 585 (Ill. 1954), appeal
dismissed, 348 U.S. 979 (1955), People v. Viking Press, Inc., 264
N.Y.S. 534 (Magis. Ct. 1933).
“de Grazia, supra, at 94; see Grove Press, Inc. v. Christen-
berry, 276 F.2d 433 (2d Cir. 1960).
* de Grazia, supra, at 55, 370.
a ee
17
that the detailed analytical framework of a three-part test is
Ce es ae eae
tected from unprotected speech. Departure from that
Cnab~ab bas Gonaned wih Go tadiesuey standard—
sacrifices important First Amendment values.
2. The Indecency Standard Is the Functional
Equivalent of Hicklin.
The government defends the constitutional sufficiency of
the indecency standard by stating that “[t]he CDA’s defini-
tion of patently offensive materials is similar to the second
element” of the Miller test for obscenity. Appellants’ Br. at
48. The standard is consistent with the First Amendment, the
government maintains, because “[mJaterial having scientific,
educational, or news value almost always falls outside the
CDA’s coverage.” Jd. at 50 (emphasis added). This invita-
tion to rely on the government’s sense of restraint in applying
a standardless test was too much for the court below to
As Judge Sloviter pointed out, this position “would
require a broad trust indeed from a generation of judges not
far removed from the attacks on James Joyce’s Ulysses as
obscene.” App. 82a.
Indeed, the indecency standard articulated in FCC v.
Pacifica Foundation, supra, and applied by the FCC in
subsequent cases betrays this trust, and restores a level of
government control over speech that existed before Roth and
Butler. Just as under Hicklin, the indecency standard applies
to selected passages, not to works as a whole; it is based not
on the average person in a community, but upon children;
and literary or artistic merit does not bar liability. In short,
the three-part test that courts developed to ensure the appli-
cation of First Amendment restraints on obscenity laws is
precisely what the indecency standard lacks Additionally,
the CDA includes criminal penalties, creating a more serious
constitutional problem than the administrative sanction at
issue in Pacifica. Village of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 499 (1982).
Although the government maintains that the relative
“value” of speech is subsumed within the determination of
“patent offensiveness,” Appellants’ Br. at 49-50, the FCC has
held that the merit of a work is simply “one of many vari-
ables that make up a work’s ‘context.’"”"* Judge Patricia
Wald has noted that “‘[iJndecency’ is not confined merely to
material that borders on obscenity—‘obscenity lite.’”
Alliance for Community Media v. FCC, 56 F.3d 105, 130
(D.C. Cir.) (in banc) (Wald, J., dissenting), rev'd in part and
aff'd in part sub nom. Denver Area Educ. Telecomms.
Consortium v. FCC, 116 S. Ct. 2473 (1996). Rather, the
standard casts a larger net encompassing other, less offensive
protected speech regardless of its merit. Thus, in many
instances, “the programming’ S very merit will be inseparable
from its seminal ‘offensiveness.”” Jd. The Commission has
acknowledged that, because serious merit does not save
material from an indecency finding, there is a “broad range of
sexually-oriented material that has been or could be consid-
ered indecent” that does “not [include] obscene speech.”
Moreover, in applying the indecency standard, the FCC has
expressly rejected claims that it must consider the t
material as a whole,” and has penalized broadcasts
less than five percent of a program was devoted to sexually-
oriented material. The Commission concluded that it could
impose a fine “[wJhether or not the context of the entire
rogram] dwelt on sexual themes.” WIJOD(AM), 6 FCC
Red. 3704, 3705 (1989). Finally, like the discredited Hicklin
rule, the focus of indecency regulation is the effect of
sexually-oriented material on a vulnerable population—
*° Infinity Broadcasting Corp., 3 FCC Red. 930, 932 (1987),
aff'd in part and rev'd in part on other grounds sub nom. Action
for Children's Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988)
(“ACT I’).
*” Enforcement of Prohibitions Against Broadcast Indecency in
18 US.C. § 1464, 5 FCC Red. 5297, 5300 (1990), rev '‘d on other
grounds sub nom. Action for Children’s Television v. FCC, 932
F.2d 1504 (D.C. Cir. 1991), cert. denied, 503 U.S. 913 (1992).
** Illinois Citizens Comm. for Broad. v. FCC, 515 F.2d 397, 406
(D.C. Cir. 1974); Implementation of Section 10 of the Cable
Consumer Protection and Competition Act of 1992, 8 FCC Red.
