Petition for Writ of Certiorari — Pacifica Foundation v. Federal Communications Commission

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Suprems Court, U.S.

() FILED

DB xBQD SEP 26 1995

me Ur itit CLERK

N THE

Supreme Court of the Gnited States

OCTOBER TERM, 1995

PACIFICA FOUNDATION; NATIONAL FEDERATION OF

COMMUNITY BROADCASTERS; PUBLIC RADIO INTERNATIONAL;

NATIONAL ASSOCIATION OF COLLEGE BROADCASTERS;

INTERCOLLEGIATE BROADCAST SYSTEM;

PEN AMERICAN CENTER; ALLEN GINSBERG,

Petitioners,

Vv.

FEDERAL COMMUNICATIONS COMMISSION

AND UNITED STATES OF AMERICA,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

HARVEY SILVERGLATE ERIC M. LIEBERMAN

SILVERGLATE & GOOD Counsel of Record

83 Atlantic Avenue LAURIE EDELSTEIN

Boston, MA 02110 LAURENCE R. HELFER

RABINOWITZ, BOUDIN, STANDARD,

JOHN CRIGLER KRINSKY & LIEBERMAN, P.C.

HALEY BADER & POTTS 740 Broadway - Fifth Floor

4350 North Fairfax Drive New York, NY 10003-9518

Suite 900 (212) 254-1111

Arlington, VA 22203

Counsel for Petitioners

(On Behalf of the National

Emergency Civil Liberties

Committee)

September 26, 1995

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. 1-800-347-8208

HF CRIT EE YY AONE te NINN ETD POR ENR LENE HRP Hf

LOR EN HE TOTS ET PE sy Se

QUESTIONS PRESENTED

l. Whether section 16(a) of the Public Telecommunications

Act of 1992, Pub. L. No. 102-356, § 16(a), 106 Stat. 949, 954,

and the Federal Communications Commission’s order

implementing section 16(a), which impose an eighteen-hour ban,

from 6 a.m. to midnight, on the broadcast of purportedly

indecent speech, violate the First Amendment to the

Constitution of the United States by failing to provide a

meaningful safe harbor during which constitutionally protected

speech of serious merit may be broadcast, particularly in light

of the government’s broad and vague definition of indecency?

2. Whether Congress and the Federal Communications

Commission have misconstrued FCC v. Pacifica, 438 U.S. 726

(1978), as an open invitation to censor broadcasts of purportedly

indecent speech regardless of their merit, thereby infringing the

First Amendment rights of the broadcast audience?

a Whether the First Amendment permits Congress and the

Federal Communications Commission to censor all speech

falling within the Commission’s broad and vague definition of

indecency on the unsupported theory that such speech harms

minors up to the age of 18 and that parents cannot be trusted to

superv.se their children?

LIST OF PARTIES

The following persons and entities are now before the

Court and were parties to proceeding No. 93-1100 in the United

States Court of Appeals for the District of Columbia Circuit:

Petitioners: Pacifica Foundation; National Federation of

Community Broadcasters; Public Radio International (formerly

American Public Radio); National Association of College

Broadcasters; Intercollegiate Broadcast System; PEN American

Center; and Allen Ginsberg.

Respondents: Federal Communications Commission and

United States of America.

The following persons and entities were parties to

proceeding No. 93-1092 in the United States Court of Appeals

for the District of Columbia Circuit, the case with which No.

93-1100 was consolidated on appeal:”

Petitioners: Action for Children’s Television; American

Civil Liberties Union; The Association of Independent

Television Stations, Inc.; Capital City/American Broadcasting

Co., Inc.; CBS, Inc.; Fox Television Stations, Inc.; Greater

Media, Inc.; Infinity Broadcasting Corporation; Motion Picture

Association of America, Inc.; National Association of

Broadcasters; National Public Radio; People for the American

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

Service; Radio-Television News Directors Association;

Reporters Committee for Freedom of the Press; and Society of

Professional Journalists.

Respondents: Federal Communications Commission and

United States of America.

y Although the two cases, Pacifica Foundation v. FCC, No. 93-

1100 and Action for Children's Television v. FCC, No. 93-1092, were

consolidated on appeal, petitioners in this instant action retained their full |

party status, filed separate briefs, and presented oral argument. |

RULE 29.1 STATEMENT

Petitioners Pacifica Foundation, National Federation of

Community Broadcasters, Public Radio International, National

Association of College Broadcasters, Intercollegiate Broadcast

System, PEN American Center, and Allen Ginsberg have no

parent companies or subsidiaries to list pursuant to Rule 29.1 of

the Rules of the Supreme Court.

TABLE OF CONTENTS

PAGE

QUBD EID PEERED cece ceicevess) dciede i

Fg 5 POP TPEEEPREL CLO CIEL PEE ii

RASS MENS GUPTEEEE dice be ceceetbeueene's iii

pre ee rer eee Eye rey vii

CPE Sbtecdecceencetcbwnnernees l

i PE ee Ba oe Oe oe ead l

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED ........ l

STATENS GOP Bie CAR. osc ceices ee tewees 3

A. I eo so aE GS Cea vas 4

B. MEE CRE eee ee oes Sik sen 5

C. ro Ss ee ee ee ee ee 6

D. Yo eee Se reer ee rere 7

REASONS FOR GRANTING THE WRIT .......... 9

I. THE BAN ON BROADCAST INDECENCY

PRESENTS A QUESTION OF NATIONAL

og 8 RE eee re rs 1 ee 1]

* idk Mad

ee ee ee ee eee Pee ee eee

“

III.

CONCLUSION

THE COURT’S PRECEDENTS DO NOT

SUPPORT A MIDNIGHT TO 6 A.M. BAN ON

INDECENT BROADCASTS ..........-.

THE 6 A.M. TO MIDNIGHT BAN IS

UNSUPPORTED BY ANY EVIDENCE OF

HARM TO MINORS AND IS NOT

NARROWLY TAILORED TO SERVE THE

GOVERNMENT’S ASSERTED INTERESTS ..

A. There Is No Evidence That

Broadcast Indecency Harms

- rw eerie eae ee

B. The Safe Harbor Is Insufficiently

Tailored To Serve The

Government’s Interest In

Facilitating Parental Supervision

SE oi o606 Foe 0.56 0'e vee es

APPENDIX

En Banc Opinion, Nos. 93-1092, 93-1100,

United States Court of Appeals for the District

of Columbia Circuit (June 30, 1995) .......

Panel Opinion, Nos. 93-1092, 93-1100, United

States Court of Appeals for the District of

Columbia Circuit (November 23, 1993) ......

Report and Order, Federal Communications

Commission, Jn re Enforcement of Prohibitions

Against Broadcast Indecency in 18 U.S.C.

§ 1464 (January 22, 1993). ww cc ccc eves

op @ 2.8 6:8 2.2.60 64.829 8264 +e bee & tf Fe

Notice of Proposed Rule Making, Federal

Communications Commission, In re

Enforcement of Prohibitions Against Broadcast

Indecency in 18 U.S.C. § 1464

GOUT, SOU Sv Fe wee cdweccscowess

Order Granting Respondents’ Suggestion For

Rehearing In Banc, Nos. 93-1092, 93-1100,

United States Court of Appeals for the District

of Columbia Circuit (February 16, 1994)

Judgment, Nos. 93-1092, 93-1100, United States

Court of Appeals for the District of Columbia

COU CU Sak FUT «ted ccvseccetess

149a

vii

TABLE OF AUTHORITIES

CASES Page

Action for Children's Television v. FCC,

852 F.2d 1332 (D.C. Cir. 1988) (“ACT I") ... passim

Action for Children’s Television v. FCC,

932 F.2d 1504 (D.C. Cir. 1991) ("ACT II"),

cert. denied, US. __,

jee Bey Te) rer ree passim

Alliance for Community Media v. FCC,

56 F.3d 105 (D.C. Cw. 1995) .......... 12, 14, 28

Bolger v. Youngs Drug Products Corp.,

og eee 16, 24, 26, 27

Butler v. Michigan, 352 U.S. 380 (1957) .......... 16

Carey v. Population Services International,

og Re ere 24, 25

Edenfield v. Fane, _ __ US. _,

See a ED bss cS bo b:e ov 6 oe 6 oe 11, 20

Erznoznik v. City of Jacksonville,

et Ce ce et hbo s wkae sees ses 24

FCC v. League of Women Voters of California,

og EO, Eee ee 20

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

Ginsberg v. New York, 390 U.S. 629 (1968) ...... 21, 22

Viii

Meyer v. Nebraska, 262 U.S. 390 (1923) ........ 27, 28

Pierce v. Society of Sisters, 268 U.S. 510 (1925) ..... 27

Prince v. Massachusetts, 321 U.S. 158 (1944) ....... 28

R.A.V. v. City of Saint Paul, _ US. __,

S12 GR Bee” Sei eee es 9, 19

Rosenberger v. Rector and Visitors of the

University of Virginia, __ US. __,

ee ED ar rer rere 9

Rubin v. Coors Brewing Co., __ US. eu

505 BCE, Wa ee ee as hasan es cceven 11, 20

Runyon v. McCrary, 427 U.S. 160 (1976) .......... 27

Sable Communications of California, Inc. v. FCC,

Ge Ua. Fie CD | rervalvoneeeicscs passim

Schneider v. New Jersey, 308 U.S. 147 (1939) ....... 17

South Fork Broadcasting Corp. v. FCC,

oP U.56 19 GOL, Ge TR Se nei vecccens 14

Tinker v. Des Moines Ind. Community Sch. District,

S03 UE. SER CID: vane weer ee Sis KC 25

Turner Broadcasting System, Inc. v. FCC,

oe): ees ee passim

Wisconsin v. Yoder, 406 U.S. 205 (1972) .......... 28

CONSTITUTION

Constitution of the United States,

First Amendment .......-ccccceceecces passim

FEDERAL STATUTES, LAWS, AND REGULATIONS

UE RNB ce Coapaees eben 2,4

2B USL. © BSA). cociccvcc cases occsewenens |

e ik Col bs eer a ire oe ee er 3

AF USE: 6 GED. y6 vic 64 Sek Seweniicicedscecks 3

Pub. L. No. 100-459, 102 Stat. 2186 (1988) ......... 6

Public Telecommunications Act of 1992,

Pub. L. No. 102-356, 106 Stat. 949 ........ ye Be

Radio Act of 1927, Pub. L. No. 69-632,

OE EEE ob & ehh & 6c b80 owen 4

Pig et s ey} ee ey er ee ie Ae

ADMINISTRATIVE ORDERS.

NOTICES, AND LETTERS

In re Enforcement of Prohibitions Against Broadcast

Indecency in 18 U.S.C. § 1464,

PE soto Be. re fr ee er 7

In re Enforcement of Prohibitions Against Broadcast

Indecency in 18 U.S.C. § 1464,

gfe Be Fi. | eee ee ere ee 7, 29

In re Infinity Broadcasting Corp. of Pa.,

‘eset 8 err eee rs eo 3, 82

KLUC-FM, Notice of Apparent Liability,

ge ee ee ae ee ere Pee

KSD-FM, Notice of Apparent Liability,

Bet Be. Ee re rr eee en eT

Kansas City Television Ltd., Order, FCC 88-274

(released Aug. 5, 1988), vacated,

BF Ss i ye en 0 ooo

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

Mass Media Bureau (Oct. 26, 1989) ...........

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

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

Letter to Thomas Byrne from Chief, Mass Media Bureau

CARE, 7, Sd oh he is oe ee oes

New Indecency Enforcement Standards to be Applied to

All Broadcast and Amateur Radio Licenses,

BPA REPRO ee a eds cae es

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

reconsideration and clarification granted in

part, denied in part sub. nom. Infinity

Broadcasting Corp. of Pa., 3 F.C.C.R. 930

(1987), vacated in part and remanded sub. nom.

Action for Children’s Television v. FCC,

S52 F.26 13502 GRA. Gi, TRG cc cee cee ten

WLLZ, Notice of Apparent Liability,

OFA SO ENOE 6 hth ca edges seep ees

LEGISLATIVE HISTORY

138 Cong. Rec. S7308-22 (daily ed. June 2, 1993) . . 24, 25

OTHER AUTHORITIES

Comments of Action for Children’s Television,

et al., MM Docket No. 89-494 (filed with the

Federal Communications Commission

SE eG rk oe teeta eae 6 dee ee 27

Comments of Pacifica Foundation, et al.,

GC Docket No. 92-223 (filed with the

Federal Communications Commission

ee Set BR re ee eae 14, 29, 30

Comments of Pacifica Foundation, et al.,

MM Docket No. 89-494 (filed with the

Federal Communications Commission

PER I Se RATA E le ered cee ewe. 14

FCC Investigating; Group W Says Indecency Finding

Against KYW-TV Philadelphia Would be

Censorship, Communications Daily,

1 ee ek ee ee ee ee 13

Nielsen Television Index (Second Quarter 1992) ..... 16

RADAR 45 (Geri 1994S) kk ee Fe eee cee 16

Harry P. Warner, Radio & Television Law (1948) ..... 4

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT

Petitioners Pacifica Foundation, National Federation of

Community Broadcasters, Public Radio International, National

Association of College Broadcasters, Intercollegiate Broadcast

System, PEN American Center, and Allen Ginsberg respectfully

petition for a writ of certiorari to review the judgment of the

United States Court of Appeals for the District of Columbia

Circuit in this case.

OPINIONS BELOW

The en banc opinion of the court of appeals (la) is

reported at 58 F.3d 654 (D.C. Cir. 1995) (en banc). The panel

opinion of the court of appeals (69a) is reported at 11 F.3d 170

(D.C. Cir. 1993). The report and order of the Federal

Communications Commission amending 47 C.F.R. § 73.3999

(102a) is reported at 8 F.C.C.R. 704 (1993). The Federal

Communications Commission’s notice of proposed rule making

(135a) is reported at 7 F.C.C.R. 6464 (1992).

JURISDICTION

The judgment of the court of appeals was entered on

June 30, 1995 (151a). The jurisdiction of the Court is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

The First Amendment to the Constitution of the United

¥ References to "(__a)" are to the pages in the appendix to this

petition.

States provides in pertinent part:

Congress shall make no law . . . abridging the

freedom of speech, or of the press... .—

Section 1464 of Title 18 of the United States Code

provides:

Whoever utters any obscene, indecent, or

profane language by means of radio

communication shall be fined under this title or

imprisoned not more than two years, or both.

Section 16(a) of the Public Telecommunications Act of

1992, Pub. L. No. 102-356, § 16(a), 106 Stat. 949, 954,

provides:

The Federal Communications Commission

shall promulgate regulations to prohibit the

broadcasting of indecent programming --

(1) between 6 a.m. and 10 p.m. on any day by

any public radio station or public television

station that goes off the air at or before 12

midnight; and

(2) between 6 a.m. and 12 midnight on any day

for any radio or television broadcast station not

described in paragraph (1).

Section 73.3999 of Title 47 of the Code of Federal

Regulations provides:

(a) No licensee of a radio or television

broadcast station shall broadcast any material

which is obscene.

(b) No licensee of a public broadcast station, as

defined in 47 U.S.C. § 397(6), that goes off the

air at or before 12 midnight shall broadcast on

any day between 6 am. and 10 p.m. any

material which is indecent.

broadcast station not described in paragraph (b)

of this section shall broadcast. on any day

between 6 a.m. and 12 midnight any material

which is indecent.

STATEMENT OF THE CASE

Petitioners, a coalition of non-commercial educational

radio stations and distributors, broadcasting and literary

associations, and a. contemporary poet, brought this action in the

United States Court of Appeals for the District of Columbia

Circuit to review a January 22, 1993 Order of the Federal

Communications Commission ("FCC" or "Commission" (102a),

which imposes an eighteen-hour ban, from 6 a.m. to midnight,

on the broadcast of constitutionally protected speech that the

Commission deems to be indecent. The prohibition was

mandated by section 16(a) of the Public Telecommunications

Act of 1992, Pub. L. No. 102-356, § 16(a), 106 Stat. 949, 954

("Telecommunications Act"). .The court of appeals had

jurisdiction over this action under 28 U.S.C. § 2342(1) and 47

U.S.C. § 402(a). A unanimous panel of the court of appeals

vacated the FCC’s 1993 Order and held section 16(a) of the

Telecommunications Act unconstitutional because the

government had failed to tailor sufficiently its 6 a.m. to

midnight ban on constitutionally protected speech so as to

advance the asserted governmental interests without infringing

First Amendment rights. (69a.) Upon rehearing en banc,

however, the court of appeals in a 7 to 4 decision upheld

section 16(a), ruling that a 6 a.m. to midnight ban on indecent

broadcasts was constitutional. (la.) The court did so despite

two prior decisions of the same court, Action for Children’s

Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) (Ginsburg,

R.B., Robinson, and Sentelle, JJ.) ("ACT J"), which struck down

a virtually identical 6 a.m. to midnight ban, and Action for

Children’s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991)

(Mikva, Edwards, Thomas, JJ.) ("ACT II"), cert. denied, __

U.S. __, 112 S. Ct. 1281-82 (1992), which invalidated a 24-

hour ban on indecent broadcasts.

