Amicus Curiae Brief — United States v. Playboy Entertainment Group, Inc.

No. 98-1682 CLERK

in THE

Supreme Court of the United States

UNITED STATES OF AMERICA, ET AL.,

Appellants

v.

PLAYBOY ENTERTAINMENT GROUP, INC.,

Appellee

ON APPEAL

FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

BRIEF OF AMERICAN BOOKSELLERS FOUNDATION FOR FREE

EXPRESSION, ASSOCIATION OF AMERICAN PUBLISHERS, INC.,

COMIC BOOK LEGAL DEFENSE FUND, FREEDOM TO READ

FOUNDATION, INTERNATIONAL PERIODICAL DISTRIBUTORS

ASSOCIATION, MOTION PICTURE ASSOCIATION OF AMERICA,

INC., NATIONAL ASSOCIATION OF COLLEGE STORES, INC.,

NATIONAL ASSOCIATION OF RECORDING MERCHANDISERS,

PERIODICAL AND BOOK ASSOCIATION OF AMERICA, INC.,

PUBLISHERS MARKETING ASSOCIATION, RECORDING INDUSTRY

ASSOCIATION OF AMERICA, INC., AND VIDEO SOFTWARE

DEALERS ASSOCIATION AS

AMICI CURIAE

IN SUPPORT OF APPELLEE

MICHAEL A. BAMBERGER

Sonnenschein Nath & Rosenthal

1221 Avenue of the Americas

New York, New York 10020

(212) 768-6700

Counsel of Record for Amici Curiae

David J. Shapiro

Of Counsel

TABLE OF CONTENTS

TAR Ge FTEs 5 RI ccccetisaninnaternerrectnennviiscborinianimaanniann i

EE saitesicnsertncnscnprescntqrunssnmngginteignenndtaiegsdaniniansnatanminamnn l

OCR eC Ie ccncprsretittensnessnecscotpstnnctoovinnnebinenpencttibthanceseoqnetets 2

SUIRRIGARY GP AFUE 5 acco ccecccepsencesececssensscsnstenconeceinecncesevees 4

AGU II GS ti Rettetlblatenciclactdpninnsissilchaieidblelinbeninpamasmapemapesceyon 6

I THE USE OF AN INDECENCY STANDARD IS

INAPPROPRIATE AND UNCONSTITUTIONAL.

IT GOES BEYOND MILLER/GINSBERG AND IS

VIII netclicinrrsnsh ccbilepecihtinniintlintietonsteeincvtitinailitgennevmpeacosecnsees 6

Il SECTION 505 VIOLATES THE EQUAL

PROTECTION GUARANTEE OF THE FIFTH

AMENDMENT BECAUSE IT SELECTIVELY

EXEMPTS NON-ADULT CABLE STATIONS

FROM ITS SCRAMBLING AND TIME

CHANNELING REQUIREMENTS ...........ccc0cccsceereeseeeees 12

A. Equal Protection Jurisprudence And The First

Amendment Prohibit A Government From

Creating Arbitrary Classifications Among

FN EEE AE EES OORT 13

B. There Is Neither A Compelling Nor A

Rational Reason For Singling Out Adult-

Only Cable Stations For Section 505

C. The Act’s Discriminatory Treatment Of

Similarly Situated Providers Of

Constitutionally Protected Speech Concerns

Amici Beyond The Facts Of This Case................. 16

CE vcitctahstnisherischcintbieisnbeieinctnnantinibeigtovnthinendionsemeninnessns 18

RPC TEIEA FES. SUS CRA writes cniintnnesectntreternnernetareaneosccsneinnes A-]

TABLE OF AUTHORITIES

CASES

Page No.

Action for Children’s Television v. F.C.C., 58 F 3d 654

(D.C. Cir. 1995), cert. denied, 516 U.S. 1043 (1996)....... 15-16

American Booksellers Ass'n, Inc. v. Hudnut, 77\ F.2d 323

(7th Cir. 1985), aff'd, 475 U.S. 1001 (1986).................. 4 SI 3

American Booksellers Ass'n, Inc. v. McAuliffe, 533 F.

ON KS ee ea 3-4

American Booksellers v. Virginia, 882 F.2d 125 (4th Cir.

AE ST eae 7

American Booksellers v. Webb, 919 F.2d 1493 (11th Cir.