998, 1004 (1993) (“We do not agree that any determination of
indecency [on the cable medium] is required to take into account
the work as a whole.”). Contra Erznoznik, 422 U.S. at 211-212
n.7 (“Scenes of nudity in a movie, like pictures of nude persons in
a book, must be considered as part of the whole work.”).
19
children—and not average members of a community.
Pacifica, 438 U.S. at 749-750. The net effect is to cancel the
decades of constitutional evolution that made possible the
protection of meritorious speech.
B. The Indecency Standard Is Unconstitutionally
Vague.
The First Amendment requires that restrictions on speech
be well-defined and unambiguous. Laws that inhibit free
speech are subject to the most stringent standards of preci-
sion.” Vague laws attempting to regulate or suppress non-
obscene speech have been repeatedly struck down,” even
when enacted to protect minors. In /nterstate Circuit, Inc. v.
City of Dallas, 390 U.S. 676, 678 (1968), this Court invali-
dated an ordinance requiring film classification and prohibit-
ing attendance by youths under 16 at films classified “not
suitable for young persons.” Interstate Circuit established
the principle that “the permissible extent of vagueness is not
*® Village of Hoffman Estates, 455 U.S. at 499; Cramp v. Board
of Pub. Instruction, 368 U.S. 278, 287 (1961); see Hynes v. Mayor
of Oradell, 425 U.S. 610, 620 (1976) (“general test of vagueness
applies with particular force in review of laws dealing with
”); Southeastern Promotions, Lid. v. Conrad, 420 U.S. 546,
553 (1975) (condemning denial of access to a municipal theater
where “the exercise of such authority was not bounded by precise
and clear standards”); Smith v. Goguen, 415 U.S. 566, 574-575
(1974); Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)
(vague laws fail to “give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited, so that he may
act accordingly”); Gentile v. State Bar, 501 U.S. 1030, 1051
(1991).
” E.g., Winters v. New York, 333 U.S. 507, 518 (1948) (statutory
standard interpreted by state court to be “criminal news or stories
of deeds of bloodshed or lust, so massed as to become vehicles for
inciting violent and depraved crimes”); Joseph Burstyn, Inc.,
supra (“sacrilegious” as a licensing standard); Gelling v. Texas,
343 U.S. 960 (1952) (mem.) (“prejudicial to the best interests of
the people of said City”); Superior Films, Inc. vy. Department of
Educ., 346 U.S. 587 (1954) (mem.) (“moral, educational, or
amusing and harmless”); Holmby Prods., Inc. v. Vaughn, 350 U.S.
870 (1955) (mem.) (“cruel, obscene, indecent or immoral, or such
as tend to debase or corrupt morals”).
20
directly proportional to, or a function of, the extent of the
power to regulate or control expression with respect to
children.” Jd. at 689.*'
Vague laws impermissibly restrict speech in a variety of
ways. First, without clear guidelines, those subject to a
restriction cannot understand what is forbidden and what is
not.” Second, a vague standard impermissibly chills speec speech,
causing speakers to “steer far wider of the unlawful zone
and to restrict their expression “to that which is unques-
tionably safe.” Third, restrictions on speech that lack clear
limits give government officials far too much discretion to
curb disfavored expression.“ At bottom, the threat of
prosecution grounded on vague standards constitutes a prior
restraint.“
*' See also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 59
(1963) (condemnin bee that was charged with review-
ing material “mani tending to the corruption of the youth”);
Rushia v. Town of As he am, $82 F. Supp. 900, 905 (D. Mass.
1983) (“The fact that a regulation is adopted for the purpose of
protecting children does not cure vagueness.”).
*” See, e.g., Kolender v. Lawson, 461 U.S. 352, 357-358 (1983);
Grayned, 408 U.S. at 108-109; Gentile, 501 U.S. at 1048
(regulation of speech is unconstitutional when those subject to it
can do no more than “guess at its contours”).
* Speiser v. Randall, 357 U.S. 513, 526 (1958); Bella Lewitzky
Dance Found. v. Frohnmayer, 754 F. Supp. 774, 783 (C.D. Cal.
1991).
“ Baggett v. Bullitt, 377 U.S. 360, 372 (1964); see also Cramp,
supra.
* Forsyth County v. Nationalist Movement, 505 U.S. 123, 133
(1992); City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S.