A. Background

Since the passage of the Radio Act of 1927, which first

prohibited the broadcast of “obscene, indecent, or profane

language,” Pub. L. No. 69-632, § 29, 44 Stat. 1162, 1172-73,

Congress and the FCC have periodically sought to ban or

restrict the broadcast of programs of unquestionable merit

because they purportedly contain material that may be

considered offensive or sexually suggestive.” For example, in

the 1930s, the FCC investigated several radio stations for

broadcasting a presentation of Eugene O’Neill’s Pulitzer Prize-

winnit.z play, Beyond the Horizon, and during the Spanish Civil

- War, it investigated both CBS and the NBC Blue Network for

broadcasting supposedly suggestive Spanish songs. Harry P.

Warner, Radio & Television Law § 34a at 339, 337 (1948).

More recently, in the 1970s, the FCC turned its attention

to the repeated use of what have become known as the "seven

dirty words.” In FCC v. Pacifica Foundation, 438 U.S. 726

(1978), a sharply-divided Court found that the FCC was within

its authority to find "indecent" under 18 U.S.C. § 1464 the

"repetitive" and “deliberate” utterance of words denoting

"excretory or sexual activities or organs . . . in an afternoon

v Federal law, 18 U.S.C. § 1464, currently provides:

Whoever utters any obscene, indecent, or profane

language by means of radio communication shall be

fined under this title or imprisoned not more than two

years, or both.

broadcast when children are in the audience... ." Id. at 739.

However, in so doing, the Court repeatedly "emphasize[d] the

narrowness of [its] holding,” id. at 750, and made clear that

"questions concerning possible action in other contexts were

expressly reserved for the future.” Jd. at 734.

- Following the Court’s ruling in Pacifica, the FCC, for

the next decade, limited enforcement of its indecency regulation

to material involving the repetitive and deliberate use for shock

value of the so-called seven dirty words -- the Pacifica

situation. See In re Infinity Broadcasting Corp. of Pa., 3

F.C.C.R. 930 § 4 (1987) ("Reconsideration Order"). In

addition, the FCC took no action against broadcasters who

broadcast so-called "indecent" speech after 10:00 p.m. Jd. But

then, in 1987, the FCC suddenly announced that it was

substantially expanding its regulation of broadcast indecency,

and concurrently issued rulings that three broadcasters, two of

which were public radio stations, had violated the new policy.

New Indecency Enforcement Standards to be Applied to All

Broadcast and Amateur Radio Licenses, 2 F.C.C.R. 2726

(1987). Instead of confining itself to the narrow strictures of

Pacifica, the FCC determined that it would consider "indecent"

any speech encompassed by its generic definition of indecency

-- any "language or material that depicts or describes, in terms

patently offensive as measured by contemporary community

standards for the broadcast medium, sexual or excretory

activities or organs." Id. A number of petitioners sought

reconsideration of the FCC’s notice. On reconsideration, the

FCC reaffirmed its broader enforcement policy, as well as

narrowed the safe harbor for the broadcast of so-called

"indecent" speech to the hours between midnight and 6 a.m.

Reconsideration Order, 3 F.C.C.R. 930 4 5, J 27, n.47.

B. ACT I

A wide range of petitioners challenged the FCC’s 1987

Reconsideration Order as violating the First Amendment. In

ACT I, 852 F.2d 1332 (D.C. Cir. 1988), the court of appeals

struck down the FCC’s 6 a.m. to midnight prohibition on the

broadcast of indecent speech, the same prohibition at issue here,

as unconstitutional. In particular, the court emphasized that

given the "less than precise definition of indecency," id. the

FCC was obligated to implement a more "reasonable safe

harbor" period to "allow scope for the first amendment shielded

freedom and choice of broadcasters and their audiences .. . .”

Id. at 1343, n.18. The court further concluded that in light of

the FCC’s “avowed objective . . . not to establish itself as

censor but to assist parents in controlling the material young

children will hear," id. at 1334, the FCC was required to adopt

a "“securely-grounded channeling rule" that would “most

effectively promote parental -- as distinguished from

government -- control." Jd. at 1344. The court thus remanded

the matter to the FCC for "a full and fair hearing . . . of the

times at which indecent material may be broadcast." Jd.

Cc. ACT II

Before the FCC was able to carry out the court’s

mandate, Congress passed an appropriations rider directing the

FCC to promulgate regulations imposing a 24-hour ban on

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

2186, 2228 (1988). In light of the Court’s opinion in Sable

Communications of California, Inc. v. FCC, 492 U.S. 115

(1989), striking down a blanket ban on indecent telephone

services on First Amendment grounds, however, the court of

appeals directed the FCC to conduct "a full and fair hearing on

the issue of the propriety of indecent broadcasting" prior to

promulgating any such regulations. Order, Action for

Children’s Television v. FCC, No. 88-1916 (D.C. Cir. Sept. 13,

1989). In response to the court of appeals’ order, the FCC

issued a notice of inquiry and conducted rule making

proceedings. Instead of endeavoring to provide the "full and

fair hearing" the court of appeals ordered, the FCC declared that

the goal of the notice of inquiry was "to compile a record in

support of Congress’ imposition of a 24-hour ban on the

broadcast of indecent material." In re Enforcement of

Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464,

4 F.C.C.R. 8358 J 1 (1989). Notwithstanding that the

uncontroverted evidence demonstrated that for large periods

during the day virtually all children in the broadcast audience

were under the supervision of parents and adults, the FCC

issued a report concluding that a complete ban on the broadcast

of indecent speech was justified. In re Enforcement of

Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464,

5 F.C.C.R. 5297 (1990).

In ACT II, 932 F.2d 1504 (D.C. Cir. 1991), the court of

appeals struck down this blanket ban on the broadcast of

indecent speech. Relying on the principles set forth in ACT I,

which the Court reaffirmed in Sable, the court of appeals again

found that the First Amendment required the FCC to designate

"some reasonable period” as a safe harbor for the broadcasting

of speech that might be considered indecent. Jd. at 1509.

Indeed, the court held that not even "Congress itself" could

totally ban indecent material. Jd. The court thus once again

remanded the case to the FCC with yet another directive for "a

full and fair hearing" to determine at what times indecent speech

could be broadcast. Jd. at 1510.

D. ACT III

Before the FCC held hearings pursuant to the court’s

mandate in ACT II, Congress once again intervened, enacting

the Telecommunications Act. Section 16(a) of the Act required

the FCC to promulgate a new rule prohibiting the broadcast of

indecent speech from 6 a.m. to midnight. On October 5, 1992,

Y The Act allowed public broadcast stations that go off the air at

or before midnight an additional two hours, between 10 p.m. and

midnight, during which they could broadcast indecent material.

the FCC issued a notice of proposed rule making, seeking

comments on revisions to 47 C.F.R. § 73.3999 to implement the

new 6 a.m. to midnight ban. (135a.) The FCC stated in its

notice that because Congress had already “balanced the

competing interests affected by the regulation of broadcast

indecency,” the rule making proceeding would be “quite

narrow" in focus and "confined to the matter of updating the

Commission’s record.” (141a.)

On January 22, 1993, the Commission released an order

adopting regulations enforcing the indecency prohibitions

prescribed by section 16(a) of the Telecommunications Act.

(102a.) In attempting to justify the eighteen-hour ban imposed

on the broadcast of indecent speech, the FCC contended that its

interest in regulating broadcast indecency was not "restricted to

ensuring that parents have an opportunity to supervise their

children’s listening and viewing," but also encompassed “the

government’s independent interest in ensuring the well being of

minors” regardless of parental supervision. (107a-108a.) The

FCC also asserted an interest in protecting “the right of all

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

privacy of their homes.” (110a.)

In support of its regulation, the FCC relied almost

exclusively on the record compiled in its 1990 rule making

proceeding in support of a 24-hour prohibition, which found

that “significant” numbers of persons under 18 are in the

broadcast audience at all hours (1 13a), and on its contention that

many of those persons are not “effectively supervise{d]" with

respect to their exposure to television and radio “during all

times of the day." (127a.) Based on this “evidence,” the FCC

concluded that the 6 a.m. to midnight ban "reasonably balances

the compelling interest of protecting children from exposure to

indecent broadcast material at all times against the interests of

broadcasters and adults." (120a-121a.)

A broad range of petitioners again challenged the

Commission’s ban and on November 23, 1993, in ACT III, a

unanimous panel of the court of appeals struck down section

16(a) of the Telecommunications Act and vacated the FCC’s

1993 Order implementing this section. (69a.) The panel

concluded that the government’s 6 a.m. to midnight ban was not

sufficiently tailored and thus abridged First Amendment rights.

According to the court, the government wholly failed to take

‘nto account the First Amendment rights of adults and older

minors in determining when indecent speech could be broadcast

or to provide a reasonable period during which "viewers could

exercise a meaningful choice to view the material while still

awake." (93a.)

The court of appeals granted the government's

suggestion for rehearing en banc, and on June 30, 1995, the

court of appeals en banc reversed the panel’s decision, finding

that the 6 a.m. to midnight ban imposed by section 16(a) was

constitutional. (1a.)

REASONS FOR GRANTING THE WRIT

“At the heart of the First Amendment lies the principle

that each person should decide for him or herself the ideas and

beliefs deserving of expression, consideration and adherence.

Our political system and cultural life rest upon this ideal.”

Turner Broadcasting Sys., Inc. v. FCC, __ U.S. __, __» 114

S. Ct. 2445, 2458 (1994) ("TBS"). From this central tenet flows

the equally axiomatic propositions that "the government may not

regulate speech based on its substantive content or the message

it conveys," Rosenberger v. Rector and Visitors of the Univ. of

Virginia, _U.S.__, ___, 115 S. Ct. 2510, 2516 (1995), and

that such restrictions are "presumptively invalid." R.A.V. v. City

of Saint Paul, __ U.S. __,__, 112S. Ct. 2538, 2542 (1992).

The en banc decision of the court of appeals, upholding

the 6 a.m. to midnight ban on the broadcasting of indecent

speech, flies in the face of these bedrock constitutional

principles.“ In upholding the broadcast ban, with its all-

encompassing and open-textured definition of indecency, the

court of appeals denies to millions of Americans the ability to

choose what programs to see and hear in "a medium that has

become a vital part of the Nation’s communication system."

TBS, 114 S. Ct. at 2461. If this ruling is allowed to stand,

millions of Americans will be precluded from receiving

broadcasts of serious literary and artistic works, such as those

of petitioner Allen Ginsberg, as well as discussions of

significant social and political issues such as AIDS, rape, war,

and adult sexuality. Instead, they will be unconstitutionally

limited to watching and hearing only programming fit for

children. See Sable, 492 U.S. at 127.

The court of appeals decision also misconstrues FCC v.

Pacifica Foundation, Inc., 438 U.S. 726 (1978), as an open

invitation to the government to censor any form of broadcast

indecency, regardless of its political, social, literary, or artistic

merit. The Court’s precedents simply do not support such a

ban. In Pacifica itself, see 438 U.S. at 734-35, 742, 750, and

in later decisions, see, e.g., Sable, 492 U.S. at 127, the Court

has stressed the "emphatically narrow holding" of Pacifica,

which was based on the repeated use of specific words in a

specific broadcast in the early afternoon. Nothing in Pacifica

exempts courts from "apply[ing] the most exacting scrutiny to

regulations that suppress, disadvantage, or impose differential

2 Although the court of appeals majority ultimately concluded that

section 16(a) was unconstitutional insofar as it contained an exception

permitting public radio and television stations that go off the air at or

before midnight to broadcast indecent speech after 10 p.m., the court held

that "standing alone, the midnight to 6 am. safe harbor is narrowly

tailored to serve the Government’s compelling interest in the well-being

of our youth.” (25a-26a.) In so holding the court "invite[d] Congress to

extend the 6 a.m. to midnight ban to all broadcasters, without exception.”

(3la.) (Edwards, C.J., dissenting). Accordingly, the instant petition

squarely presents the Court with the constitutionality of the 6 am. to

midnight indecency ban.

burdens on speech because of its content." TBS, 114 S. Ct. at

2459. Indeed, the Court has recently reaffirmed that the

government may restrict "{s]exual expression which is indecent

| but not obscene” only "to promote a compelling interest [and]

if it chooses the least restrictive means to further the articulated

interest." Sable, 492 U.S. at 126.

Finally, the decision below errs in its analysis of the two

interests the government asserts in support of imposing a

sweeping prohibition of purportedly indecent broadcasts: a

concern for the health and well-being of minors and the

promotion of parental supervision over their children. (13a.)

For each of these interests, the government must provide

substantial evidence that the harms it seeks to avoid are genuine

and that its restriction of protected expression will alleviate

those harms to a substantial degree. Equally important, the

government bears the burden of demonstrating that the

indecency ban is carefully tailored to achieve its professed goals

and burdens no more speech than is absolutely necessary. See

TBS, 114 S. Ct. at 2470-72; Sable, 492 U.S. at 126. See also

Rubin v. Coors Brewing Co., __ U.S. __, __, 115 S. Ct.

1585, 1592-93 (1995); Edenfield v. Fane,__ U.S. __,__

113 S. Ct. 1792, 1800 (1993). Application of these standards

here exposes the constitutional infirmity of Congress’ action.

The lack of any evidence that purportedly indecent broadcasts

harm children, the imprecise way in which the broadcast ban

achieves the government’s interests, and the failure to consider

the First Amendment rights of adults and older children, as well

as less speech-restrictive alternatives, all compel the conclusion

that section 16(a) violates the First Amendment.

I. THE BAN ON BROADCAST INDECENCY

PRESENTS A QUESTION OF NATIONAL

IMPORTANCE

{ A reading of the majority’s opinion below erroneously

| suggests that all indecent speech is entitled only to the marginal

Tt ——————<—<——

First Amendment protection given to hard core pornography that

is not technically obscene. (12a.) The only specific broadcasts

to which the majority refers contained "explicit references to

masturbation, ejaculation, breast size, penis size, sexual

intercourse, nudity, urination, oral-genital contact, erections,

sodomy, bestiality, menstruation and testicles." (6a.) See also

(17a) (referring to indecent broadcasts as “sexually explicit

material just this side of legal obscenity"). By focusing on this

litany of graphic sexual and excretory acts, the court of appeals

majority seeks to diminish the constitutional magnitude of

Congress’ actions by suggesting that there is no serious

expressive message to be found in any indecent broadcast.

The Court, however, has repeatedly and unambiguously

affirmed that "[s]exual expression which is indecent but not

obscene is protected by the First Amendment." Sable, 492 1) S

at 126. Furthermore, what the government may deem

"indecent" speech is "not confined merely to material that

borders on obscenity -- ‘obscenity light’"; rather, it encompasses

a wealth of "literarily, artistically, scientifically, and politically

meritorious material." Alliance for Community Media v. FCC,

56 F.3d 105, 130 (D.C. Cir. 1995) (en banc) (Wald, J.,

dissenting). The FCC’s imprecise, generic definition makes this

point clear. The Commission has stated that it will consider as

"indecent" any

language or material that, in context, depicts or

describes, in terms patently offensive as

measured by contemporary community standards

for the broadcast medium, sexual or excretory

activities or organs.

(104a.) And although the Commission considers the "merit" of

a broadcast as "one of many variables" in determining whether

particular material is patently offensive, it has "reject[ed] an

approach that would hold that if a work has merit, it is per se

not indecent." Reconsideration Order, 3 F.C.C.R. 930 ¥ 17.