1990), cert. denied, 500 U.S. 942 (199 ~ jo. ccccccccccccceeeeceeee thaiell

Arkansas Writers’ Project, Inc. v. Ragland, 48\ U.S. 221

EE A a ae 14

Attorney General of New York. v. Soto-Lopez, 476 U.S

gg NEE RCE nee ger Swe ag eee 13

Baggett v. Bullitt, 377 U.S. 360 (1964) ........cccccccccceceeeceeeeeeeeens aol

Bery v. City of New York, 7 F 3d 689 (2d Cir. 1996), cert.

Gemied, 520 U.S. 1251 (1997) ....cccccccecsceeeesserenenserceeeneeeneees 13-14

Bolger v. Youngs Drug Prodvcts Corp., 463 U.S. 60

EE ee ee ee ae 8

Bolling v. Sharpe, 347 U.S. 497 (1954) ...cccccccccccccccceeeserenenenneneenees 13

Boothby v. City of Westbrook, 23 A.2d 316 (Me. 1941)............... 15

Butler v. Michigan, 352 U.S. 380 (1957) ...cccccccccccccceecceeeeeeereneenenes 1]

Carey v. Brown, 447 U.S. 455 (1980) ..........ccccccceececessernenerneeenenees 16

Central Hudson Gas & Elec. Corp. v. Public Serv.

LE ES a 3

ii

Page No.

Church of the Lukumi Babalu Ave. v. City of Hialeah, 508

SS RE, I ES 0 RNS VT 17

Consolidated Edison Co. v. Public Serv. Comm'n., 447

OG 5 ee a eT ee 3

Davis-Kidd Booksellers, Inc. v. McWherter, 866 $.W 2d

le YS er rae ee ne 4,7

Denver Area Educ. Telecommunications Consortium v.

ieee) jt %..), Pee aes 8

F.C.C. v. Pacifica, 438 U.S. 726 (1978) 2.......cccceecceneseneeserenneneneee 4,8

Ginsberg v. New York, 390 U.S. 629 (1968) ...........cccccccccecceeeerees 5,6

Grosjean v. American Press Co., 297 U.S. 233 (1936)........cccc00+- 14

Leech v. American Booksellers Ass'n, Inc., 582 $.W.2d

Fe CN, acres titekedeencieerichcreenesianemndintetnansitcaniiatnedtitetsens 4

Miller v. Califormia, 413 U.S. 15 (1973) ..ccccccccccocccneececnnnneeeennennvenens 6

Minneapolis Star & Tribune Co. v. Minnesota Comm'r of

Po ER a eee 14

NAACP v. Button, 371 U.S. 415 (1963) .......cccccececceeeevereccenennnnneenes 1!

News America Pub., Inc. v. F.C.C., 844 F 2d 800 (D.C.

a a ee eee 17

Police Dep't of City of Chicago v. Mosley, 408 U.S. 92

(EE eb es ease I Fe Nae a RN 14 16

Playboy Entertainment Group, Inc. v. United States of

America, et al., 30 F. Supp. 2d 702 (D. Del. 1998) .................. 6

Reno v. ACLU, $21 U.S. 844 (1997) ........cccccccececcceceeseceececenes 4, 8-10

Sable Communications of California, Inc. v. F.C.C., 492

UF G) 0) re ee a ee ee ee ee 4,5,8

Page No.

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989).............cccc0- 14

Video Software Dealers Ass'n v. Webster, 968 F 2d 684

ED GA Se errartsiptnnsastticinenniiaiiity aliilamsenmiiguadiieaasaine 3

Village Books v. Bellingham, No. C88-1470 (W.D. Wash.

REE SS De Ai 8 3

Virginia v. American Booksellers, 372 S.E.2d 618 (Va.

Sari cnisinassthsiieneialpnpadaiipatainsitilnrtandiastimianatadiebianiidiahitinmenmaeammaes 7

Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383

Cie ihinecinncilbaitiiecsctintnetndingusignbiiiahajeninigctentapnicnigmmnissaeties 3, 7,10

Virginia Pharmacy Bd. v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748 (1976) .........ccccccceneceneseneeeerennennneees 3

Williamson v. Lee Optical of Okl., 348 U.S. 483 (1955).............. 16

CONSTITUTIONS, STATUTES AND REGULATIONS

Cable Consumer Protection and Competition Act of 1992,

Pub. L. No. 102-385, 106 Stat. 1460, Section 10, 47

U.S.C. §§ 531, S32(h), 532(j), SSB (1999)... ccncececeecee sennees 4

Child On Line Protection Act, Pub. L. No. 105-277, 112

RE ER Ee 7

Communications Decency Act of The

Telecommunications Act of 1996, Pub. L. No. 104-

104, 110 Stat. 56, Sections 502, 230, 47 U.S.C. § 223,

Si EERE ES RE ASEAN RE IES SA ce a 4

Telecommunications Act of 1996, Pub. L. No. 104-104,

110 Stat. 56, Section 505, 47 U.S.C. § 561 (1999)......... passim

11 F.C.C. Red. 5386 (March 5, 1996) ..0.0........ccccccccocccesscscneesneeenneees 6

12 F.C.C. Red. $212 (April 17, 1996)..........--cscsececsereessseeseessssneeenses 7

In THE

Supreme Court of the United States

No. 98-1682

UNITED STATES OF AMERICA, ET AL.,

Appellants

v.