750, 770 (1988); City of Houston v. Hill, 482 U.S. 451, 468-469
n.18 (1987); Kolender, 461 U.S. at 358, 360; Thornhill v.
Alabama, 310 U.S. 88, 97 (1940).
“Bantam Books, 372 U.S. at 70; Vance, 445 U.S. at 316;
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225-226 (1990) (“a
scheme that places ‘unbridled discretion in the hands of a gov-
ernment official or agency constitutes a prior restraint’”) (quoting
City of Lakewood, 486 U.S. at 757).
21
Contrary to the government's position in this case, Denver
did not settle the vagueness question with respect to
the CDA. issue of the indecency standard’s inherent
vagueness has never been definitively resolved.” This
eee eee “a very particular
context—congressional permission for cable operators to
regulate that, but for a previous Act of Con-
uid have had of access to cable channels
” 116 S. Ct. at 2386 (plurality
cpnion} emphasis in ogi) The decision was
upon a of interests,” id. at 2387, that
naj) af tas Coun Pace, wan ast endaseed by 0
Subsequeiit
Oe CT yak
resolve the v. issue. E.g , Action for Children’s Television
v. FCC, 852 1332, 1339 (D.C. Cir. 1988) (“ACT I’), Carlin
ee v. FCC, 837 F.2d 546, 559 (2d Cir.), cert.
denied, 488 U.S. 924 (1988) (“Carlin IIT’), Action for Children’s
ic. on FCC, 932 F.2d 1504, 1508 (D.C. Cir. 1991) (“ACT
IT’), cert. denied, 503 U.S. 913 (1992); Providers’
rey tg needed FCC, 928 F.2d 866,
574-875 Cir. 1991 for Community Media, 56 F 3d
at 129; Action Chilibon's Telectsione FCC, 58 F.3d 654, 659
(D.C. Cir. 1995) (“ACT HT’), cert. denied, 116 S.Ct. 701 (1996).
“ In a February 1994 settlement agreement in an indecency case
“indecency” within 9 months. £ Media Corp. v. FCC,
Civil No. 92 C 5600 (N_D. Ill. Feb. 22, 1994). This clarification
of the Commission's indecency standard has not been produced.
“Eg, Cohen v. California, 403 U.S. 15 (1971) (“Fuck the
cof Lewis v. 9 he Orleans, 415 U.S. 130 (1974);
Gentian’. Wilson, 405 518 (1972).
"Cf Breneenth, segve (lias containing sutity)
newspaper
men raping Statue of Liberty and Goddess of Justice with caption
“M----- F----- Acquitted”).
any 116S. of mgs ly gig de
gh ommunity Television, Inc. v. Wilkinson,
on D. Utah 1985), d sub nom. Jones v.
Wilkinson, F.2d 989 (10th Cir. | aff'd mem., 480 US.
926 (1987) (uncut R-rated movies), cf Appellants’ Br. at 43
(material “similar to the R-rating for movies” should be screened
from minors).
school assembly,” Morality in Media Br. at 6-7, 13-16. The
Proj. Br. at 27 ( Pacifica, 438 U.S. at 740). Enough is
Enough equates ” with “pornography”
deed on Gb ad onda, ph hmndaghe
broad enough to criminalize “ai sexual images of
women.” Enough is Enough Br. at 8 n.8, 11-12 n.16.
San cone inks COMER CREED O Gants Gas
propose a new standard labeled “online indecency” and lista
ae OS ee es Cong. Br. at 14. How this
might actually be applied is anyone’s guess.
2. Exper with Enforcement Demon-
strates the Standard’s Vagueness and Over-
breadth.
* Bethel Sch. Dist. No. 403 v. Fraser, 478 US. 675 (1986)
(penalizing student speech that included double entendre).
™ See supra note 47.
* Action for Children's Television v. FCC, 59 F 3d 1249, 1254
(D.C. Cir. 1995) (“ACT IV”), cert. dismissed, 116 S. Ct. 773
(1996), see also id. at 1264 (Tatel, J., dissenting) (“of the thirty-
six FCC indecency forfeiture orders issued since 1987, not one has
been reviewed by a court”).