Indeed, the Commission’s recent actions demonstrate

with frightening clarity the wide range of literary, artistic,

scientific, and political speech that it may censor, including

news stories, informational programs, political advertising,

serious drama, motion pictures, musical recordings, satirical

material, and works with political and sociological themes.*

The works of authors such as petitioner Allen Ginsberg, Walt

Whitman, and Norman- Mailer, speeches and interviews by

cultural figures such as Susan Sontag, a prize-winning

biography of Miles Davis, a reading by African-American and

dl The Commission has made clear that a wide range of meritorious

programs are not exempt from its indecency regulations. See, e.g., KSD-

FM, Notice of Apparent Liability, 6 F.C.C.R. 3689 (1990) (“while the

newsworthy nature of broadcast material and its presentation in a serious,

newsworthy manner would be relevant contextual considerations in an

indecency determination, they are not, in themselves, dispositive factors”);

see also (122a) (noting petitioners’ "request to make news and public

affairs programs entirely exempt from indecency enforcement" without

granting request); FCC Investigating; Group W Says Indecency Finding

Against KYW-TV Philadelphia Would be Censorship, Communications

Daily, Apr. 26, 1993, at 3 (report on FCC investigation of "Jane Wallace

Live" television program dealing with Philadelphia adult establishment);

Letter to Mr. and Mrs. Ronald Orle from Chief, Mass Media Bureau

(Apr. 7, 1988) (reviewing informational program on sex education for

teenagers); Letter to Hon. John E. Bourne, Jr., from Chief, Mass Media

Bureau (Oct. 26, 1989) (reviewing political advertisement concerning the

word "clocksucker" in reference to mayor’s desire to purchase clock for

City Hall); Pacifica Foundation, Inc., 2 F.C.C.R. 2698 (play dealing with

AIDS and homosexuality), reconsideration and clarification granted in

part, denied in part sub. nom. Infinity Broadcasting Corp. of Pa., 3

F.C.C.R. 930 (1987), vacated in part and remanded sub. nom. ACT I, 852

F.2d 1332 (D.C. Cir. 1988); Letter to Thomas Byrne from Chief, Mass

Media Bureau (Apr. 7, 1988) (reviewing radio presentation of Ulysses);

Kansas City Television Ltd., Order, FCC 88-274 (released Aug. 5, 1988)

(film “Private Lessons"), vacated, 4 F.C.C.R. 6706 (1989); KLUC-FM,

Notice of Apparent Liability, 6 F.C.C.R. 3695 (1990) (recording of song

“Erotic City" by Prince); WLLZ, Notice of Apparent Liability, 6 F.C.C.R.

3698 (1989) (song satirizing male attitudes toward sexuality).

Korean poets held in the wake of the Rodney King beating,

musical genres, such as blues, hip-hop and rap, and a wide

range of subjects such as rape, abortion, AIDS, and the

experiences of Vietnam War veterans -- none of these are

excluded from the specter of severe sanctions. See Comments

of Pacifica Foundation, et al.. GC Docket No. 92-223, at 8-9

(filed with Commission Nov. 6, 1992 and part of record below);

Alliance for Community Media, 56 F.3d at 129.

Equally as dangerous, broadcasters -- particularly small

non-commercial radio stations such as petitioners here -- who

fear adverse action by the Commission are likely to engage in

self-censorship to screen out television and radio programs of

unquestionable social and political merit. For example, the fear

of sanctions has caused petitioner Pacifica Foundation to

discontinue broadcasting the poems of petitioner Allen

Ginsberg, one of the great American poets, whose work is freely

broadcast in other nations. To avoid sanctions, Pacifica was

also forced to expend scarce staff and costly attorney time

editing and expurgating The Grapes of Wrath so that it could be

broadcast on Thanksgiving Day 1989. See Comments of

Pacifica Foundation, et al.. MM Docket No. 89-494, at 25-26

(filed with Commission Feb. 20, 1990 and part of record

below).” In short, the effect of the FCC’s indecency ban is to

make the airwaves of this country unavailable for its greatest

artists, its most influential thinkers, and its most sensitive issues.

Indeed, it is precisely because the Commission’s

definition of indecency sweeps so broadly that the contours of

a reasonable safe harbor when indecent programs may

permissibly be broadcast is an issue of critical constitutional

magnitude. In ACT I, petitioners challenged the FCC’s

definition of indecency as vague and overbroad. Then Judge

The risk of self-censorship is all the more probable given the

FCC’s statutory authority to impose hundreds of thousands of dollars in

civil forfeitures, which may take years to be judicially reviewed. See

South Fork Broadcasting Corp. v. FCC, 59 F.3d 1249 (D.C. Cir. 1995).

Ginsburg noted petitioners’ arguments with concern, but held

that Pacifica precluded an "an inferior court from addressing

this question on the merits" and that the issue should be

resolved by "Higher Authority." 852 F.2d at 1338, 1339. In

invalidating the FCC’s 6 a.m. to midnight ban on indecent

broadcasts, however, Judge Ginsburg concluded that, taken

together, the “uncertainty generated by a less than precise

definition of indecency" plus the absence of a "securely-

grounded channeling rule" unduly infringec the rights of

Americans to receive protected expression. Jd. at 1342, 1344.

In short, “the chill brought about by the Commission’s open-

textured definition of indecency" makes a reasonable safe harbor

a constitutional necessity. (61a) (Wald, J., dissenting).

In determining the constitutional contours of the safe

harbor, the Court’s decision in Sable is instructive. In that case,

the Court unanimously struck down a total ban on telephcne

transmissions of indecent speech to adults as a violation of the

First Amendment. 492 U.S. at 126-31. The government

asserted that a total ban was the most effective, indeed, the only

completely effective means to achieve its compelling objective

of protecting children from exposure to indecent telephone

communications. The Court dismissed this argument as "quite

unpersuasive."” Jd. at 128. Although accepting that anything

short of the total ban would not be "fail-safe" or "foolproof," id.

at 130-31, n.10, the Court nevertheless concluded that the flat

ban was unconstitutional because its "denial of adult access to

telephone messages which are indecent but not obscene far

exceeds that which is necessary to limit the access of minors to

such messages.” Jd. at 131. Sable thus demonstrates that even

if a regulation is the most -effective means of achieving the

government’s compelling interests, it will still violate the First

Amendment if it burdens substantial amounts of speech that are

not obscene by adult standards.

Although Sable did not address the propriety of a less

than total ban on indecent speech, the Court suggested that such

a restriction can pass constitutional muster only if it does not

"den[y] adults their free speech rights by allowing them to [see

and hear] only what [i]s acceptable for children.” Jd. at 127.

See also Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 73

(1983); Butler v. Michigan, 352 U.S. 380, 383-84 (1957).

Accordingly, any safe harbor Congress creates and the FCC

implements must, at a minimum, allow adults a meaningful

opportunity to receive the wide variety of socially significant

speech that may be transmitted over the Nation’s airwaves.

The Telecommunications Act’s 6 a.m. to midnight

broadcast ban manifestly does not satisfy this constitutional

requirement. As the evidence submitted to the Commission

demonstrates, the ban bars television and radio broadcasts

during those hours when the overwhelming majority of

American adults are listening.” It is unrealistic to expect that

the millions of adults who do not currently watch television or

listen to the radio after midnight could or would rearrange their

lives to benefit from a safe harbor limiting indecent speech to

the wee hours of the morning. In short, as then Judge Ginsburg

concluded in ACT IJ, 852 F.2d at 1335, the 6 a.m. to midnight

broadcast ban "stretch[es] to all but the hours most listeners

{and viewers] are asleep" and thus "effectively denies adults

access to constitutionally-protected material."”

2 For example, the audience for the four commercial broadcast

networks (ABC, CBS, NBC, and FOX) drops sharply after midnight:

while 47.0 million adults view network-affiliated stations between 10 p.m.

and 11 p.m., only 16.9 million adults do so between midnight and 1:00

a.m. See Nielsen Television Index (Second Quarter 1992). Similarly,

while 11.7 million adults listen to radio between 10 p.m. and 11 p.m.,

only 7.4 million do so between midnight and 1 am. See RADAR 45

(Spring 1992) (figures based on audience per quarter hour). The

audiences decrease still further after 1:00 am. Jd.

% The court of appeals majority conceded that “the number of

adults watching television and listening to radio after midnight are

admittedly small," but found this fact to be of no constitutional

importance in light of the "alternatives means” adults have of “satisfying

Il. THE COURT’S PRECEDENTS DO NOT SUPPORT

A MIDNIGHT TO 6 A.M. BAN ON INDECENT

BROADCASTS

The court of appeals majority relied on the Court’s

decision in Pacifica as providing critical support for Congress’

power to restrict indecent broadcasts. Emphasizing the Court’s

statements concerning the broadcast media’s "uniquely pervasive

presence in the lives of all Americans," including children, 438

U.S. at 748, the majority concluded that "radio and television

broadcasts may properly be subject to different -- and often

more restrictive -- regulation than is permissible for other media

under the First Amendment." (12a.)

Pacifica is too slender a reed to support the majority’s

analysis. In that case, the Court upheld an FCC decision

labeling as indecent a monologue by entertainer George Carlin

entitled "Filthy Words" broadcast over the radio at 2 o’clock in

the afternoon. 438 U.S. at 734-35, 750-51. The Court’s

decision was an explicitly circumscribed one, upholding only

the FCC’s ruling that sanctioned the broadcast of specific words

in a specific context at a particular time of day. Indeed, the

Court went out of its way "to emphasize the narrowness of our

holding." Jd. at 750. The Court also expressly refused to

their interest in indecent materials." (23a.) Contrary to the majority’s

suggestion, millions of Americans do not have access to these alternative

means of expression. See, e.g., TBS, 114 S. Ct. at 2454, 2461 (noting

that forty percent of Americans do not subscribe to cable). Moreover,

First Amendment jurisprudence does not sanction a restriction of

protected speech in one medium by reference to other media. See, e.g.,

Schneider v. New Jersey, 308 U.S. 147, 163 (1939) (“one is not to have

the exercise of his liberty of expression in appropriate places abridged on

the ground that it may be exercised in some other place"). Indeed,

reliance on alternative media could just as easily be asserted in support

of a total ban on indecent speech, which cannot survive constitutional

scrutiny under Sable and ACT II. It follows that the midnight to 6 a.m.

safe harbor must be analyzed solely by reference to the broadcast media.

address whether "broadcast audiences in the late evening contain

so few children that playing this monologue would be

permissible ...." Jd. at 750, n.28.

Recent decisions of the Court confirm this circumscribed

reading of Pacifica. In Sable, the Court expressly reaffirmed

that its holding in Pacifica was an “emphatically narrow” one.

492 U.S. at 127. And just two terms ago, the Court further

confined Pacifica to its facts, reiterating the dangers of .

governmental censorship of the broadcast media. See TBS, 114

S. Ct. 2445.

In TBS, the Court considered the constitutionality of the

Cable Television Consumer Protection and Competition Act of

1992 that required cable television systems to devote a portion

of their channels to the transmission of local broadcast

television stations. Although the Court characterized the

appellants’ concerns about content-based regulation of speech as

unfounded "in the present regulatory system," it was careful to

leave open the possibility that such arguments "might carry

greater weight" "[iJn a regime where Congress or the FCC

exercised more intrusive control over the content of broadcast

programming”:

[O]ur cases have recognized that Government

regulation over the content of broadcast

programming must be narrow, and that

broadcast licensees must retain abundant

discretion over programming choices. See FCC

v. League of Women Voters of Cal., 468 U.S., at

378-380, 386-392, 104 S.Ct. at 3116-3118,

3120-3124 (invalidating under the First

Amendment statute forbidding any

noncommercial educational statute that receives

grant from the ([Corporation for Public

Broadcasting] to “engage in editorializing");

Columbia Broadcasting System, Inc. v.

Democratic National Committee, 412 U.S., at

136, 93 S.Ct., at 2098 (describing "the risk of

an enlargement of Government control over the

content of broadcast discussion of public issues"

as being of “critical importance" to the First

Amendment).

Id. at 2464.

The court of appeals majority ignored these crucial

statements in TBS as well as the Court’s reassertion of the well-

settled constitutional rule that courts must "apply the most

exacting scrutiny to regulations that suppress, disadvantage, or

impose differential burdens on speech because of its content."

TBS, 114 S. Ct. at 2459. Only by misconstruing Pacifica

broadly and ignoring the Court’s subsequent narrow

interpretation of that case could the court of appeals fail to

recognize that the 6 a.m. to midnight broadcast ban is precisely

the sort of “intrusive control over the content of broadcast

programming” that raises the most serious First Amendment

concerns.

~ The Court in TBS declined to reconsider the “spectrum scarcity"

rationale articulated in Pacifica to support greater regulation of broadcast

media than other modes of expression, notwithstanding the repeated

criticism of courts and commentators. 114 S. Ct. at 2457. However, the

Court did express profound concern over situations, such as here, where

"Congress or the FCC exercise[] . . . intrusive control over the content of

broadcast programming.” TBS, 114 S. Ct. at 2464. Thus, even assuming

the validity of spectrum scarcity, the 6 a.m. to midnight ban on indecent

broadcasts is a “presumptively invalid” content-based regulation of speech,

RA.V. v. City of Saint Paul, 112 S. Ct. at 2542, which “pose[s] the

inherent risk that the Government seeks not to advance a legitimate

regulatory goal, but to suppress unpopular ideas or information or

manipulate the public debate through coercion rather than persuasion.”

TBS, 114 S. Ct. at 2458. Indeed, it is precisely because of broadcast’s

“uniquely pervasive presence in the lives of all Americans,” Pacifica, 438

U.S. at 748, that the government cannot be permitted to censor the

content of what is broadcast based upon its subjective view of what most

Americans would prefer to have excluded from their homes.

Ill. THE 6 A.M. TO MIDNIGHT BAN IS

UNSUPPORTED BY ANY EVIDENCE OF HARM

TO MINORS AND IS NOT NARROWLY

TAILORED TO SERVE THE GOVERNMENT’S

ASSERTED INTERESTS

The constitutional standards applicable to content-based

regulations of speech are well settled. Where, as here, "the

Government defends a regulation on speech as a means to

redress past harms or prevent anticipated harms, it must do

more than simply posit the existence of the disease to be cured."

TBS, 114 S. Ct. at 2470. Rather, it must "demonstrate that the

recited harms are real, not merely conjectural, and that the

regulation will in fact alleviate these harms in a direct and

material way." Jd. See also FCC v. League of Women Voters

of Cal., 468 U.S. 364, 391 (1984). In addition, the

government must assess "the actual effects of [the regulation] on

the speech of [those who are regulated]" and consider "the

availability and efficacy of ‘constitutionally acceptable less

restrictive means’ of achieving [its] asserted interests" to avoid

imposing unnecessary burdens on protected speech. 7BS, 114

S. Ct. at 2472 (quoting Sable, 492 U.S. at 129).

In undertaking this analysis, although a court must give

"substantial deference” to "Congress’ predictive judgments,”

those judgments are not "insulated from meaningful judicial

review altogether." TBS, 114 S. Ct. at 2471. On the contrary,

where First Amendment freedoms are at stake, "the deference

afforded to legislative findings does ‘not foreclose [a court’s]

independent judgment of the facts bearing on an issue of

The Supreme Court has applied these same evidentiary standards

in cases involving commercial speech. See, e.g, Coors Brewing Co., 115

S. Ct. at 1592-93; Edenfield, 113 S. Ct. at 1800. Given that regulations

of commercial speech merit only intermediate scrutiny under the First

Amendment, it follows a fortiori that a content-based regulation requiring

strict scrutiny must, at a minimum, meet the same evidentiary hurdles.

constitutional law.’ This obligation to exercise independent

judgment when First Amendment Rights are implicated . . . is

to assure that, in formulating its judgments, Congress has drawn

reasonable inferences based on substantial evidence." Id. at

2471 (quoting Sable, 492 U.S. at 129) (citations omitted)

(emphasis added).

In its enforcement order and before the court of appeals,

the Commission asserted two principal interests in support of

the 6 a.m. to midnight ban: (1) an interest in shielding children

from the harm of exposure to indecent broadcasts, and (2) an

interest in helping parents supervise their children. (107a-

110a.} The government has failed to satisfy its burden of

demonstrating that the broadcast ban in fact serves those

interests or is carefully tailored to limit its deleterious effect on

First Ainendment freedoms.

A. There Is No Evidence That Broadcast Indecency

Harms Children

While the Court has recognized that the government has

"a compelling interest in protecting the physical and

psychological well-being of minors,” Sable, 492 U.S. at 126, no

causal nexus has been established between broadcast indecency

and any physical or psychological harm to minors. The court

of appeals majority erroneously accepted the government’s

claim that harm to children from purportedly indecent speech

may be presumed as a matter of law, relying on Ginsberg v.

= The Commission also asserted a third interest in protecting adults

from exposure to indecent speech in the privacy of their own homes.

(110a.) Although the en banc court of appeals did not address this issue

given its analysis of the first two interests (13a), the panel properly

rejected the Commission’s argument as violating “the fundamental

principle of the First Amendment ‘that debate on public issues should be

uninhibited, robust and wide-open.’"” (80a) (quoting New York Times Co.

v. Sullivan, 376 U.S. 254, 270 (1964)).

New York, 390 U.S. 629 (1968). Ginsberg does not support

such a conclusion.

The Court there upheld a state statute forbidding the sale

to minors under 17 of literature defined as obscene for them,

even where such materials were "not obscene for adults." Jd. at

634. It did not rule that indecent speech causes harm to minors.

Rather, it wrestled with the question whether the legislature’s

definition and prohibition of obscene materials on the basis of

their prurient appeal to minors was rationally related to its

finding that such materials impaired their ethical and moral

development. Jd. at 641. Inasmuch as obscenity lies beyond

the outermost ambit of First Amendment protection, the Court

could not conclude that the statute’s regulation of obscenity had

"no rational relation to the objective of safeguarding such

minors from harm." Jd. at 643. This case, unlike Ginsberg,

concerns speech that is fully protected by the First Amendment

and thus must be analyzed under the strictest, rather than the

most lenient, standard of review. See Sable, 492 U.S. at 126.