PLAYBOY ENTERTAINMENT GROUP, INC.,

Appellee

ON APPEAL

FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

BRIEF OF AMICI CURIAE

IN SUPPORT OF APPELLEE

STATEMENT

American Booksellers Foundation for Free Expression,

Association of American Publishers, Inc.. Comic Book Legal

Defense Fund, Freedom to Read Foundation (“FTRF”),

Association of America, Inc., National Association of Colloge

Stores, Inc., National Association of Recording Merchandisers,

Periodical and Book Association of America, Inc., Publishers

Marketing Association, Recording Industry Association of

America, Inc., and Video Software Dealers Association submit this

joint amicus brief in support of appellee urging that this Court

affirm the decision below.’ This brief is submitted upon written

consents of counsel to appellant and appellee, which are submitted

herewith.

INTEREST OF AMICI

Amici's members (hereinafter “amici”) publish, produce,

distribute, sell and are consumers of books, magazines, videos,

sound recordings, motion pictures, interactive games and printed

materials of all types, including those that are scholarly, literary,

artistic, scientific and entertaining. Libraries and librarians

represented by FTRF provide such materials to readers and

viewers. Amici, who include mainstream providers of speech in a

variety of forums and media, are concerned that the restricticas

imposed by Section 505 of the Telecommunications Act of 6

(the “Act”) on “sexually-oriented programming” will have the

inevitable effect of suppressing altogether the transmission of such

programming on certain cable channels, notwithstanding the ready

availability of less restrictive, non-governmentally imposed means

of protecting minors from the harms purported to flow from such

programming.

Section 505 provides that so-called “indecent”

ORNS 00 8 Ce ee

sexually-oriented programming” must be fully scrambled or

blocked so that a non-subscriber does not receive any portion of

the video or audio (so-called “signal bleed”). Until such blocking

or scrambling is achieved, all such programming must be during

late night hours (10 p.m. to 6 a.m.).

The court below permanently enjoined the enforcement of

Section 505 as unconstitutional under the First Amendment

because it did not constitute the least restrictive alternative for

dealing with the problem of signal bleed. The government

appealed, contending that the statute was constitutional.

In the current environment of rapidly developing and

integrating media technology, the once discrete worlds of print and

, A description of the amici is attached as Appendix A.

electronic media are discrete no longer. Amici once devoted

exclusively to the publication of books and magazines are now or

soon will be making some of those same materials available on-

line via telephone lines linked te personal computers and via

coaxial cables connected to television sets. Indeed, the expansion

of appellee Playboy Entertainment Group, Inc. (“Playboy”) from

print into cable television exemplifies the exciting fluidity with

which content-providers are approaching the expanding potential

of the new media to reach wider audiences. Thus, the

constitutional issues presented by Section 505 of the Act directly

affect all media.

Amici submit this brief to highlight the very real danger of

allowing the government to enact legislation targeting currently

unpopular speech. When the government restricis politically

disfavored but constitutionally protected speech -- the very kind of

speech at issue here -- it violates the rights not only of the

restricted creators and distributors, but also of mainstream

consumers who depend upon a wide variety of materials and who

would rather discriminate in their consumption themselves than

allow the government to dictate those choices.’

In the past, manv of the amici have brought actions in both

federal and state courts to assert the unconstitutionality of laws

infringing on the First Amendment. See, e.g. Virginia v.

American Booksellers Ass'n, Inc., 484 U.S. 383 (1988); American

Booksellers Ass'n, Inc. v. Hudrut, 771 F.2d 323 (7 Cir. 1985),

aff'd, 475 U.S. 1001 (1986); Video Software Dealers Ass'n v.

Webster, 968 F.2d 684 (8" Cir. 1992); Village Books v.

Bellingham, No. C88-1470 (W.D. Wash. Feb. 9, 1989); American

Booksellers Ass'n, Inc. v. McAuliffe, 533 F. Supp. 50 (N.D. Ga.

1981); Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d

. The Court has assiduously protected the “right to receive

information and ideas.” See, e.g. Virginia Pharmacy Bd v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748, 757 (1976); Consolidated

Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 541 (1980); Central

Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557

(1980).