24
FCC indecency regulations to the current proceeding.“
Nevertheless, the court below found that FCC administrative
decisions at least “provide a kind of surrogate insight” into
the scope of the standard. App. 119a.
speech
50. Ry 3 ai yt we Se
Carnal Knowledge “could not be found under the Miller
standards to depict sexual conduct in a yy AA
way.” Jenkins v. Georgia, 418 U.S. 153, 161 (1974).
i akon
lives” and it includes scenes in which “sexual conduct
aos Sees Pear be taking
place” as well as “occasional of nudity.” Jd. at 158,
161. This Court made clear, however, that “nudity alone is
not enough to make material legally obscene under the Miller
standards.” /d. at 161.
Pacifica, however, is an entirely different matter. In the
FCC’s only substantive on a theatrical film, it con-
=“ Appellants’ Br. at 50 (citing FCC cases) with
Br. at 7 (the i restriction of the CDA “differs
substantive decision ever issued. See Kansas City Television, Lid,
4 FCC Red. 7653 (1988); see also Appeliants’ Br. a re
system “similar to the R-rating for movies” could be
identify online indecency).
25
tended to describe the subject matter of Private Lessons in
more ive terms than did this Court in di
“quality "itis movies might be distinguished based on their
hints socuemhanntaled bisomensoneats
‘as a matter of law. In any event, such
Peabod Rae
The critically-acclaimed program was aired by various public
television stations between 1988 and 1990, and a year-long
FCC investigation ensued after the program -d on a
See Craig Hosoda, The Bare Facts Video Guide 647, $17
(1995). In Jenkins, this Court consulted film reviews in order to
obtain more information about the film under review. 418 US. at
158-1
* See Robert Corn-Revere, New Age Comstockery, 4 CommLaw
173, 181-182 (1996); see also Pacifica, 438 U.S. at
741 n.16 (even if Lady Chatterley's Lover, when taken as a whole,
is not obscene, “the utterance of such words or the depiction of
such sexual activity on radio or TV would raise * * * publi
parenting Bey Hy Ag PR SR, Ee
gramming Inquiry 44 F.C.C. 2303, 2307 (1960)). But
1 Pictures C. v. Regents, 360 U.S. 684, 688-689 (1959)
directed a film Lady Chatereys Lover because prays
d the legal code of the] citizenry”), ‘The FCC has
reluctant to into questions of literary merit, and, despite
26
Despite this Court's repeated findings that nudity per se is
Fe Congres: the Dept fs it is clear that the
FC of Justice believe other-
sional amici now disclaim any intent to impose a similar
interpretation under the CDA on the theory that “online
indecency” is “more permissive than broadcast indecency,”
Cong. Br. at 6, se NS © Se Se ee
General are operating under a quite different See
supra notes 9, 56; see also ACLU v. Reno, 24 L. Rep.
(BNA) 1797 (E.D. Pa. ! 15, 1996) sintfying TRO to
block enforcement of A against “centerfold” type
images).
Perhaps most threatening is the application of the inde-
cency standard to news ing. The FCC has ex-
pressly declined to hold that “if a has merit it is per se
not indecent,” and that material may be found indecent for
broadcast even where the information is presented “in the
news” and is presented “in a serious, newsworthy manner.”
The qovammuest Guages wovesteeloes Gat tainted with
declaratory ruling that a from is not indecent. See
William J. Eee. 63 Rok Ree (P&F) 216 (Mass Media
Bureau 1987).
© Erznoznik, 422 U.S. at 213; Jenkins, 418 U.S. at 161; Kois v.
Wisconsin, 408 U.S. 229 (1972); Manuel Enters., Inc. v. Day, 370
U.S. 478 (1962).
*' En Banc Programming Inquiry, 44 F.C.C. at 2307; Pacifica,
438 U.S. at 741 n.16.
* See Telecommunications Act of 1996, § 506, 47 U.S.C. § 531;
see also 138 Rec. $646 (daily ed. Jan. 30, 1992) (statement
of Sen. Helms) (listing as examples of “indecency” scenes of
“men and women stripping completely nude”).
“ Letter to Merrill Hansen, 6 FCC Red. 3689, 3689 (1990)
(citation omitted); see also KLOL(FM), 8 FCC Red. 3228 (1993);
WVIC-FM, 6 FCC Red. 7484 (1991).