Furthermore, in refusing to require any evidence of harm

to minors from indecent speech, the court of appeals majority

departed from the requirement in TBS and other cases that the

government "must do more than simply posit the existence of

the disease to be cured." TBS, 114 S. Ct. at 2470 (quotations

omitted). Not only is the presumption of harm inconsistent with

this constitutional mandate, but the record here does not contain

any evidence of harm to children resulting from exposure to

indecent broadcasts. Of the eight articles and reports to which

the Congressional sponsors of the broadcasting ban refer and to

which the FCC cites, five involve violence, not indecency, and

~ See (112a) (citing 138 Cong. Rec. at $7309-10 (June 2, 1992)

(statement of Sen. Helms) (citing studies: Surgeon General's Scientific

Advisory Committee on Television and Social Behavior, Television and

Growing Up: the Impact of Televised Violence (U.S. Pub. Health Serv.,

1972); Aimee D. Leifer & Donald F. Roberts, Children’s Responses to

Television Violence, in 2 Television and Social Behavior 43-180 (U.S.

the remaining three discuss sexual materials but do not account

for any harm.” These sources do not even attempt to document

any causal relationship between broadcast indecency and harm

to children. Indeed, at the oral argument before the en banc

court of appeals, “counsel for the Commission was unable to

cite to any study that found a causal connection between

exposure to indecent broadcast and psychological or other harm

to children." (55a) (Edwards, C.J., dissenting).

Even assuming arguendo that the government has a

compelling interest in protecting children from exposure to

purportedly indecent speech, the court of appeals majority

wholly ignored that in acting to suppress constitutionally

protected speech, the government must take into account the

First Amendment rights of adult viewers and minors and must

narrowly tailor its protection of children to avoid infringement

of those rights. See TBS, 114 S. Ct. at 2472. As the record

here clearly demonstrates, the government utterly failed to meet

these constitutional requirements.

First, there is simply no evidence that in fixing the

boundaries of the broadcast ban the government considered the

First Amendment rights of adults. Indeed, the record indicates

Dep’t of Health, Educ., and Welfare, John P. Murray et al. eds., 1972);

Robert M. Liebert, Television and Social Learning: Some Relationships

Between Viewing Violence and Behaving Aggressively, in 2 Television and

Social Behavior 1-42; Ellen Coughlin, /s Violence on TV Harmf.! To Our

Health? Some Scholars, a Vocal Minority, Say No, The Chron. Of Higher

Educ., Mar. 13, 1985, at 5; Erik Eckholm, Studies Link Teen-Age

Suicides, TV, N.Y. Times, Sept 11, 1986, at C13)).

+ See (112a) (citing 138 Cong. Rec. at $7309-10 (citing studies:

Shearon A. Lowery & Melvin L. De Fleur, Milestones in Mass

Communication Research: Media Effects 406-07 (2d ed. 1983); Elizabeth

J. Roberts, Television and Sexual Learning in Childhood, in 2 Television

and Behavior: Ten Years of Scientific Progress and Implications for the

Eighties 209-23 (Nat’l Inst. of Mental Health, David Pearl et al. eds.,

1982); 1 Television and Behavior 87 (Summary Report))).

precisely the contrary. The main principle guiding Congress’

determination of the boundaries of the broadcast ban was to find

a time when "the risk of children in the broadcast audience

would be. . . lessened." 138 Cong. Rec. $7308 (daily ed. June

2, 1992) (statement of Sen. Byrd). See also (125a-126a). By

focusing exclusively on the number of children in the audience,

the government failed to take into account the First Amendment

rights of adults viewers and listeners in receiving

constitutionally protected speech. Instead, the 6 a.m. to

midnight ban was arrived at solely on the basis that fewer

children are in the broadcast audience between the hours of

midnight and 6 a.m. than other times. As the panel decision

notes, the same judgment could even more assuredly been used

to support a 1:00 a.m. to 5:00 a.m. or 3:00 a.m. to 4:00 a.m.

safe harbor. (94a.) What the Constitution requires, however,

is a safe harbor in which there are few unsupervised young

children in the audience but in which adult viewers and listeners

have a meaningful opportunity to receive constitutionally

protected speech while still awake.

Second, and equally significant, the government failed

to consider the First Amendment rights of minors. The Court

has consistently held that minors "are entitled to a significant

measure of First Amendment protection," Bolger, 463 U.S. at

74, n.30 (quotations omitted). Indeed, in Erznoznik v. City of

Jacksonville, 422 U.S. 205 (1975), the Court specifically held

that minors, particularly older minors, have First Ameadment

rights to receive indecent material. "Speech that is neither

obscene as to youths nor subject to some other legitimate

proscription cannot be suppressed solely to protect the young

from ideas or images that a legislative body thinks unsuitable

for them." Jd. at 213-14. Rather, "[{i]n most circumstances, the

values protected by the First Amendment are no less applicable

when government seeks to control the flow of information to

minors." Jd. at 214 (footnote omitted). See also Carey v.

Population Servs. Int'l, 431 U.S. 678, 692, n.14 (1977)

("minors are entitled to constitutional protection for freedom of

speech"); Tinker v. Des Moines Ind. Community Sch. Dist., 393

U.S. 503, 511 (1969) ("In our system, students may not be

regarded as closed-circuit recipients of only that which the State

chooses to communicate. They may not be confined to the

expression of those sentiments that are officially approved.").

Here, the record contains absolutely no evidence that the

government considered the First Amendment interests of

maturing minors and tailoted the boundaries of its broadcast ban

accordingly. The government simply asserted that it had an

interest in protecting all "children" under 18 from indecent

broadcasts and decided to treat all children under 18 as a single

indiscriminate class for purposes of the broadcast ban. But it

offered no reasoned analysis or evidentiary basis for doing so.

See 138 Cong. Rec. $7308 (daily ed. June 2, 1992). Nor did it

demonstrate why its purported interest in shielding children

from indecent broadcasts automatically outweighs the child’s

own First Amendment rights up to her eighteenth birthday.

What is more, it is absurd for the government to

presume that "indecent" expression harms older children who

are regularly exposed in junior high school, high school, and

college to frank and detailed discussions of subjects such as sex

education, sexually transmitted diseases, and the works of

authors such as John Steinbeck, James Baldwin, Allen Ginsberg,

J.D. Salinger, and Alice Walker. That public authorities have

found these topics to be valuable for children’s education and

development makes the Commission’s presumption of harm

from broadcast indecency at best facetious.

Given the government’s failure to satisfy the careful

review and evidentiary hurdles 7’BS mandates or to consider the

First Amendment rights of adults and older minors, the 6 a.m.

to midnight broadcast ban cannot survive constitutional scrutiny.

Indeed, if the “unusually detailed statutory findings” in TBS

were insufficient to survive intermediate scrutiny, 114 S. Ct. at

2461, it follows a fortiori that the government’s arguments

cannot satisfy the more stringent test applicable to content-based

regulations of purportedly indecent speech, such as the ban here.

B. The Safe Harbor Is Insufficiently Tailored To

Serve The Government’s Interest In Facilitating

Parental Supervision Of Children ©

The second compelling governmental interest the

Commission identified and the court of appeals accepted is the

interest in facilitating parents’ ability to supervise their children.

Rather than attempting to determine whether the 6 a.m. to

midnight ban was the most narrowly tailored means of

achieving that interest, the majority simply accepted the

Commission’s assertion that, in light of the number of children

under 17 who have television sets or radios in their own rooms,

parents are unable to exercise "effective" control over the

watching and listening activities of their children. (14a.)

Contrary to the majority’s analysis, the relevant

constitutional inquiry is whether parents have the opportunity to

exercise control over their children, not whether that control

eliminates all risk of exposure to indecency. In Bolger, the

Court struck down a statute prohibiting advertisers from mailing

unsolicited advertisements for contraceptives to home addresses

because the ban was not narrowly drawn to achieve the

government’s interest. Although the government asserted that

the statute was designed to “aid{] parents’ efforts to discuss

birth control with their children," the Court reasoned that the

statute "provides only the most limited incremental support for

the interest asserted.” 463 U.S. at 73. Like the broadcast ban

at issue here, the statute burdened all adults by making it more

difficult for them to receive constitutionally protected speech,

while aiding only the narrow class of parents “who desire to

keep their children from confronting such mailings, [but] who

are otherwise unable to do so." Jd. Bolger teaches that the

government may not restrict indecent speech for adults by

arguing that parents are not in a position to supervise effectively

their children’s access to such speech. To the contrary, where

"material that is entirely suitable for adults” is concerned, courts

must presume that the overwhelming majority of parents are in

a position to engage in such supervision. Id.

The court of appeals majority also erred in accepting

that the government’s asserted interest in the well-being of

children extends to regulating children’s access to indecent

speech contrary to their parents’ wishes. The court merely

presumed that all parents desire to shield their children from

indecency but are unable as a practical matter to do so, thereby

permitting the government to take over their function as arbiter

of what children should see and hear. Such a presumption

conflicts with decades of judicial precedent.

In ACT I, then Judge Ginsburg properly identified the

government’s interest as assisting parents in choosing which

programs their children should be exposed to as a means of

promoting “parental -- as distinguished from government --

control." 852 F.2d at 1344 (emphasis added). See also id. at

1343 (noting that government had disavowed any interest in

"act{ing] in loco parentis to deny children access contrary to

parents’ wishes"). This articulation of the government’s

compelling interest accords with the constitutional right of

parents to rear their children in the manner they see fit, see,

e.g., Runyon v. McCrary, 427 U.S. 160, 177 (1976); Pierce v.

Society of Sisters, 268 U.S. 510, 534-35 (1925); Meyer v.

The empirical data submitted to the Commission supports the

conclusion that parents and guardians are in a position to supervise their

children should they choose to do so. The uncontroverted evidence in the

record demonstrates that there are virtually no unsupervised children in

the broadcast audience during much of the day. For example, throughout

the 8 p.m. to 6 a.m. safe harbor that the Commission has enforced since

1989, at least 98% of all persons under age 18 are in the presence of

parents or other adults, at school, or asleep. See Comments of Action for

Children’s Television, et al. MM Docket No. 89-494, at 32-33 &

Appendix C (filed with Commission Feb. 20, 1990 and made part of

record below). And during the 10 p.m. to 6 a.m. period that served as the

safe harbor in the decade following Pacifica, more than 93% of children

were under parental supervision and more than 99% were under adult

supervision. Id.

Nebraska, 262 U.S. 390, 400-02 (1923). This constitutionally-

protected right, which includes a parent’s decision to expose

children to indecent speech, can be limited only in narrow

circumstances, namely, when "it appears that parental decisions

will jeopardize the heath or safety of the child, or have a

potential for significant social burdens." Wisconsin v. Yoder,

406 U.S. 205, 234 (1972). See also Prince v. Massachusetts,

321 U.S. 158, 169-70 (1944).

An eighteen-hour ban on indecent broadcasts that

extends to virtually all hours when parents and children are

awake manifestly does not serve this interest. As Chief Judge

Edwards cogently explained in Alliance for Community Media,

56 F.3d at 145-46:

[A] law that effectively bans all indecent

programming . . . does not facilitate parental

supervision. In my view, my right as a parent

has been preempted, not facilitated, if I am told

that certain programming will be banned from

my ... television. Congress cannot take away

my right to decide what my children watch,

absent some showing that my children are in

fact at risk of harm from exposure to indecent

programming.

In regulating indecent expression then, the government’s

compelling interest must be to maximize -- rather than to

preempt -- parental choice while taking into account the First

Amendment rights of adults and older children. The record is

devoid of any sign of this constitutionally-mandated analysis.

The Cummission has not adduced any evidence to document

actual parental supervision, parental preferences, or the

effectiveness of parental control at different times during the

day and evening, evidence that might permissibly be used to

justify a less intrusive indecency ban. (56a) (Edwards, C.J.,

dissenting). Without giving more careful consideration to

those hours of the day and evening when parental control could

reasonably be relied upon in lieu of government regulation, the

Commission’s blanket censorship of indecent speech cannot

withstand First Amendment scrutiny.

Equally fatal to the government's position is the absence

of any mention of less speech-restrictive alternatives to the

eighteen-hour ban that could as effectively serve its asserted

interest in aiding parental supervision. In its enforcement order,

the Commission merely asserts, without elaboration, that its

broadcast ban is the least restrictive means available and that

other alternatives do not effectively further the government’s

interests. (130a.) Strikingly, the Commission makes no

mention of any such alternatives, or of the differing ways in

which children listen to radio as compared to watching

television.” If the "exacting scrutiny" mandated by TBS and

= Nor has the Commission cited to any station-specific or program-

specific data -- as opposed to data on children in the overall broadcast

audience -- that could support a more narrowly tailored safe harbor,

notwithstanding the fact that such data already exists. See ACT II, 932

F.2d at 1510. The Commission simply concluded, and the court of

appeals agreed, that such information "is not instructive because it does

not account for children’s grazing,” which involves random and rapid

tuning “through the entire channel menu in a short period of time."

(128a.) There is no evidence in the record, however, that grazing leads

to any significant viewing of indecent broadcasts.

a For example, there is uncontradicted evidence that the number

of children listening to public radio stations is statistically insignificant.

The teenage audience listening to public radio accounts for merely 0.2%

of teen listening generally and to virtuaily no percentage of total radio

listening. In re Enforcement of Prohibitions Against Broadcast Indecency

in 18 U.S.C. § 1464, 5 F.C.C.R. 5297, 5303 (1990). The evidence

reveals that children use radio differently than adults and only gradually

learn to use radio as a medium. See Comments of Pacifica Foundation,

et al., GC Docket No. 92-223, at Attachment A (filed with the

Commission Nov. 6, 1992 and part of record below). In fact, young

Sable means anything at all, the Commission must, at a

minimum, consider "constitutionally acceptable less restrictive

means," including a narrower ban specifically tailored to radio

broadcasts, before finding that the means chosen is the least

restrictive available.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

HARVEY SILVERGLATE' ERIC M. LIEBERMAN

Counsel of Record

JOHN CRIGLER LAURIE EDELSTEIN

LAURENCE R. HELFER

Counsel for Petitioners (On

Behalf of the National

Emergency Civil Liberties

Committee)

children up to 8 years old do not, for the most part, use radio. Access is

primarily a secondary experience as the child hears radio selections

chosen by his or her parents or others. Pre-teens (ages 8 to 11), even

when given independent access to radio, generally prefer other media,

such as television, or other forms of audio entertainment such as pre-

recorded cassettes or CDs. Jd. Teen use of radio lags far behind that of

adults. Teens listen to approximately one-third less radio than any other

age group. The weekly “cume” for teen listening to public radio is less

than five percent. This means that fewer than one in twenty teens tunes

into a public radio station for five minutes or more per week. /d.

As for television, the FCC has utterly ignored the existence of

blocking technology in which a so-called "V-chip" is placed in television

sets that allows parents to screen out programs or channels of their

choice. This new technology is "undoubtedly less speech-restrictive” than

a blanket broadcast ban and provides more effective supervision by

"allowing parents to choose what programs or stations to block.” (57a)

(Edwards, C.J., dissenting).

Se ee

Bnited States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued En Banc October 19, 1994

Decided June 30, 1995

No. 93-1092

Acrion FoR CHILDREN’S TELEVISION;

American Crvit Liserties UNION;

THE ASSOCIATION OF INDEPENDENT TELEVISION STATIONS, INC.;

CaprraL Crry/American Broapcastinc Co., Inc.;

CBS, Inc; Fox Te.evision Stations, INC.;

Greater Menu, Inc; Inriniry Broapcastinc CoRPORATION;

Motion Picrure Association oF America, INC.;

NATIONAL ASSOCIATION OF BROADCASTERS;

NationaL Pusiic Rapio; PEOPLE FOR THE AMERICAN Way;

Post-NEWSWEEK Srations, Inc.; PuBLic BROADCASTING SERVICE;

Rapio-TELEVISION News Directors ASSOCIATION;

ReEporTERS COMMITTEE FOR FREEDOM OF THE PRESS;

SocieTy OF PROFESSIONAL JOURNALISTS,

PETITIONERS

Vv.

FEDERAL COMMUNICATIONS COMMISSION;

Unrrep States oF AMERICA,

RESPONDENTS

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

No. 93-1100

Pacirica FounDATION;

NATIONAL FEDERATION OF COMMUNITY BROADCASTERS;

American Pusiic Rapio;

NATIONAL ASSOCIATION OF COLLEGE BROADCASTERS;

INTERCOLLEGIATE Broapcast SysteM; PEN AMERICAN CENTER;

ALLEN GINSBERG,

PETITIONERS

Vv.