520 (Tenn. 1993); Leech v. American Booksel'ers Ass'n, Inc., 582

S.W.2d 738 (Tenn. 1979).

Section 505 of the Act continues a disturbing trend by

Congress of regulating so-called “indecent” but non-obscene

speech.’ This trend, if unimpeded, will substantially erode the

ability of amici to publish, distribute and otherwise disseminate

mainstream materials with significant literary, artistic, political and

scientific value. Despite the Supreme Court’s clear refusal to

expand the regulation of indecent speech beyond the broadcast

medium,’ Congress has begun wielding a hatchet where the

constitution mandates a scalpel. In this case, the government

attempts to regulate “indecent” audio and visual signal bleed from

scrambled programming on cable channels “primarily dedicated to

sexually-oriented programming.” While this regulatory scheme is

limited in scope, amici are concerned that, if upheld here, this

vague and unconstitutional censorial standard could be applied to

the speech that they present.

SUMMARY OF ARGUMENT

“Indecency” is an inappropriate and constitutionally

incorrect standard. In F.C.C. v. Pacifica, 438 U.S. 726 (1978), the

Supreme Court carved out only a narrow exception to the

prohibition against content-based regulation of constitutionally

protected speech, recognizing the great danger in limiting non-

obscene speech with societal value. However, Congress has now

begun legislating concerning indecency in a multitude of media

within the telecommunications industry. Such congressional

activism in the regulation of speech is doubly alarming when the

. See, e.g, Cable Consumer Protection and Competition Act of

1992, Pub. L. No. 102-385, 106 Stat. 1460, Section 10 (

indecent speech in public and leased access cable television), 47 U.S.C.

§§ 531, 532(h), 532(j), 558 (1999); Communications Decency Act of The

Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56,

Sections 502, 230 (regulating indecent communications on the Internet),

47 U.S.C. §§ 223, 230 (1999).

: Reno v. ACLU, 521 U.S. 844, 867-70 (1997); Sable

category of regulated speech includes material of educational and

other serious value.

Instead of employing the adequate protection to minors

afforded by the obscenity standards, Congress borrows the mantle

of the state’s right to safeguard children and misapplies it in a rush

to suppress so-called “indecent” speech. Ginsberg v. New York,

390 U.S. 629 (1968), sanctioned state involvement in monitoring

children’s exposure to certain types of speech to the extent it aided

parental authority, as long as it remains available to adults. When

courts have permitted regulation of indecent speech, they have

done so only where it was clear that parents had no means to do so

themselves. Section 505 supplants parental authority by imposing

automatic scrambling despite the ready availability of parental

control through the use of lockboxes. Congress has also, through

the enactment of Section 505, violated the limitations on regulation

of indecent speech as enunciated in Sable Communications of

California, Inc. v. F.C.C., 492 U.S. 115 (1989). Congress no

longer feels the need to justify its encroachment on the rights of

adult receivers of speech with legislative findings describing the

needs and comparative effectiveness of its regulation. Such

findings are essential to the judiciary’s ability meaningfully to

assess the magnitude of the state’s interest and the appropriateness

of the means of regulation. Such findings are lacking in this

instance. Further, in supplanting parental opportunities for control,

Congress is usurping their role as protector of minors and ignoring

its mandate to regulate constitutionally protected speech only when

there are no means available that are less restrictive of First

Amendment rights. The Act is also unconstitutional because it

employs the unconstitutionally vague standard “indecent” in

describiiug the speech to be regulated.

Finally, the Act rests upon the assumption that the First

Amendment protection of identical material varies depending on

who the speaker is, even if the nature of the speech is the same.

This is a dangerous notion that violates the Equal Protection

Guarantee of the Fifth Amendment.”

ARGUMENT

I

THE USE OF AN INDECENCY STANDARD IS

INAPPROPRIATE AND UNCONSTITUTIONAL. IT GOES

BEYOND MILLER/GINSBERG AND IS VAGUE

Section 505 of the Act is yet another attempt to legislate

application of the vague, amorphous “indecency” standard to

“protect” minors under the age of 18. This Court, recognizing the

First Amendment implications of such “protection,” created in

Ginsberg v. New York, 390 U.S. 629 (1968), as modified in

Miller v. California, 413 U.S. 15 (1973), a three-part test for

determining whether material which is First Amendment protected

as to adults is unprotected as to minors. That test requires that

material, in order to be constitutionally unprotected as to a minor,

taken as a whole, must

(i) predominantly appeal to the prurient, shameful or

morbid interest of minors;

(ii) be patently offensive to prevailing standards in the

adult community as a whole with respect to what

is suitable material for minors; and

(iii) lack literary, artistic, political or scientific value.

