# Amicus Curiae Brief — Reno v. American Civil Liberties Union > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0021%3A19 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1997 - **Citation:** 521 U.S. 844 ## Text 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. — BEST AVAILABLE COPY 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 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0021%3A19. Public record. Not legal advice.