FEDERAL COMMUNICATIONS COMMISSION;

Unrrep States or AMERICA,

RESPONDENTS

Petitions for Review of an Order of the

Federal Communications Commission

Timothy B. Dyk, with whom Barbara McDowell was on the

briefs, argued the cause for petitioners Action for Children’s

Television, et al

Eric M. Lieberman, with whom Thomas C. Viles and John

P. Crigler were on the briefs, argued the cause for petitioner

Pacifica Foundation.

Marjorie Heins was on the briefs for petitioner American

Civil Liberties Union. Steven R. Shapiro entered an appear-

ance.

James J. Popham was on the briefs for petitioner The

Association of Independent Television Stations, Inc.

Molly Pauker was on the briefs for petitioner Fox Televi-

sion Stations, Inc.

Dennis P. Corbett, Laura B. Humphries, and Steven A.

Lerman were on the briefs for petitioner Infinity Broadcast-

ing Corporation.

Henry L. Bauman was on the briefs for petitioner National

Association of Broadcasters.

Theodore A. Miles was on the briefs for petitioner National

Public Radio. Karen Christensen entered an appearance.

Andrew J. Schwartzman and Elliot M. Mincberg were on

the briefs for petitioner People for the American Way.

Martin Wald and Jonathan D. Blake entered appearances

for petitioner Post-Newsweek Stations, Inc. )

Nancy H. Hendry and Paula A. Jameson were on the

briefs for petitioner Public Broadcasting Service.

Joseph L. Scharff was on the briefs for petitioner Radio-

Television News Directors Association.

Jane E. Kirtley was on the briefs for petitioner Reporters

Committee for Freedom of the Press.

Bruce W. Sanford and Henry S. Hoberman were on the

briefs for petitioner Society of Professional Journalists.

Christopher J. Wright, Deputy General Counsel, Federal

Communications Commission (“FCC”), with whom William

E. Kennard, General Counsel, and Daniel M. Armstrong,

Associate General Counsel, FCC, and Assistant Attorney

General Frank W. Hunger and Barbara L. Herwig and Jacob

M. Lewis, Attorneys, U.S. Department of Justice, were on the

briefs, argued the cause for respondents. Jane E. Mago,

Clifford G. Pash, Jr., Renee Licht, and Peter Anthony Tenhu-

la, Counsel, FCC, entered appearances for respondents.

Before Epwarps, Chief Judge, and Wap, SitBERMAN, Buck-

Ley, Wituiams, Ginspurc, SEnTeLLE, HENpDeRSON, Ran-

poLPH, Rocers, and TaTet, Circuit Judges.

Opinion for the court filed by Circuit Judge Buck ey, in

which Circuit Judges SiLBERMAN, WILLIAMs, GinsBuRG, SEN-

TELLE, HENDERSON, and RANDOLPH concur.

Dissenting opinion filed by Chief Judge Epwarps.

Dissenting opinion filed by Circuit Judge Wap, in which

Circuit Judges Rocers and Taret join.

Buck.ey, Circuit Judge: We are asked to determine the

constitutionality of section 16(a) of the Public Telecommunica-

tions Act of 1992, which seeks to shield minors from indecent

radio and television programs by restricting the hours within

which they may be broadcast. Section 16(a) provides that,

with one exception, indecent materials may only be broadcast

between the hours of midnight and 6:00 a.m. The exception

permits public radio and television stations that go off the air

at or before midnight to broadcast such materials after 10:00

p.m.

We find that the Government has a compelling interest in

protecting children under the age of 18 from exposure to

indecent broadcasts. We are also satisfied that, standing

alone, the “channeling” of indecent broadcasts to the hours

between midnight and 6:00 a.m. would not unduly ourden the

First Amendment. Because the distinction drawn by Con-

gress between the two categories of broadcasters bears no

apparent relationship to the compelling Government interests

that section 16(a) is intended to serve, however, we find the

more restrictive limitation unconstitutional. Accordingly, we

grant the petitions for review and remand the cases to the

Federal Communications Commission with instructions to

revise its regulations to permit the broadcasting of indecent

material between the hours of 10:00 p.m. and 6:00 am.

I. Bacxcrounp

The Radio Act of 1927 provides that “[wJhoever utters any

obscene, indecent, or profane language by means of radio

communication shall be fined not more than $10,000 or im-

prisoned not more than two years, or both.” 18 U.S.C.

§ 1464 (1988). While all obscene speech is indecent, not all

indecent speech is obscene. The Supreme Court has defined

obscene material as

works which, taken as a whole, appeal to the prurient

interest in sex, which portray sexual conduct in a patent-

ly offensive way, and which, taken as a whole, do not

have serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24 (1973). In enforcing

section 1464 of the Radio Act, the Federal Communications

Commission defines “broadcast indecency” as

language or material that, in context, depicts or de-

scribes, in terms patently offensive as measured by con-

temporary community standards for the broadcast medi-

um, sexual or excretory activities or organs.

In re Enforcement of Prohibitions Against Broadcast Inde-

cency in 18 U.S.C. § 1464, 8 F.C.C.R. 704, 705 n.10 (1993)

(“1993 Report and Order”). This definition has remained

substantially unchanged since it was first enunciated in Jn re

Pacifica Foundation, 56 F.C.C.2d 94, 98 (1975).

While obscene speech is not accorded constitutional protec-

tion, “[s}exual expression which is indecent but not obscene is

protected by the First Amendment....” Sable Communica-

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

“The Government may, however, regulate the content of

[such] constitutionally protected speech in order to promote a

compelling interest if it chooses the least restrictive means to

further the articulated interest.” Jd. Noting that broadcast-

ing has received the most limited First Amendment protec-

tion because of its unique pervasiveness and accessibility to

children, the Supreme Court has held that the FCC may, in

appropriate circumstances, place restrictions on the broadcast

of indecent speech. See FCC v. Pacifica Foundation, 438

U.S. 726, 750-51 (1978) (“when the Commission finds that a

pig has entered the parlor, the exercise of its regulatory

power does not depend on proof that the pig is obscene.”).

In In re Infinity Broadcasting Corp. of Pa., 3 F.C.C.R. 930

(1987) (“Reconsideration Order”), the Commission reviewed

its decisions in three cases: In re Infinity Broadcasting

Corp. of Pa., 2 F.C.C.R. 2705 (1987), In re Pacifica Founda-

tion, Inc., 2 F.C.C.R. 2698 (1987), and In re Regents of the

University of California, 2 F.C.C.R. 2703 (1987). One of

these cases involved a morning broadcast; the other two

dealt with programs that were aired after 10:00 p.m. In each

of them, the agency found that a radio station had introduced

particularly offensive pigs into American parlors in violation

of section 1464. The offending morning broadcast, for exam-

ple, contained “explicit references to masturbation, ejacula-

tion, breast size, penis size, sexual intercourse, nudity, urina-

tion, oral-genital contact, erections, sodomy, bestiality,

menstruation and testicles.” | Reconsideration Order, 3

F.C.C.R. at 932 (internal quotation marks omitted). The

remaining two were similarly objectionable. See id. at 932-

33.

The FCC reaffirmed the Government interest in safeguard-

ing children from exposure to such speech and placed broad-

casters on notice that because

at least with respect to the particular markets involved,

available evidence suggested there were still significant

numbers of children in the audience at 10:00 p.m. ...

broadcasters should no longer assume that 10:00 p.m. is

automatically the time after which indecent broadcasts

may safely be aired. Rather, ... indecent material

would be actionable (that is, would be held in violation of

18 U.S.C. § 1464) if broadcast when there is a reasonable —

risk that children may be in the audience....

Id. at 930-31. The Commission noted, however, that it was

its “current thinking” that midnight marked the time after

which

it is reasonable to expect that it is late enough to ensure

that the risk of children in the audience is minimized and

to rely on parents to exercise increased supervision over

whatever children remain in the viewing and listening

audience.

Id. at 987 n.47.

In our review of the Reconsideration Order in Action for

Children’s Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988)

(“ACT I”), we rejected the argument that the Commission’s

definition of indecency was unconstitutionally vague and over-

broad. Jd. at 1388-40. But although we affirmed the declar-

atory ruling that found portions of the morning broadcast to

be in violation of section 1464, id at 1341, we vacated the

Commission’s rulings with respect to the two post-10:00 p.m.

broadcasts. Jd. In those instances, we considered the find-

ings on which the Commission rested its decision to be “more

ritual than real,” id, because the Commission had relied on

data as to the number of teenagers in the total radio audience

rather than the number of them who listened to the radio

stations in question. We were also troubled by the FCC’s

failure to explain why it identified the relevant age group as

children aged 12 to 17 when it had earlier proposed legislation

for the protection of only those under 12. Jd. at 1341-42.

We further concluded that “the FCC’s midnight advice, in-

deed its entire position on channeling, was not adequately

thought through.” Jd. at 1342.

Two months after our decision in ACT J, Congress instruct-

ed the Commission to promulgate regulations “enforc[ing] the

provisions of ... section [1464] on a 24 hour per day basis.”

Pub. L. No. 100-459, § 608, 102 Stat. 2186, 2228 (1988). The

Commission complied by issuing a regulation banning all

broadcasts of indecent material, which was immediately chal-

lenged by Action for Children’s Television and others. The

following year, we remanded the record to the Commission to

enable it to solicit information relevant to the congressionally

mandated 24-hour ban; and in 1989, the FCC issued a

“Notice of Inquiry” for that purpose. In re Enforcement of

Prohibitions Against Broadcast Indecency in 18 U.S.C.

§ 1464, 4 F.C.C.R. 8358 (1989) (“1989 NOI”).

After analyzing the public comment received in response to

the 1989 NOI, the Commission reported its conclusions in Jn

re Enforcement of Prohibitions Against Broadcast Indecency

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

In the 1990 Report, the FCC defined the category of persons

to be protected under section 1464 as “children ages 17 and

under.” Jd at 5301. It then found that because

the narrowness with which courts have interpreted “ob-

scenity” has commensurably broadened the range of

patently offensive material that could be deemed “inde-

cent” if broadcast ... [and in light of the evidence] that

there is a reasonable risk that significant numbers of

children ages 17 and under listen to radio and view

television at all times of day and night[,] ... the compel-

ling government interest in protecting children from

indecent broadcasts would not be promoted effectively by

any means more narrowly tailored than a 24-hour prohi-

bition.

Id. at 5297.

We reviewed the 24-hour ban in Action for Children’s

Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991) (“ACT II”).

We again rejected petitioners’ vagueness and overbreadth

arguments, but we struck down the total ban on indecent

broadcasts because “(our previous holding in ACT J that the

Commission must identify some reasonable period of time

during which indecent material may be broadcast necessarily

means that the Commission may not ban such broadcasts

entirely.” Jd. at 1509.

Shortly after the Supreme Court denied certiorari in ACT

II, 112 S. Ct. 1281 (1992), Congress again intervened, passing

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

102-356, 106 Stat. 949 (1992). Section 16(a) of the Act

requires the Commission to

promulgate regulations to prohibit the broadcasting of

indecent programming—

(1) between 6 am. and 10 p.m. on any day by any

public radio station or public television station that goes

off the air at or before 12 midnight; and

(2) between 6 a.m. and 12 midnight on any day for any

radio or television broadcasting station not described in

paragraph (1).

47 U.S.C. § 303 note (Supp. IV 1992). Pursuant to this

congressional mandate, the Commission published a notice of

proposed rulemaking, Jn re Enforcement of Prohibitions

Against Broadcast Indecency in 18 U.S.C. § 1464, 7 F.C.C.R.

6464 (1992), and, in 1993, it issued regulations implementing

section 16(a). 1993 Report and Order, 8 F.C.C.R. at 711; 47

C.F.R. § 73.3999 (1994). These are challenged in the petition

now before us.

II. Discussion

Petitioners present three challenges to the constitutionality

of section 16(a) and its implementing regulations: First, the

statute and regulations violate the First Amendment because

they impose restrictions on indecent broadcasts that are not

narrowly tailored to further the Government’s interest, which

petitioners define as the promotion of parental authority by

shielding unsupervised children from indecent speech in the

broadcast media; second, section 16(a) unconstitutionally dis-

criminates among categories of broadcasters by distinguish-

ing the times during which certain public and commercial

broadcasters may air indecent material; and third, the Com-

mission’s generic definition of indecency is unconstitutionally

vague. Petitioners also assert that our decisions in ACT /

and ACT II compel the rejection of the newly enacted restric-

tions both because there are insufficient data to justify the

new statutory ban and because the Commission continues to

include children ages 12 to 17 in the protected class.

The Commission argues that the Government’s interests

extend beyond facilitating parental supervision to include

protecting children from exposure to indecent broadcasts and

10a

safeguarding the home from unwanted intrusion by such

broadcasts. The Commission asserts that restricting inde-

cent broadcasts to the hours between midnight and 6:00 a.m.

is narrowly tailored to achieve these compelling governmental

interests. It defends the exception allowing public stations

that go off the air at or before midnight to broadcast such

materials after 10:00 p.m. on the basis that these stations

would otherwise have no opportunity to air indecent pro-

grams.

At the outset, we dismiss petitioners’ vagueness challenge

as meritless. The FCC’s definition of indecency in the new

regulations is identical to the one at issue in ACT JJ, where

we stated that “the Supreme Court’s decision in Pacifica

dispelled any vagueness concerns attending the [Commis-

sion’s] definition,” as did our holding in ACT J. 932 F.2d at

1508. Petitioners fail to provide any convincing reasons why

we should ignore this precedent.

We now proceed to petitioners’ remaining constitutional

arguments.

A. The First Amendment Challenge

It is common ground that “[{sJexual expression which is

indecent but not obscene is protected by the First Amend-

ment.” Sable, 492 U.S. at 126. The Government may, how-

ever,

regulate the content of constitutionally protected speech

in order to promote a compelling interest if it chooses the

least restrictive means to further the articulated interest.

Id. Thus, a restriction on indecent speech will survive First

Amendment scrutiny if the “Government’s ends are compel-

ling [and its] means [are] carefully tailored to achieve those

ends.” Id.

-The Supreme Court has “long recognized that each medium

of expression presents special First Amendment prob-

lems.... [OJf all forms of communication, it is broadcasting

that has received the most limited First Amendment protec-

tion.” Pacifica, 488 U.S. at 748 (citation omitted). The

lla

Court has identified two reasons for this distinction that are

relevant here:

First, the broadcast media have established a uniquely

pervasive presence in the lives of all Americans. Patent-

ly offensive, indecent material presented over the air-

waves confronts the citizen, not only in public, but also in

the privacy of the home, where the individual’s right to

be left alone plainly outweighs the First Amendment

rights of an intruder. ... Because the broadcast audi-

ence is constantly tuning in and out, prior warnings

cannot completely protect the listener or viewer from

unexpected program content. ...

Second, broadcasting is uniquely accessible to chil-

dren.... Other forms of offensive expression may be

withheld from the young without restricting the expres-

sion at its source. Bookstores and motion picture the-

aters, for example, may be prohibited from making inde-

cent material available to children. ... The ease with

which children may obtain access to broadcast material,

coupled with the concerns [over the well-being of youths]

recognized in Ginsberg [v. New York, 390 US. 629

(1968)], amply justifies special treatment of indecent

broadcasting.

Id. at 748-50. As Justice Powell observed in Pacifica,

[t]he difficulty is that ... a physical separation of the

audience [such as that possible in bookstores and movie

theaters] cannot be accomplished in the broadcast media. ~

.... This ... is one of the distinctions between the

broadcast and other media ... [that] justiflies] a differ-

ent treatment of the broadcast media for First Amend-

ment purposes.

438 U.S. at 758 (Powell, J., concurring in part and concurring

in the judgment). Despite the increasing availability of other

means of receiving television, such as cable (which is not

immune to the concerns we address today, see Alliance for

Community Media v. FCC, No. 93-1169, slip op. at 32-34

(D.C. Cir. June 6, 1995)), there can be no doubt that the

traditional broadcast media are properly subject to more

12a

regulation than is generally permissible under the First

Amendment.

Unlike cable subscribers, who are offered such options as

“pay-per-view” channels, broadcast audiences have no choice

but to “subscribe” to the entire output of traditional broad-

casters. Thus they are confronted without warning with

offensive material. See Pacifica, 438 U.S. at 748-49. This is

“manifestly different from a situation” where a recipient

“seeks and is willing to pay for the communication... .”

Sable, 492 U.S. at 128; see also Cruz v. Ferre, 755 F.2d 1415,

1420 (11th Cir. 1985) (distinguishing Pacifica from cases in

which cable subscriber affirmatively elects to have specific

cable service come into home).