< Because the three-judge district court found Section 505

unconstitutional on First Amendment grounds, it did not “reach the merits

of the other claims put forward by Playboy, that § 505 is

unconstitutionally vague and that § 505 violates the Equal Protection

guarantee of the Fifth Amendment” Playboy Entertainment Group,

Inc. v. United States of America, et al., 30 F. Supp. 2d 702, 720, n. 24 (D.

Del. 1998). This Court, of course, is free to reach those merits left

unexamined by the court below.

Material under the Miller/Ginsberg test can be barred from

distribution to minors, so long as such prohibition does not unduly

infringe on adult access; it is obscene as to minors and is not

constitutionally protected as to them. Material which is protected

under Miller/Ginsberg has First Amendment protection, whether

the recipient be adult or child. Most importantly, under the third

prong of the test, material having serious value remains

constitutionally protected as to minors, irrespective of its sexually

explicit content.

Following the suggestion of the Supreme Court in

Virginia v. American Booksellers Ass'n, Inc., 484 U.S. 383 (1988),

many states have held that when material is restricted from access

by all minors as a class, in order to fall within the restricted class,

material must be obscene to the most mature group of 17-year

olds.© Virginia v. American Booksellers, 372 S.E.2d 618 (Va.

1989); American Booksellers v. Virginia, 882 F.2d 125 (4th Cir.

1989); American Booksellers v. Webb, 919 F.2d 1493 (11th Cir.

1990), cert. denied, 500 U.S. 942 (1991); Davis-Kidd

Booksellers v. McWherter, 866 S.W.2d 520 (Tenn. 1993).

Section 505 does not apply the accepted Miller/Ginsberg

obscenity standard. Rather, it applies an “indecency” standard.

While indecency is not defined in the statute, the Federal

Communications Commission (the “FCC”), by rule making, has

defined indecency as the description or depiction of “sexual or

excretory activities or organs in a patently offensive manner as

measured by contemporary community standards for the cable or

other MVPD medium.” 11 F.C.C. Red. 5386, at 4-5 (March 5,

1996); 12 F.C.C. Red. 5212 (April 17, 1996). The FCC’s

interpretation of the word “indecent” does not bring the Act within

the Miller/Ginsberg standards and it does not cure the Act’s

vagueness problems for the reasons that follow.

. Until the Child Online Protection Act, Pub. L. No. 105-277, 112

Stat. 2681, 47 U.S.C. § 231 (1999) (“COPA”), no federal statute used the

Miller/Ginsberg standard. The interplay between COPA and Virginia v.

American Booksellers has not been determined.

It is important to delineate a number of crucial differences

between the obscenity standard and indecency, even as thus

defined:

(a) “Indecent” material is protected by the First

Amendment as to minors. Obscene material under

the Miller/Ginsberg definition is not.

(b) “Indecent” material includes material which has

serious literary, artistic, political or scientific value

to minors. Obscene material under the

Miller/Ginsberg formula does not.

(c) “Indecency” and “patently offensive” are terms

which are unconstitutionally vague. While the

Miller/Ginsberg test is at times difficult to apply,

it has developed meaning over the years and, most

importantly, the safety net of serious value

protects against the subjective aspect of its first

two prongs.

While this Court permitted indecency to be channeled into

delineated time slots in F.C.C. v. Pacifica, 438 U.S. 726 (1978),

this Court has since that decision regularly and repeatedly stressed

the fact that the ruling is aarrow, applied to broadcast only and

governed by the facts of that case. See, eg. Sable

Communications of California, Inc. v. F.C.C., 492 U.S. 115, 127-

28 (1989); Bolger v. Youngs Drug Products Corp., 463 U.S. 60

(1983). In Denver Area Educ. Telecommunications Consortium v.

F.C.C., 518 U.S. 727, 751 (1996), four justices appeared to accept

Justice Breyer’s conclusion that indecency may not be vague,

although the concept “depends on context . . ., degree . . ., and the

time of broadcast.” However, the subsequent decision of this

Court in Reno v. American Civil Liberties Union, 521 U.S. 844

(1997), made it clear that indecency is not a constitutionally

appropriate standard outside the factual context of the Pacifica

case.