27
“serious redeeming value” is not affected by this
and that ang apne “almost always falls
outside the BA's Geom llants’ Br. at 50. To
or this claim, se government against an NPR newscast in which
a an newscast in which a
“reputed Maia bas y in conver-
Appellants Br. at 50 (citing oe Latiep to Mr. Peter
ae Red. 610 1991) poion Ae mes dismissed,
993 F.2d 906 (D.C. Cir. 1993), cert. denied, 114 S. Ct. 1610
(1994)). While there is no question about the correctness of
yy pd ey dy Le dd ke
than it answers about how the government ermal
“host of variables” eg iahs-agrechees ity.
nine “patent
the government suggests that speakers should —,
context (the kind of program on which spee..1 appears) and
degree (not “an occasional expletive”). llants’ Br. at 49
( Denver, 116 S. Ct. at 2390 (plurality opinion)).
ees read a sy +e interview on the air
in which lon of Plain again row one
Jim Bakker. Letter to Merrill Hansen, supra. The Commis-
sion agreed thet “he newsworthy nature of broadcast mate
rial” was a “relevant contextual considerati but it
mission exonerated the NPR broadcast in Branton ite the
fact that, as former FCC Commissioner Ervin S.
wrote in dissent, it transmitted “in the course of a
seconds ten repetitions of the dirtiest of ‘the seven dirty
words.” The Commissioner concluded that “such deliber-
“ Judge Patricia Wald has questioned the FCC’s characteriza-
tion of this case. ACT JI], 58 F.3d at 685 (Wald, J., dissenting).
She concluded that “this one case exemplifies so well * * * that
enforcement of [the FCC’s] indecency regulation involves both
government- and self-censorship of much material * * * *”
* Branton, 6 FCC Red. at 611 ( Comm’r, dissenting).
my St $4 one expletive that has
traditionally been considered the most objectionable, the most
28
ate and repeated use, in my judgment, however noble the
intent of the broadcaster, seems to me to fit the definition of
pandering: catering to low tastes.” /d.
Given the government’ s — mi re or manipulate its
own “factors” to determine ensiveness, these cases
demonstrate that “indecency” is ae very paradigm of a vague
and arbitrary test. Commissioner Duggan, for example,
suggested that his fellow Commissioners may have been
uaded not to issue a sanction in Branton “because the
roadcast in question was by National Public Radio.” Jd.“
Such an ability to assist favored speakers and penalize
disfavored ones is the principal vice for which the v
doctrine was created, Kolender, 461 U.S. at 360, and it is
particularly threatening to publishers such as Playboy, which,
the Meese Commission acknowledged, has been the target of
government “mistakes,” see supra p. 4.
The lack of any principled basis for applying the “host of
variables” subsumed within the concept of indecency also
means that there is no way to predict the outcome of the next
case, except to conclude that “merit” is not dispositive. If
Commissioner Duggan had been a federal judge charged with
enforcing the CDA, it is quite likely that NPR would have
been found criminally liable for transmitting an indecent
newscast. It is sobering to realize in this regard, that =
Gillett Communications v. Becker, 807 F. Supp 757 (N
Ga. 1992), appeal dismissed mem., 5 F.3d 1 ‘ath ¢ Cin
1993), a federal district court held that the video
Abortion in America: The Real Story, transmitted as part of a
political advertisement by a bona fide candidate for public
office, was indecent. As the late Justice William O. Douglas
warned, “{h]ighly subjective inquiries such as this do not
lend themselves to a workable or predictable rule of law, nor
should they be the basis of fines or imprisonment.” Kois,
408 U.S. at 232 (Douglas, J., concurring). Failure to heed
this warning provides a vehicle “for the suppression of any
unpopular tract.” /d. at 233.
forbidden, and the most patently offensive to civilized and
cultivated people: the famous F-word.” /d.
“It is conceivable that similar considerations persuaded the
FCC to “misplace” the complaint involving The Singing Detective.
29
All of our experience with the indecency standard belies
the government’s claim that the CDA does not threaten
speech with serious merit. It cannot be reconciled with the
demands of the First Amendment. Accordingly, this Court
should uphold the decision below that the indecency standard
is constitutionally infirm.
CONCLUSION
For the foregoing reasons, and for those set forth in the
appellees’ briefs, the judgment below should be affirmed.
Respectfully submitted,
Of Counsel: ROBERT CORN-REVERE*
BURTON JOSEPH CHRISTOPHER S. YOO
BARSY, JOSEPH & HOGAN & HARTSON L.L.P.
LICHTENSTEIN 555 Thirteenth Street, N.W.
134 North LaSalle Street Washington, D.C. 20004-1109
Chicago, Illinois 60602 (202) 637-5640
(312) 346-9270
* Counsel of Record Counsel for Playboy Enterprises,
Inc.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.