In light of these differences, radio and television broadcasts

may properly be subject to different—and often more restric-

tive—regulation than is permissible for other media under the

First Amendment. While we apply strict scrutiny to regula-

tions of this kind regardless of the medium affected by them,

our assessment of whether section 16(a) survives that scruti-

ny must necessarily take into account the unique context of

the broadcast medium.

1. The compelling Government interests

In examining the Government’s interests in protecting chil-

dren from broadcast indecency, it is important to understand

that hard-core pornography may be deemed indecent rather

than obscene if it is “not patently offensive” under the

relevant contemporary community standards. The Second

Circuit, for example, has found that the “detailed portrayals

of genitalia, sexual intercourse, fellatio, and masturbation”

contained in a grab bag of pornographic materials (which

included such notorious films as “Deep Throat”) are not

obscene in light of the community standards prevailing in

New York City. United States v. Various Articles of Obscene

Merchandise, Schedule No. 2102, 709 F.2d 132, 134, 137 (2d

Cir. 1983). Therefore, as Justice Scalia has observed,

({tJhe more narrow the understanding of what is “ob-

scene,” and hence the more pornographic what is em-

braced within the residual category of “indecency,” the

13a

more reasonable it becomes to insist upon greater assur-

ance of insulation from minors.

Sable, 492 U.S. at 132 (Scalia, J., concurring).

The Commission identifies three compelling Government

interests as justifying the regulation of broadcast indecency:

support for parental supervision of children, a concern for

children’s well-being, and the protection of the home against

intrusion by offensive broadcasts. Because we find the first

two sufficient to support such regulation, we will not address

the third.

Petitioners do. not contest that the Government has a

compelling interest in supporting parental supervision of what

children see and hear on the public airwaves. Indeed, the

Court has repeatedly emphasized the Government’s funda-

mental interest in helping parents exercise their “primary

responsibility for [their] children’s well-being” with “laws

designed to aid [in the) discharge of that responsibility.”

Ginsberg v. New York, 390 U.S. 629, 639 (1968). This interest

includes “supporting parents’ claim to authority in their own

household” through “regulation of otherwise protected ex-

pression.” Pacifica, 438 U.S. at 749 (internal quotation

marks omitted).

Although petitioners disagree, we believe the Government’s

own interest in the well-being of minors provides an indepen-

dent justification for the regulation of broadcast indecency.

The Supreme Court has described that interest as follows:

It is evident beyond the need for elaboration that a

State’s interest in safeguarding the physical and psycho-

logical well-being of a minor is compelling. A democratic

society rests, for its continuance, upon the healthy, well-

rounded growth of young people into full maturity as

citizens. Accordingly, we have sustained legislation

aimed at protecting the physical and emotional well-being

of youth even when the laws have operated in the

sensitive area of constitutionally protected rights.

New York v. Ferber, 458 U.S. 747, 756-57 (1982) (internal

quotation marks and citations omitted); see also Prince v.

l4a

Massachusetts, 321 U.S. 158, 165 (1944) (“It is [in] the

interest of youth itself, and of the whole community, that

children be both safeguarded from abuses and given opportu-

nities for growth into free and independent well-developed

... Citizens.”).

While conceding that the Government has an interest in the

well-being of children, petitioners argue that because “no

causal nexus has been established between broadcast indecen-

cy and any physical or psychological harm to minors,” Joint

Brief for Petitioners at 32, that interest is “too insubstantial

to justify suppressing indecent material at times when par-

ents are available to supervise their children.” Jd. at 33.

That statement begs two questions: The first is how effective

parental supervision can actually be expected to be even when

parent and child are under the same roof; the second,

whether the Government’s interest in the well-being of our

youth is limited to protecting them from clinically measurable

injury.

As Action for Children’s Television argued in an earlier

FCC proceeding, “parents, no matter how attentive, sincere

or knowledgeable, are not in a position to really exercise

effective contro!” over what their children see on television.

In re Action for Children’s Television, 50 F.C.C.2d 17, 26

(1974). This observation finds confirmation from a recent

poll conducted by Fairbank, Maslin, Maullin & Associates on

behalf of Children Now. The survey found that 54 percent of

the 750 children questioned had a television set in their own

rooms and that 55 percent of them usually watched television

alone or with friends, but not with their families. Sixty-six

percent of them lived in a household with three or more

television sets. Compare 1989 NOI, 4 F.C.C.R. at 8361 (63

percent of households own more than one television and 50

percent of teenagers have a television in own bedrooms).

Studies described by the FCC in its 1989 Notice of Inquiry

suggest that parents are able to exercise even less effective

supervision over the radio programs to which their children

listen. According to these studies, each American household

had, on average, over five radios, and up to 80 percent of

children had radios in their own bedrooms, depending on the

15a

locality studied, id; two-thirds of all children ages 6 to 12

owned their own radios, more than half of whom owned

headphone radios. Jd. at 8363. It would appear that Action

for Children’s Television had a firmer grasp of the limits of

parental supervision 20 years ago than it does today.

With respect to the second question begged by petitioners,

the Supreme Court never suggested that a scientific

demonstration of psycho harm is required in order to

establish the constitutionality of measures protecting minors

from exposure to indecent speech. Sattar on aan

considered a New York State statute forbidding the sale to

minors under the age of 17 of literature displaying nudity

even where such literature was “not obscene for. adults... .”

390 U.S. at 634. The Court observed that while it was “very

doubtful” that the legislative finding that such literature

impaired “the ethical and moral development of our youth”

was based on “accepted scientific fact,” a causal link between

them “had not been disproved either.” Jd. at 641-42. The

Court then stated that it “d[id] not demand of legislatures

scientifically certain criteria of legislation. We therefore

cannot say that [the statute] ... has no rational relation to

the objective of safeguarding such minors from harm.” /d. at

642-43 (internal quotation marks and citations omitted).

In Bethel School District No. 403 v. Fraser, 478 U.S. 675,

684 (1986), the Court did not insist on a scientific demonstra-

tion of psychic injury when it found that there was a compel-

ling governmental interest in protecting high school students

from an indecent speech at a high school assembly. It noted

that its prior cases “recognize the obvious concern on the part

of parents, and school authorities acting in loco parentis, to

protect children—especially in a captive audience—from ex-

posure to sexually explicit, indecent, or lewd speech.” Jd. In

Bethel School District and Ginsberg, of course, the protection

of children did not require simultaneous restraints on the

access of adults to indecent speech. The Court, however, has

made it abundantly clear that the Government’s interest in

the “well-being of its youth” justified special treatment of

indecent broadcasting. Pacifica, 438 U.S. at 749-50 (“The

ease with which children may obtain access to broadcast

material, coupled with the concerns recognized in Ginsberg,

Id. at 639 (internal quotation marks omitted).

leading to antisocial behavior.... The sum of

ence ... affords an ample basis for legislatures to con-

clude that a sensitive, key relationship of human exis-

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writing for the majority, “the prohibition against sales to

minors [did] not bar parents who so desire{d] from purchas-

ing the [material] for their children.” Jd at 639; see also

Pacifica, 488 U.S. at 749-50; id at 769-70 (Brennan, J.,

dissenting).

Today, of course, parents who wish to expose their children

to the most graphic depictions of sexual acts will have no

difficulty in doing so through the use of subscription and pay-

per-view cable channels, delayed-access viewing using VCR

equipment, and the rental or purchase of readily available

audio and video cassettes. Thus the goal of supporting

“parents’ claim to authority in their own household to direct

the rearing of their children,” id, is fully consistent with the

Government’s own interest in shielding minors from being

exposed to indecent speech by persons other than a parent.

Society “may prevent the general dissemination of such

speech to children, leaving to parents the decision as to what

speech of this kind their children shall hear and repeat.”

Pacifica, 488 U.S. at 758 (Powell, J., concurring in part and

concurring in the judgment).

The Government’s dual interests in assisting parents and

protecting minors necessarily extends beyond merely chan-

neling broadcast indecency to those hours when parents can

be at home to supervise what their children see and hear. It

is fanciful to believe that the vast majority of parents who

wish to shield their children from indecent material can

effectively do so without meaningful restrictions on the airing

of broadcast indecency.

2. Least restrictive means

The Government may

regulate the content of constitutionally protected speech

in order to promote a compelling interest if it chooses the

least restrictive means to further the articulated inter-

est.... [(BJut to withstand constitutional scrutiny, it

must do so by narrowly drawn regulations designed to

serve those interests without unnecessarily interfering

with First Amendment freedoms.

19a

1510.

Although, in ACT II, we made no mention of the fact, in its

1990 Report, the FCC defined “children” to include “children

ages 17 and under.” 5 F.C.C.R. at 5301. The agency offered

three reasons in support of its definition: Other federal

statutes designed to protect children from indecent speech

use the same standard (citing 47 U.S.C.A. § 223(b)(3) (Supp.

II 1990) (forbidding indecent telephone communications to

persons under 18)); most States have laws penalizing persons

who disseminate sexually explicit materials to children ages

17 and under; and several Supreme Court decisions have

sustained the constitutionality of statutes protecting children

ages 17 and under (citing Sable, Ginsberg, and Bethel School

District). Id.

Peete eh errr x

20a

We find these reasons persuasive and note, as the Commis-

sion did in the 1993 Report and Order promulgating regula-

tions pursuant to section 16(a), that the sponsor of that

section, Senator Byrd, made specific reference to the FCC’s

finding that “there is a reasonable risk that significant num-

bers of children ages 17 and under listen to radio and view

television at all times of the day or night.” 138 Cong. Rec.

S7308 (1992) (statement of Sen. Byrd). In light of Supreme

Court precedent and the broad national consensus that chil-

dren under the age of 18 need to be protected from exposure

to sexually explicit materials, the Commission was fully justi-

fied in concluding that the Government interest extends to

minors of all ages.

b. The midnight to 6:00 am. “safe harbor”

Although, for the reasons set forth in Part II. B. below, we

will require the Commission to allow the broadcast of inde-

cent material between 10:00 p.m. and 6:00 am., we will

address the propriety of section 16(a)’s midnight to 6:00 a.m.

safe harbor. We do so for two reasons: First, in addressing

the “narrowly tailored” issue, the parties have focused their

arguments on the evidence offered by the Commission in

support of the section’s 6:00 a.m. to midnight ban on indecent

programming. Second, the principles we bring to bear in our

analysis of the midnight to 6:00 a.m. safe harbor apply with

equal force to the more lenient one that the Commission must

adopt as a result of today’s opinion. Although fewer children

will be protected by the expanded safe harbor, that fact will

not affect its constitutionality. If the 6:00 a.m. to midnight

ban on indecent programming is permissible to protect mi-

nors who listen to the radio or view television as late as

midnight, the reduction of the ban by two hours will remain

narrowly tailored to serve this more modest goal.

{n Pacifica, the Supreme Court found that it was constitu-

tionally permissible for the Government to place restrictions

on the broadcast of indecent speech in order to protect the

well-being of our youth. 438 U.S. at 749-51. We have since

acknowledged that such restrictions may take the form of

2la

channeling provided “that the Commission ... identify some

reasonable period of time during which indecent material may

be broadcast....” ACT II, 982 F.2d at 1509. The question,

then, is what period will serve the compelling governmental

interests without unduly infringing on the adult population’s

right to see and hear indecent material. We now review the

Government’s attempt to strike that balance.

The Supreme Court has stated that “a government body

seeking to sustain a restriction on ... speech must demon-

- strate that the harms it recites are real and that its restric-

tion will in fact alleviate them to a material degree.” Eden-

field v. Fane, 113 S. Ct. 1792, 1800 (1993); see also Turner

Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445, 2470

(1994) (same). The data on broadcasting that the FCC has

collected reveal that large numbers of children view television

or listen to the radio from the early morning until late in the

evening, that those numbers decline rapidly as midnight

approaches, and that a substantial portion of the adult audi-

ence is tuned into television or radio broadcasts after mid-

night. We find this information sufficient to support the safe

harbor parameters that Congress has drawn.

The data collected by the FCC and republished in the

Congressional Record for June 1, 1992, indicate that while 4.3

million, or approximately 21 percent, of “teenagers” (defined

as children ages 12 to 17) watch broadcast television between

11:00 and 11:30 p.m., the number drops to 3.1 million (15.2

percent) between 11:30 p.m. and 1:00 a.m. and to less than 1

million (4.8 percent) between 1:45 and 2:00 a.m. 138 Cong.

Rec. S7321. Comparable national averages are not available

for children under 12, but the figures for particular major

cities are instructive. In New York, for example, 6 percent of

those aged 2 to 11 watch television between 11:00 and 11:30

p.m. on weekdays while the figures for Washington, D.C., and

‘cae Rengens S eens ene) Sane et Id. at

7322.

Concerning the morning portion of the broadcast restric-

tion, the FCC has produced studies which suggest that

significant numbers of children aged 2 through 17 watch

22a

television in the early morning hours. In the case of Seattle,

one of two medium-sized media markets surveyed, an average

of 102,200 minors watched television between the hours of

6:00 a.m. and 8:00 a.m., Monday through Friday; in Salt Lake

City, the average was 28,000 for the period from 6:00 a.m. to

10:00 a.m. 1993 Report and Order, 8 F.C.C.R. at 708.

The statistical data on radio audiences also demonstrate

that there is a reasonable risk that significant numbers of

children would be exposed to indecent radio programs if they

were broadcast in the hours immediately before midnight.

According to the FCC, there is an average quarter-hour radio

audience of 2.4 million teenagers, or 12 percent, between 6:00

a.m. and midnight. Jd Just over half that number, 1.4

million teenagers, listen to the radio during the quarter hour

between midnight and 12:15 a.m. on an average night. 1990

Report, 5 F.C.C.R. at 5302.

It is apparent, then, that of the approximately 20.2 million

teenagers and 36.3 million children under 12 in the United

States, see 1989 NOI, 4 F.C.C.R. at 8366, n.33; Nielsen

Television Index National TV Ratings February 24-

March 1, 1992 127, a significant percentage watch broadcast

television or listen to radio from as early as 6:00 a.m. to as

late as 11:30 p.m.; and in the case of teenagers, even later.

We conclude that there is a reasonable risk that large num-

bers of children would be exposed to any indecent material

broadcast between 6:00 a.m. and midnight.

Petitioners suggest that Congress should have used station-

specific and program-specific data in assessing when children

are at risk of being exposed to broadcast indecency. We

question whether this would have aided the analysis. Chil-

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

that they listen to or view programs of which their parents

disapprove. Furthermore, changes in the program menu

make yesterday's findings irrelevant today. Finally, to bor-

row the Commission’s phrase, such station- and program-

specific data do not take “children’s grazing” into account.

As the Supreme Court observed in Pacifica, “{bjecause the

23a

broadcast audience is constantly tuning in and out, prior

warnings cannot completely protect the listener or viewer

from unexpected program content.” 438 U.S. at 748. (In

Pacifica, the objectionable broadcast was heard by a child in

a car that was being driven by his father.) For this reason,

we agree with the Commission that such data would not be

“instructive.” 1993 Report and Order, 8 F.C.C.R. at 711.

The remaining question, then, is whether Congress, in

enacting section 16(a), and the Commission, in promulgating

the regulations, have taken into account the First Amend-

ment rights of the very large numbers of adults who wish to

view or listen to indecent broadcasts. We believe they have.

The data indicate that significant numbers of adults view or

listen to programs broadcast after midnight. Based on infor-

mation provided by Nielsen indicating that television sets in

23 percent of American homes are in use at 1:00 am., the

Commission calculated that between 21 and 53 million viewers

were watching television at that time. 1989 NOI, 4 F.C.C.R.

at 8362; see also id. at 8381, 8393 (in Chicago, approximately

15 percent of adults watch broadcast television at midnight,

and approximately 18 percent do so in Washington, D.C.).

Commerits submitted to the FCC by petitioners indicate that

approximately 11.7 million adults listen to the radio between

10:00 p.m. and 11:00 p.m., while 7.4 million do so between

midnight and 1:00 am. 1992 Comments at 8 n.3 (reprinted in

Joint Appendix at 348). With an estimated 181 million adult

listeners, this would indicate that approximately 6 percent of

adults listen to the radio between 10:00 p.m. and 11:00 p.m.

while 4 percent of them do so between midnight and 1:00 a.m.

Id.

While the numbers of adults watching television and listen-

ing to radio after midnight are admittedly small, they are not

insignificant. Furthermore, as we have noted above, adults

have alternative means of satisfying their interest in indecent

material at other hours in ways that pose no risk to minors.

We therefore believe that a midnight to 6:00 a.m. safe harbor

takes adequate account of adults’ First Amendment rights.

24a .