In Reno v. ACLU, this Court distinguished the facts of

Pacifica from the Communications Decency Act of 1996

(the “CDA”) (which was, like Section 505,

Telecommunications Act of 1996) as follows:

As with the New York statute at issue in Ginsberg,

upheld in Pacifica and the CDA. First, the order

in Pacifica, issued by an agency that had been

regulating radio stations for decades, targeted a

specific broadcast that represented a rather

dramatic departure from traditional program

content in order to designate when -- rather than

whether -- it would be permissible to air such a

program in that particular medium. The CDA’s

broad categorical prohibitions are not limited to

particular times and are not dependent on any

evaluation by an agency familiar with the unique

characteristics of the Internet. Second, unlike the

CDA, the Commission’s declaratory order was not

punitive; we expressly refused to decide whether

the indecent broadcast “would justify a criminal

prosecution.” Jd, at 750. Finally, the

Commission’s order applied to a medium which as

a matter of history had “received the most limited

First Amendment protection,” id. at 748, in large

part of The

10

the radio audience might infer some sort of official

or societal approval of whatever was heard over

the radio, see 556 F.2d at 37, n.18. No such risk

attends messages received through the Internet,

which is not supervised by any federal agency.

Finally, unlike the conditions that prevailed when

Congress first authorized regulation of the

broadcast spectrum, the Internet can hardly be

considered a “scarce” expressive commodity.

521 U.S. at 867-70. These distinctions apply equally here. Cable,

unlike radio, and just like the Internet discussed in Reno, is a form

of communication which a citizen must affirmatively seek out and

buy; the risk of encountering indecent material by accident is

remote; there is little risk that members of the cable audience

might infer some sort of official or societal approval of whatever

was seen over the cable airwaves; and, finally, cable can hardly be

considered a “scarce” expressive commodity. The context in

which indecency was permitted to be regulated in Pacifica,

therefore, is inapplicable to this action.

Applying the Miller/Ginsberg obscenity standard to cable

transmissions would raise other constitutional requirements. Such

a statute would have to be, under Virginia v. American Booksellers

and its progeny, very narrow. American Booksellers, 484 U.S. at

383. The material restricted would have to be obscene to the most

mature group of 17-year-olds. Further, the statute could only

impose criminal liability on a provider if it comes to the provider's

attention that a juvenile is seeking to view such obscene material

and the provider fails to attempt to stop such viewing. Jd.

The statutory term “indecent” also is subjective and vague.

What is indecent to one is not necessarily indecent to another.

Even if one accepts the gloss that the FCC adds by its regulations,

the term “patently offensive” is equally subjective and vague. It is

this sort of vagueness in a statute affecting First Amendment

freedoms that the Court has said cannot be tolerated:

survive,

government may regulate in the area only with

narrow specificity. (emphasis added)

NAACP vy. Button, 371 U.S. 415, 432-33 (1963). See also Baggett

v. Bullitt, 377 U.S. 360, 372 (1964).

Any extension of the indecency standard beyond over-the-

air broadcasting concerns amici. It is particularly alarming to

ip

fits

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ati

it

‘hi

12

viewing options during most of the day and evening to what is

suitable for children.

Nor are amici assuaged by the fact that Section 505 is

apparently limited to indecent material on cable channels primarily

dedicated to sexually explicit material. If the utterly vague and

undefined indecency standard may constitutionally be applied to

the minimal leakage from such scrambled channels, there is no

reason why it could not constitutionally be applied to non-obscene

material of serious literary, artistic, educational, political, scientific

or entertainment value, deemed to be indecent by some, whether

on cable or any other of the various media which amici use. Such

an inroad on the First Amendment rights of both adults and minors

is intolerable.

SECTION 505 VIOLATES THE EQUAL PROTECTION

GUARANTEE OF THE FIFTH AMENDMENT BECAUSE

IT SELECTIVELY EXEMPTS NON-ADULT CABLE

STATIONS FROM ITS SCRAMBLING AND TIME

CHANNELING REQUIREMENTS

Section 505, without any ambiguity whatsoever,

specifically applies only to those distributors who provide

“sexually explicit adult programming or other programming that is

indecent on any channel of its service primarily dedicated to

sexually-oriented programming.” 47 U.S.C. § 56l(a) (1999).

Excluded are those distributors who, although they may provide

sexually explicit or “indecent” material, do so on cable channels

that are mot “primarily” dedicated to sexually-oriented

be seen on cable program services such as Home Box Office

(“HBO”) and Showtime, and similar fare can be purchased on pay-

per-view channels which are not “primarily” dedicated to the kind

of constitutionally protected material which Congress sought to

regulate via Section 505. In fact, Playboy licenses some of its fare

13

to such channels.’ And yet, these entities need not “fully scramble

~ .. when a significant number of children are likely to view

”" 47 U.S.C. § 561(a), (b) (1999). Because this statutory scheme

pBstremeh ne sat abt ipe ne on tiomtaner bene

to sexually-oriented programming on the basis of the content of

their speech (i.e., indecent, but not obscene programming), it runs

afoul of the Equal Protection Guarantee of the Fifth Amendment

and hence is invalid.