Petitioners argue, nevertheless, that delaying the safe har-

bor until midnight will have a chilling effect on the airing of

programs during the evening “prime time” hours that are of

special interest to adults. They cite, as examples, news and

documentary programs and dramas that deal with such sensi-

tive contemporary problems as sexual harassment and the

AIDS epidemic and assert that a broadcaster might choose to

refrain from presenting relevant material rather than risk the

consequences of being charged with airing broadcast indecen-

cy. Whatever chilling effects may be said to inhere in the

regulation of indecent speech, these have existed ever since

the Supreme Court first upheld the FCC’s enforcement of

section 1464 of the Radio Act. The enactment of section 16(a)

does not add to such anxieties; to the contrary, the purpose

of channeling, which we mandated in ACT J and reaffirmed in

ACT II, 852 F.2d at 1343-44; 932 F.2d at 1509, and which

Congress has now codified, is to provide a period in which

radio and television stations may let down their hair without

worrying whether they have stepped over any line other than

that which separates protected speech from obscenity. Thus,

section 16(a) has ameliorated rather than aggravated whatev-

er chilling effect may be inherent in section 1464.

Petitioners also argue that section 16(a)’s midnight to 6:00.

a.m. channeling provision is not narrowly tailored because, for

example, Congress has failed to take into consideration the

fact that it bans indecent broadcasts during school hours

when children are presumably subject to strict adult supervi-

sion, thereby depriving adults from listening to such broad-

casts during daytime hcurs when the risk of harm to minors

is slight. The Government’s concerns, of course, extend to

children who are too young to attend school. See Pacifica,

438 U.S. at 749 (“broadcasting is uniquely accessible to chil-

dren, even those too young to read”). But more to the point,

even if such fine tuning were feasible, we do not believe that

the First Amendment requires that degree of precision.

In this case, determining the parameters of a safe harbor

involves a balancing of irreconcilable interests. It is, of

course, the ultimate prerogative of the judiciary to determine

whether an act of Congress is consistent with the Constitu-

25a

tion. Nevertheless, we believe that deciding where along the

bell curves of declining adult and child audiences it is most

reasonable to permit indecent broadcasts is the kind of judg-

ment that is better left to Congress, s0 long as there is

evidence to support the legislative judgment. Extending the

safe harbor for broadcast indecency to an earlier hour in-

volves “a difference only in degree, not a less restrictive

alternative in kind.” Burson v. Freeman, 112 S. Ct. 1848,

1857 (1992) (reducing campaign-free boundary around en-

trances to polling places from 100 feet to 25 feet is a

difference in degree, not a less restrictive alternative in kind);

see also Buckley v. Valeo, 424 US. 1, 30 (1976) (if some limit

on campaign contributions is necessary, court has no scal

to probe whether $2,000 ceiling might not serve as well as

$1,000). It follows, then, that in a case of this kind, which

questions of judgment, and here, we defer to Congress's

determination of where to draw the line just as the Supreme

Court did when it accepted Congress’s judgment that $1,000

rather than some other figure was the appropriate limit to

place on campaign contributions.

Recognizing the Government's compelling interest in pro-

tecting children from indecent broadcasts, Congress chan-

neled indecent broadcasts to the hours between midnight and

6:00 a.m. in the hope of minimizing children’s exposure to

such material. Given the substantially smaller number of

children in the audience after midnight, we find that section

16(a) reduces children’s exposure to broadcast indecency to a

signi t degree. We also find that this restriction does not

unnecessarily interfere with the ability of adults to watch or

listen to such materials both because substantial numbers of

adults, it seems entirely appropriate that the marginal conve-

nience of some adults be made to yield to the imperative

needs of the young. We thus conclude that, standing alone,

26a

the midnight to 6:00 a.m. safe harbor is narrowly tailored to

serve the Government’s compelling interest in the well-being

of our youth.

B. The Public Broadcaster Exception

Section 16(a) permits public stations that sign off the air at

or before midnight to broadcast indecent material after 10:00

p.m. See 47 U.S.C. § 303 note. Petitioners argue that

section 16(a) is unconstitutional because it allows the stations

to present indecent material two hours earlier than all others.

Congress has provided no explanation for the special treat-

ment accorded these stations other than the following: “In

order to accommodate public television and radio stations that

go off the air at or before 12 midnight, the FCC’s enforce-

ment authority would extend [to] the hour of 10 o’clock p.m.

for those stations.” 138 Cong. Rec. S7308 (statement of Sen.

Byrd). The Commission has done little better. In its 1993

Report and Order, the agency explained the preference as

follows:

In balancing the interests at stake, it appears reasonable

to afford public broadcasters that do not operate during

the regular safe harbor time period at least some oppor-

tunity to air indecent material as opposed to forcing

them to extend their broadcast day beyond that which is

economically feasible. Congress carved out this excep-

tion apparently as a kind of “rough accommodation” of

its concerns for public broadcasters.

8 F.C.C.R. at 710. In its brief, the Commission justifies the

disparate treatment accorded public and commercial broad-

casters who sign off the air at midnight by suggesting that

the latter may be able to finance the extension of their

broadcasting day through the sale of advertising time. The

agency also argues that allowing these public stations to

begin broadcasting indecent material at 10:00 p.m. despite the

significantly larger number of children in the radio and

television audiences represents a reasonable trade-off because

it serves the “substantial” (as opposed to “compelling”) gov-

ernmental interest in accommodating the free speech rights

27a

of those stations. The Commission does not address the

phenomenon of “children’s grazing” that it used so effectively

in arguing against the relevance of program-specific statistics.

Because Congress has made no suggestion that minors are

less likely to be corrupted by sexually explicit material that is

broadcast by a public as opposed to a commercial station, and

because section 16(a) was adopted in reluctant response to

our rejection of the earlier statute imposing a total ban on

indecent broadcasts, we can only conclude that Congress

created the exception as a result of a misunderstanding of our

directive in ACT JJ. Our instruction that the Commission

must “afford broadcasters clear notice of reasonably deter-

mined times at which indecent material safely may be aired,”

932 F.2d at 1509 (internal quotation marks omitted), did not

require that every station be given some opportunity to

broadcast indecent material. Rather, it was our expressed

view that a clearly articulated channeling rule, as opposed to

a case-by-case approach, was necessary to enable broadcast-

ers to know when they might safely air indecent material. As

the Supreme Court has observed, in this unique medium, “[i]t

is the right of the viewers and listeners, not the right of the

broadcasters, which is paramount.” Red Lion Broadcasting

Co. v. FCC, 395 U.S. 367, 390 (1969).

Whatever Congress’s reasons for creating it, the preferen-

tial safe harbor has the effect of undermining both the

argument for prohibiting the broadcasting of indecent speech

before that hour and the constitutional viability of the more

restrictive safe harbor that appears to have been Congress’s

principal objective in enacting section 16(a). In Arkansas

Writers’ Project, Inc. v. Ragland, 481 U.S. 221 (1987), the

Supreme Court addressed a state sales tax that provided a

tax exemption for religious, professional, trade, and sports

journals, but not other magazines. The Court invalidated the

selective application of the sales tax, in part because the

articulated interest of encouraging “fledgling” publishers did

not apply to struggling magazines other than those specified.

Id. at 282. The Court found that even assuming there was a

compelling interest in protecting such publishers, a selective

exemption is not narrowly tailored to achieve that end. Id;

28a

accord Minneapolis Star & Tribune Co. v. Minnesota Com-

that exempted first $100,000 worth of ink and paper from

state use tax unconstitutionally discriminated against small

group of larger newspapers in violation of First Amendment).

Similarly, in City of Cincinnati v. Discovery Network, Inc.,

113 S. Ct. 1505 (1993), a municipal ordinance imposed a ban

on newsracks dispensing commercial publications because

they were unsightly but did not impose this ban on newsracks

dispensing newspapers. The Court struck down the regula-

tion, finding that the distinction between commercial and

noncommercial newsracks bore “no relationship whatsoever to

the particular interests that the city has asserted. It [was]

therefore an impermissible means of responding to the city’s

admittedly legitimate interests.” Jd. at 1514 (emphasis in

original).

Congress has failed to explain what, if any, relationship the

disparate treatment accorded certain public stations bears to

the compelling Government interest—or to any other legisla-

tive value—that Congress sought to advance when it enacted

section 16(a). This is not a case like Alliance for Community

Media, slip op. at 39-41, in which we allowed the FCC to

require the segregation and blocking of indecent programs on

leased-access channels while not imposing a similar restric-

tion on public access channels. There, the Commission was

able to justify the disparate treatment by carefully document-

ing the relationship between the regulation at issue and the

problem to be solved, namely, the uninvited intrusion of

indecent material into leased-access channel programming.

Here, Congress and the Commission have backed away from

the consequences of their own reasoning, leaving us with 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.

C. Our Decisions in ACT I and ACT II

Petitioners maintain that our holdings in ACT J and

ACT II preclude our finding that section 16(a) is narrowly

‘ .

| ——

ee ae

29a

tailored to achieve the Government’s compelling interest as

defined by theri. While we have addressed their principal

arguments above—and have done so in a manner that we

believe to be consistent with our holdings in those two

cases—we point to certain essential differences between this

case and those with which we dealt in ACT J and ACT II.

ACT I involved an assessment of the constitutionality of

channeling decisions that had been made by the FCC on its

own initiative; here we are dealing with an act of Congress

which, as the Supreme Court has pointed out, enjoys a

“presumption of constitutionality” that is not to be equated

with “the presumption of regularity afforded an agency in

fulfilling its statutory mandate.” Motor Vehicle Mfrs. Ass'n

v. State Farm Mut. Auto. Ins. Co., 462 U.S. 29, 43 n.9 (1983).

It is true, of course, that in ACT I] we vacated a total ban on

indecent broadcasts that Congress had attached to an appro-

priations bill. In doing so, we stated that our holding in

ACT I

necessarily means that the Commission may not ban

such broadcasts entirely. The fact that Congress itself

mandated the total ban on broadcast indecency does not

alter our view that, under ACT IJ, such a prohibition

cannot withstand constitutional scrutiny.

932 F.2d at 1509. Having declared Congress’s 24-hour ban

unconstitutional because of its totality, we remanded the case

to the Commission with instructions to redetermine,

after a full and fair hearing, the times at which indecent

material may be broadcast, to carefully review and ad-

dress the specific concerns we raised in ACT J: among

them, the appropriate definitions of “children” and “rea-

sonable risk” for channeling purposes, the paucity of

station- or program-specific audience data expressed as a

percentage of the relevant age group population, and the

scope of the government’s interest in regulating indecent

broadcasts.

Id. at 1510 (internal quotation marks and ellipsis omitted).

In doing so, we made no mention of the fact that subsequent

30a

to our decision in ACT J, the Commission had accumulated

substantial information and comments relating to the banning

of indecent broadcasts and had stated its reasons for defining

“children” to include those aged 12 to 17. ACT II, therefore,

cannot be seen as a rejection of the sufficiency of either.

While our holdings in this case are generally consistent

with those in our two earlier decisions, we acknowledge that

there are significant differences in our approach to certain of

the issues. To the degree that the analyses in those earlier

cases disagree with that contained in today’s decision, they

are, of course, superseded.

III. Conc.usion

“If there is a bedrock principle underlying the First

Amendment, it is that the government may not prohibit the

expression of an idea simply because society finds the idea

itself offensive or disagreeable.” Texas v. Johnson, 491 U.S.

397, 414 (1989). The Constitution, however, permits restric-

tions on speech where necessary in order to serve a compel-

ling public interest, provided that they are narrowly tailored.

We hold that section 16(a) serves such an interest. But

because Congress imposed different restrictions on each of

two categories of broadcasters while failing to explain how

this disparate treatment advanced its goal of protecting

young minds from the corrupting influences of indecent

speech, we must set aside the more restrictive one. Accord-

ingly, we remand this case to the Federal Communications

Commission with instructions to limit its ban on the broad-

casting of indecent programs to the period from 6:00 a.m. to

10:00 p.m.

It is so ordered.

3la

Epwarps, Chief Judge, dissenting: In this case, the majori-

ty upholds as constitutional a total ban of “indecent” speech

on broadcast television and radio between the hours of 6 a.m.

and midnight.' The majority readily acknowledges that inde-

1 At issue is the Public Telecommunications Act of 1992, Pub. L.

No. 102-356, § 16(a), 106 Stat. 949, 954 (1992) (“section 16(a)”).

Section 16(a) of Act provides:

indecent programming—

(1) between 6 a.m. and 10 p.m. on any day by any public

p radio station or public television station that goes off the air

at or before 12 midnight; and

(2) between 6 a.m. and 12 midnight on any day for any radio

or television broadcasting station not described in paragraph

(1).

The regulations required under this subsection shall be promul-

gated in accordance with section 553 of title 5, United States

Code, and shall become final not later than 180 days after the

date of enactment of this Act (Aug. 26, 1992).

47 U.S.C. § 308 note (Supp. IV 1992).

Section 16(a) was enforced by the Federal Communications Com-

mission in 1993. In the Matter of Enforcement of Prohibitions

Against Broadcast Indecency in -18 U.S.C. § 1464: Report and

Order, 8 F.C.C.R. 704, 711 (1993) (“Enforcement Order”).

Although the majority finds the 6 am. to midnight ban is

narrowly tailored to serve a compelling state interest, it holds that

section 16(a) is unconstitutional insofar as it bars the broadcasting

of indecent speech between the hours of 10 p.m. and midnight. The

majority reaches this conclusion because “Congress has failed to

explain what, if any, relationship the disparate treatment accorded

certain public stations bears to the compelling Government inter-

est—or to any legislative value—that Congress sought to advance

when it enacted section 16(a).”

The “public broadcaster exception” is an aside to the real issue in

this case. Indeed, in holding that the 6 am. to midnight ban is

constitutional, the majority appears to invite Congress to extend the

6 am. to midnight ban to all broadcasters, without exception.

Therefore, in my view, the majority's treatment of this issue in no

way deflects from its principal holding that “the midnight to 6:00

32a

cent speech (as distinguished from obscene speech) is fully

protected by the Constitution, and that the Government may

not regulate such speech based on its content except when it —

chooses the least restrictive means to effectively promote an

articulated compelling interest. In this case, the Government

fails to satisfy the acknowledged constitutional strictures.

The Government advances three goals in support of the

statute: first, it claims that the statute facilitates parental

supervision of the programming their children watch and

hear; second, it claims that the ban promotes the well-being

of minors by protecting them from indecent programming

assumed to be harmful; and, finally, it contends that the ban

preserves the privacy of the home. Enforcement Order, 8

F.C.C.R. at 705-06. The majority finds the first two inter-

ests compelling, and so finds it unnecessary to address the

third. I, too, will focus on the first two interests, which I find

to be unsupported.

As an initial matter, I do not comprehend how the two

interests can stand together. “Congress may properly pass a

law to facilitate parental supervision of their children, ie., a

law that simply segregates and blocks indecent programming

and thereby helps parents control whether and to what extent

their children are exposed to such programming. However, a

law that effectively bans all indecent programming—as does

the statute at issue in this case—does not facilitate parental

supervision. In my view, my right as a parent has been

preempted, not facilitated, if I am told that certain program-

ming will be banned from my ... television.” Congress

cannot take away my right to decide what my children watch,

absent some showing that my children are in fact at risk of

harm from exposure to indecent programming.” Alliance for

Community Media v. FCC, Nos. 93-1169, et al, slip op. at 1

(D.C. Cir. June 6, 1995) (Edwards, C.J., dissenting).

Furthermore, the two interests—facilitating parental su-

pervision and protecting children from indecent material—

a.m. safe harbor is narrowly tailored to serve the Government’s

compelling interest in the well-being of our youth.” Ii is this

holding that will be the focus of this dissent.

33a

better if considered alone. With respect to the

interest in protecting children, although the majority

ceded by Government counsel at oral argument in this case,

2 See, eg. ALBERT Banpura, AccREssion: A SociaL LEARNING

AnaLysis 72-76 (1973); Wittiam A. BEeLson, TELEVISION VIOLENCE

AND THE ADOLESCENT Boy (1978); Georce Comstock, THE EVOLUTION

or AMERICAN TELEVISION 159-238 (1989); Monroe M. LEFKOWITZ ET

aL, Growinc Up To Be VioLent: A LONGITUDINAL StuDY OF THE

DEVELOPMENT oF AcGREssION (1977); L. Rowell Huesmann et al.,

The Effects of Television Violence on Aggression: A Reply to a

Skeptic, in PsycnoLocy anp Sociat Poticy 191 (Peter Suedfeld &

Philip E. Tetlock eds., 1992); David Pearl, Familial, Peer, and

Television Influences on Aggressive and Violent Behavior, in

CHILDHOOD AGGRESSION AND VIOLENCE: SouRCES OF INFLUENCE, PRE-

VENTION, AND CONTROL 231, 236-37 (David H. Crowell et al. eds.,

1987).