The Fifth Amendment of the United State Constitution

provides in relevant part that “No person shall... be deprived of

life, liberty, or property, without due process of law([.J” U.S.

Const. amend. V. This Court has consistently held that the

protections afforded by the Equal Protection Clause

Fourteenth Amendment vis-a-vis state action (i.e. “[njo State

shall... deny to any person within its jurisdiction the equal

protection of the laws”), are also available with respect to actions

by the Federal Government. Bolling v. Sharpe, 347 U.S. 497

(1954). The Equal Protection Clause, in turn, requires that

classification in laws, at a minimum, meet a standard of rationality

and, in cases involving important rights such as the First

Amendment, meet a standard of strict scrutiny. Attorney General

of New York. v. Soto-Lopez, 476 U.S. 898, 904 (1986) (“Whenever

a state law infringes a constitutionally protected right, we

undertake intensified equal protection scrutiny of that law.”). See

also Bery v. City of New York, 7 F.3d 689, 699 (2d Cir. 1996)

2

e

, Playboy Trial Exhibit No. 5, submitted to the court below in

connection with Playboy's application for a preliminary injunction,

consisted of a list of films licensed by Playboy to HBO including, but not

limited to, films such as Fanny Hill, Married People, Single Sex 2 and

Sorceress.

14

(Equal Protection Clause of the Fourteenth Amendment is violated

where city cannot articulate a compelling need for requiring a

general vendor's license for visual art while written material may

be sold and distributed without a license), cert. denied, 520 U.S.

1251 (1997).

This Court has therefore noted that the concerns of both

Cranes lasin ss UAE oD nae wae

U.S. 233, 250-51 (1936) (a license tax for publications of more

than 20,000 is a violation of the First Amendment). See also Texas

Monthly, Inc. v. Bullock, 489 U.S. | (1989) (tax exemption based

on content of publication violates the First Amendment).

A regulatory ordinance passed [by a city] pursuant

to a general legislative grant of power must be

reasonable and not arbitrary and operate uniformly

on all persons carrying on the same business under

the same conditions.

Similarly, following the lead of this Court, federal courts

a compelling government interest, constitutionally invalid. In

Action for Children's Television v. F.C.C., 58 F.3d 654 (D.C. Cir.

1995), cert. denied, 516 U.S. 1043 (1996), for example, the United

States Court of Appeals for the District of Columbia Circuit

generally approved the adoption of a safe harbor approach to

regulate free, over-the-air broadcasting. But it nevertheless struck

down the discriminatory application of the indecency rules,

whereby the law permitted certain public broadcasters to begin

transmitting indecent programming at 10:00 p.m., instead of

midnight, as was the rule for all other licensees. The court found

that such a “selective exemption” or “preferential safe harbor” for

before that hour and the constitutional viability of the more

restrictive safe harbor.” /d. at 668. The court found that such

“disparate treatment” left it “no choice but to hold that the section

is unconstitutional insofar as it bars the broadcasting of indecent

speech between the hours of 10:00 p.m. and midnight” because

“Congress ... fail[ed] to explain how this disparate treatment

advanced its goal of protecting young minds from the corrupting

influences of indecent speech[.]” Jd. at 668-69. There is a similar

infirmity to Section 505 — if the evil to be eradicated is the

momentary unscrambled image and sound of indecent sexual

behavior, then applying the absolute scrambling mandate to one

provider but not to others undermines the very argument for

mandating absolute scrambling in the first place. Furthermore, this

discrimination cannot be jurtified under the guise of addressing a

problem “one step at a time” because, although this Court has

upheld some targeted classifications on the theory that the

legislature may adopt incremental solutions, see, e.g.,

Williamson v. Lee Optical of Okl., 348 U.S. 483, 488-89 (1955),

there is no presumption of validity where a classification turns on

the content of speech.*

Cc. The Act’s Discriminatory Treatment Of

Similarly Situated Providers Of

Constitutionally Protected Speech

Concerns Amici Beyond The Facts Of This

Case

Amici do not suggest that Section 505 would be

constitutional even if it applied to ail distributors of “sexually

explicit adult programming or other programming that is

indecent.” 47 U.S.C. § 561(a) (1999). To the contrary — for the

reasons set forth above (and for the reasons articulated by F ‘oy

and adopted by the court below), Section 505, even if it were of

general applicability, would violate the First Amendment because

. Carey v. Brown, 447 U.S. 455, 461-62 (1980); Police Dep't of

City of Chicago v. Mosley, 408 U.S. 92, 95 (1972).

17

it uses the unconstitutional indecency standard and because it does

not employ the least restrictive means of addressing the problem of

signal bleed. However, it is still the case that the statute blatantly

discriminates against one class of constitutionally protected

speakers as opposed to other similarly situated speakers. The fact

that the statute does not operate with an even hand is evidence in

and of itself that it is not constitutional. See Church of the Lukumi

Babalu Ave. v. City of Hialeah, 508 U.S. 520 (1993) (city

ordinance prohibiting the ritual slaughter of animals by a specific

group violates the First Amendment because, among other reasons,

it does not apply to other slaughterers of animals).

Furthermore, if permitted in this limited context, the

discriminatory concept underlying Section 505 of the Act could be

applied to providers of other types of constitutionally protected

speech such as amici. If the Court were to conclude that Section

505 is not violative of the Equal Protection Guarantee of the Fifth

Amendment, there would be nothing amiss in forcing one specific,

perhaps unpopular, provider of speech to take special precautions

and shoulder special financial burdens to “protect youth,” while

not imposing similar burdens on other providers of the same or

similar speech. All members of amici, and therefore by extension

the reading public, would be at risk.

“Nowhere are the protections of the Equal Protection

Clause more critical than when legislation singles out one or a few

for uniquely disfavored treatment.” News America Pub., Inc. v.

F.C.C., 844 F.2d 800, 813 (D.C. Cir. 1988). Because Section 505

selectively burdens one provider of constitutionally protected

speech while other providers of the same or similar speech are

unburdened, and does so on the basis of a characterization of the

overall content of that provider’s speech and without any rational

or compelling reason for doing so, it is violative of the Fifth

Amendment’s Equal Protection Guarantee and hence is

constitutionally invalid.

CONCLUSION

For the reasons set forth above, as well as the reasons set

forth in the decision below, the judgment below should be

affirmed and Section 505 of the Act declared unconstitutional.

Dated: September 24, 1999

Respectfully submitted,

Michael A. Bamberger

es acy Nath & Rosenthal

| 1221 Avenue of the Americas

David J. Shapiro New York, New York 10020

Of Counsel (212) 768-6700

Counsel of Record for

Amici Curiae

A-1

APPENDIX A: THE AMICI

The American Booksellers Foundation for Free Expression

(“ABFFE”) was organized in 1990. The purpose of ABFFE is to

inform and educate booksellers, other members of the book

industry, and the public about the dangers of censorship and to

promote and protect the free expression of ideas, particularly

freedom in the choice of reading materials.

The Association of American Publishers, Inc. (“AAP”) is

the major national association in the United States of publishers of

general books, textbooks and educational materials. Its

approximately 200 members include most of the major commercial

book publishers in the United States. AAP members publish most

of the general, educational, and religious books produced in the

United States.

; The Comic Book Legal Defense Fund (“CBLDF") is an

publishers and distributors, as well as the broader community of

specialty retailers and readers.

The Freedom To Read Foundation is a not-for-profit

organization established in 1969 by the American Library

Association to promote and defend First Amendment rights, to

foster libraries as institutions that fulfill the promise of the First

A-2

The Motion Picture Association of America, Inc. is a not-

for-profit corporation founded in 1922 for the purpose of

promoting the interest of the motion picture industry in the United

States and helping the industry maintain high standards and public

goodwill.

The National Association of College Stores, Inc. is a trade

association comprised of approximately 3,000 college stores

located throughout the United States.

The National Association of Recording Merchandisers is

an international trade association whose more than 1,000 members

represent recorded entertainment retailing, wholesaling,

distributing and manufacturing.

The Periodical and Book Association of America, Inc. is

an association of magazine and paperback book publishers who

rely on newsstand sales and who distribute magazines and books

through independent national distributors, wholesalers and retailers

throughout the United States and Canada.

The Publishers Marketing Association (“PMA”) is a

nonprofit trade association representing more than 2,000

publishers across the United States and Canada. The PMA

members in their marketing efforts to the trade.

The Recording Industry Association of America, Inc.

(“RIAA”) is a trade association whose member companies

produce, manufacture and distribute over 90% of the sound

recordings sold in the United States. The RIAA is committed to

protecting the free expression rights of its member companies.

The Video Software Dealers Association is the trade

association for the home video entertainment industry. It

represents more than 3,500 member companies in North America.