3 Alliance for Community Media involved the Cable Television

Consumer Protection and Competition Act of 1992, Pub. L. No.

102-385, § 10, 106 Stat. 1460, 1468 (1992) and In the Matter of

Implementation of Section 10 of the Cable Consumer Protection

- Competition Act of 1992, 8 F.C.C.R. 2638 (1993), which includ-

a segregate-and-block scheme.

34a

Because the statutory ban imposed by section 16(a) is not

the least restrictive means to further compelling state inter-

ests, the majority decision must rest primarily on a perceived

distinction between the First Amendment rights of broadcast

media and cable (and all other non-broadcast) media. The

majority appears to recognize that section 16(a) could not

withstand constitutional scrutiny if applied against cable tele-

vision operators; nonetheless, the majority finds this irrele-

vant because it believes that “there can be no doubt that the

traditional broadcast media are properly subject to more

regulation than is generally permissible under the First

Amendment.” This is the heart of the case, plain and simple.

Respectfully, I find the majority’s position flawed. First,

because I believe it is no longer responsible for courts to

provide lesser First Amendment protection to broadcasting

based on its alleged “unique attributes,” I would scrutinize

section 16(a) in the same manner that courts scrutinize

speech restrictions of cable media.

Second, I find it incomprehensible that the majority can so

easily reject the “public broadcaster exception” to section -

16(a), see note 1 supra, and yet be blind to the utterly

irrational distinction that Congress has created between

broadcast and cable operators. No one disputes that cable

exhibits more and worse indecency than does broadcast. And

cable television is certainly pervasive in our country. Today,

a majority of television households have cable,‘ and over the

last two decades, the percentage of television households with

4 Approximately 59 million households have cable television. Re-

SEARCH & Po.icy ANALYsIS DEPARTMENT, NATIONAL CABLE TELEVISION

ASSOCIATION, CABLE TELEVISION DEVELOPMENTS: INDUSTRY OVERVIEW,

Fall 1994, at 1-A (citing A.C. Nielsen Co. & Paul Kagan Associates,

Inc., Marketing New Media, June 20, 1994); see also Alliance for

Community Media, Nos. 93-1169, et al, slip op. at 33-34 (citing

H.R. Conr. Rep. No. 862, 102d Cong., 2d Sess. 56 (1992) (noting that

more than sixty percent of all households with television, subscribe

to cable)); id. (citing S. Rep. No. 92, 102d Cong., 2d Sess. 3 (1991)

(noting that “(cJable television has become our Nation’s dominant

video distribution medium”)).

35a

cable has increased every year.’ However, the Government

does not even attempt to regulate cable with the same heavy

regulatory hand it annlies to the broadcast media. There is

no ban between 6 ..m. and midnight imposed on cable.

Rather, the Government relies on viewer subscription and

individual discretion instead of regulating commercial cable.

Viewers may receive commercial cable, with all of its indecent

material, to be seen by adults and children at any time,

subject only to the viewing discretion of the cable subscriber.

“Furthermore, many subscribers purchase cable service to

get improved [broadcast] television reception, and a number

of basic cable subscriptions are packaged to include channels

that offer some indecent programming; so these subscribers

will get indecent programming whether they want it or not.”

Id., slip op. at 7 (Edwards, C.J., dissenting). In other words,

the Government assumes that this scheme, which relies on

personal subscription and individual discretion, fosters paren-

tal choice and protects children without unduly infringing on

the free speech rights of cable operators and the adult

audience.

If exposure to “indecency” really is harmful to children,

then one wonders how to explain congressional schemes that

impose iron-clad bans of indecency on broadcasters, while

simultaneously allowing a virtual free hand for the real

culprits—cable operators. And the greatest irony of all is

that the majority holds that section 16(a) is constitutional in

part because, in allowing parents to subscribe to cable televi-

sion as they see fit, Congress has facilitated parental supervi-

sion of children. In other words, Congress may ban indecen-

cy on broadcast television because parents can easily pur-

chase all the smut they please on cable! I find this rationale

perplexing.

At bottom, I dissent for three reasons: First, the Govern-

ment’s asserted interests in facilitating parental supervision

5 In 1975, the percentage of television households with cable was

18%; in 1985, the percentage was 45%; and in 1994, estimations

suggest between 62% and 63% of television households have cable.

NaTIONAL CABLE TELEVISION ASSOCIATION, at 1-A, 2~A.

36a

and protecting children from indecency are irreconcilably in

conflict in this case. Second, the Commission offers no

evidence that indecent broadcasting harms children. And

although it is an easy assumption to make—that indecent

broadcasting is harmful to minors—Supreme Court doctrine

suggests that the Government must provide some evidence of

harm before enacting speech-restrictive regulations. Finally,

the Government has made no attempt to search out the least

speech-restrictive means to promote the interests that have

been asserted. For these reasons, section 16(a) should be

struck down as unconstitutional.

I. First AMENDMENT PRorections For THE Broapcast Mepi

Over the years, Congress and the Commission have regu-

lated the broadcast media more heavily than they have regu-

lated the non-broadcast media. And courts have upheld

speech-restrictive regulations imposed on broadcast which

undoubtedly would have been struck down were they imposed

on other media. See, e.g., Turner Broadcasting Sys., Inc. v.

FCC, 114 S. Ct. 2445, 2456 (1994) (“7'BS”) (“It is true that

our cases have permitted more intrusive regulation of broad-

cast speakers than of speakers in other media.”)*; FCC v.

League of Women Voters of California, 468 U.S. 364, 376

(1984) (“Were a similar ban ... applied to newspapers and

magazines, we would not hesitate to strike it down as violative

of the First Amendment.”). The Supreme Court has ex-

plained its tendency to uphold speech-restrictive regulations

of broadcast as providing the broadcast media with limited

First Amendment protection. See, eg, FCC v. Pacifica

Found, 438 U.S. 726, 748 (1978) (plurality opinion) (“{O)f all

forms of communication, it is broadcasting that has received

the most limited First Amendment protection.”).

* “Compare Red Lion Broadcasting Co. v. FCC, 395 U.S. 367

(1969) (television), and National Broadcasting Co. v. United States,

319 U.S. 190 (1943) (radio), with Miami Herald Publishing Co. v.

Tornillo, 418 U.S. 241 (1974) (print), and Riley v. National Fed'n of

Blind of N.C., Inc. 487 U.S. 781 (1988) (personal solicitation).”

TBS, 114 8. Ct. at 2456 (parallel citations omitted).

37a

The absurdity of this bifurcated approach—applying a re-

laxed level of scrutiny to content-based regulations of broad-

and a strict level of scrutiny for content-based regula-

apparent in a compari-

son of the Supreme Court’s analysis of broadcast and cable.

In Pacifica, a plurality of the Court applied a reduced level of

the First Amendment rights of a

;

}

‘|

38a

The justification for the Supreme Court’s distinct First

was physically limited—there were more would-be broadcast-

ers than frequencies available and broadcasters wishing to

broadcast on the same frequency may have interfered with

each other—and required regulation to assign frequencies to

broadcasters. See TBS, 114 S. Ct. at 2456. The Court

reasoned that the Government could impose limited content

restraints and certain affirmative obligations on broadcasters

on account of spectrum scarcity. See id. at 2457 (citing Red

Lion, 395 U.S. at 390). In 1978, the Court provided two

additional rationales—broadcast was uniquely intrusive into

the privacy of the home and uniquely accessible to children—

which justified relaxed scrutiny and thereby reduced the

First Amendment protection accorded to broadcasters. See

Pacifica, 438 U.S. at 748-49. These justifications—spectrum

scarcity, intrusiveness, and accessibility to children—neither

distinguish broadcast from cable, nor explain the relaxed

application of the principles of the First Amendment to

broadcast.

A. Spectrum Scarcity

In 1943, the Court determined that the “unique characteris-

tic” of broadcast—that “[uJnlike other modes of expression,

radio inherently is not available to all”—explained “why,

unlike other modes of expression, it is subject to governmen-

tal regulation.” National Broadcasting Co., Inc. v. United

States, 319 U.S. 190, 226 (1943) (“NBC”). Twenty-six years

later, the Court spun out the First Amendment implications

of this burgeoning scarcity theory. Red Lion, 395 US. at

388-90. The Court first offered an economic scarcity theory,®

differences between the two media do not justify different levels of |

First Amendment protection.

8 Interestingly, in responding to Government’s argument that

cable and broadcast are alike in that they both are beset by

“market dysfunction,” the TBS Court stated that “the special

physical characteristics of broadcast transmission, not the economic

characteristics of the broadcast market, are what underlies our

iia

SS i me kh owe nN Sy Vm

39a

finding that “{wJhere there are substantially more individuals

who want to broadcast than there are frequencies to allocate,

it is idle to posit an unabridgeable First Amendment right to

broadcast comparable to the right of every individual to

Although the Supreme Court has not declared the distinc-

tion between broadcast and other media a dead one, it has not

lately given the distinction an enthusiastic endorsement. In

fact, in recent years the Court has only grudgingly upheld the

broadcast jurisprudence.” 114 S. Ct. at 2457 (citations omitted).

Apparently, the Court is now prepared to abandon the economic

searcity theory.

11 See also TBS, 114 S. Ct. 2457 (noting that spectrum scarcity

“has been thought to require some adjustment in traditional First

permit the Government to place limited

content restraints, and impose certain affirmative obligations, on

tioned out among applicants.’” (quoting Columbia Broadcasting

Sys., Inc. v. Democratic Nat’! Comm., 412 U.S. 94, 101 (1973))).

40a

distinction. See, eg., TBS, 114 S. Ct. at 2456-57. On a few

occasions, the Supreme Court has acknowledged the mount-

ing criticism against its scarcity rationale. See id at 2457

(noting, that “courts and commentators have criticized the

scarci er hy Ber gr ee ah Soingea

Voters, 468 U.S. at 376-77 n.11." Nevertheless, to date, the

Court has declined to revisit the validity of the scarcity

rationale. See TBS, 114 S. Ct. at 2457 (“[W]e have declined

to question its continuing validity as support for our broad-

cast jurisprudence ... and see no reason to do so here.”);

League of Women Voters, 468 U.S. at 377 n.11 (“We are not

prepared, however, to reconsider our

longstanding approach

without some signal from Congress or the FCC that techno-

logical developments have advanced so far that some revision

of the system of broadcast regulation may be required.”)."

12 In TBS, 114 S. Ct. at 2457 n.5, the Court cited some of those

courts and commentators: Telecommunications Research & Action

Ctr. v. FCC, 801 F.2d 501, 508-09 (D.C. Cir. 1986), cert. denied, 482

U.S. 919 (1987); Lee Bo.iincer, Imaces or A Free Press 87-90

(1991); Lucas Powe, AMERICAN BROADCASTING AND THE First AMEND-

MENT 197-209 (1987); Matruew Sprrzer, Seven Dirty Worps ano Six

Orner Stories 7-18 (1986); R.H. Coase, The Federal Communica-

tions Commission, 2 J.L. & Econ. 1, 12-27 (1959); Laurence H.

Winer, The Signal Cable Sends—Part I: Why Can't Cable Be More

Like Broadcasting?, 46 Mp. L. Rev. 212, 218-40 (1987); Note, The

Message in the Medium: The First Amendment on the Informa-

tion Superhighway, 107 Harv. L. Rev. 1062, 1072-74 (1994).

13 The League of Women Voters Court noted that “[tJhe prevail-

pata me oe ee mee

4la

In my view, it is no longer responsible for courts to apply a

reduced level of First Amendment protection for regulations

imposed on broadcast based on an indefensible notion of

_ spectrum scarcity. It is time to revisit this rationale.

For years, scholars have argued that the scarcity of the

broadcast spectrum is neither an accurate technological de-

scription of the spectrum, nor a “unique characteristic” that

should make any difference in terms of First Amendment

protection. First, in response to the problem of broadcast

interference when multiple broadcasters attempt to transmit

on the same frequency, critics point out that this problem

does not distinguish broadcasting from print * and is easily

remedied with a system of administrative licensing or private

rights.7 Another problem alluded to by the Court

in Red Lion is the claim that the spectrum is inherently

limited, in contrast to cable stations or newsprint. Today,

however, the nation enjoys a proliferation of broadcast sta-

tions,”® and should the country decide to increase the number

electronic press. Therefore, in response to the question raised by

the Supreme Court in League of Women Voters, we believe that the

standard applied in Red Lion should be reconsidered and that the

constitutional principles applicable to the printed press should be

equally applicable to the electronic press.” Jn re Complaint of

Syracuse Peace Council against Television Station WTVH Syra-

cuse, New York, 2 F.C.C.R. 5043, 5053 (1987); see also Matthew L.

Spitzer, The Constitutionality of Licensing Broadcasters, 64

N.Y.U.L. Rev. 990, 1011 (1989).

16 For a particularly thorough rejection of various scarcity argu-

ments, see Spitzer, supra, at 1013-20, and notes 12-14 supra.

16 See Spitzer, supra, at 1013-15.

17 Coase demonstrated that one can efficiently distribute rights

to scarce resources through a market system. See Coase, supra, at

18 This court has found that “[bJroadcast frequencies are much

less scarce now than when the scarcity rationale first arose in

National Broadcasting Co. ... and it appears that currently ‘the

number of broadcast stations ... rivals and perhaps surpasses tue

number of newspapers and magazines in which political messages

42a

of channels, it need only devote more resources toward the

development of the electromagnetic spectrum.”®

In response to the economic scarcity argument—that there

are more would-be broadcasters than spectrum frequencies

available—economists argue that all resources are scarce in

the sense that people often would like to use more than

exists.” Especially when the Government gives away a

valuable commodity, such as the right to use certain airwaves

free of charge, the demand will likely always exceed the

may effectively be carried.” Telecommunications Research &

Action Ctr., 801 F.2d at 508-09 n.4 (quoting Loveday v. FCC, 707

F.2d 1448, 1459 (D.C. Cir.), cert. denied, 464 U.S. 1008 (1983)).

This court went on to note, “[iJndeed, many markets have a far

greater number of broadcasting stations than newspapers.” Id;

see also Cass R. SuNnsTEIN, DEMOCRACY AND THE PROBLEM OF FREE

SPEECH 54 (1993) (noting that most cities have far more television

and radio stations than major newspapers).

19 See Spitzer, supra, at 1015; cf Fowler & Brenner, supra, at

222-23 (suggesting that additional channels can be added without

increasing portion reserved for broadcast by decreasing bandwidth

of each channel and claiming that advertising dollars restrict broad-

cast opportunities more than number of channels).

2 Judge Bork’s opinion Telecommunications Research & Action

Ctr. sums up this point:

It is certainly true that broadcast frequencies are scarce but it

is unclear why that fact justifies content regulation of broad-

casting in a way that would be intolerable if applied to the

editorial process of the print media. All economic goods are

scarce, not least the newsprint, ink, delivery trucks, computers,

and other resources that go into the production and dissemina-

tion of print journalism. Not everyone who wishes to publish a

newspaper, or even a pamphlet, may do so. Since scarcity is a

universal fact, it can hardly explain regulation in one context

and not another. The attempt to use a universal fact as a

SOE ee ee

801 F.2d at 508 (footnotes omitted).

43a

supply." And with the development of cable, spectrum-based

communications media now have an abundance of alterna-

tives, essentially rendering the economic scarcity argument

superfluous.

In short, neither technological nor economic scarcity distin-

guish broadcast from other media. And while some may

argue that spectrum scarcity may justify a system of adminis-

trative regulation as opposed to a free market approach to

stations, the theory does not justify reduced First Amend-

ment protection.

B. Accessibility to Children and Pervasiveness

The two additional rationales offered by the plurality opin-

ion in Pacifica, attempting to distinguish broadcasting from

other media, also fail to justify limited First Amendment

protection of broadcast. The plurality found that “broadcast-

ing is uniquely accessible to children, even those too young to

read.” Pacifica, 438 U.S. at 749.4 This characteristic, how-

ever, fails to distinguish broadcast from cable; and, notably,

the rationale is absent from the Court’s TBS opinion.

The plurality in Pacifica added another rationale which

really has two components. The opinion reasoned that “the

21 Spitzer suggests that if one were to give paper away for free,

the demand would certainly exceed the supply. See Spitzer, supra,

at 1016.

2 Coase presents a compelling argument for a free market

system, in which we would treat broadcast rights as private proper-

ty to avoid the chaos of the 1920s: after an initial allocation,

ownership: and use could be governed by the free market. See

Coase, supra, at 12-27.

23 In Joseph Burstyn, the Court faced a similar argument, “that

motion pictures possess a greater capacity for evil, particularly

among the youth of a community, than other modes of expression.”

343 U.S. at 502. The Court responded that, “elven if one were to

accept this hypothesis, it does not follow that motion pictures should

be disqualified from First Amendment protection. If there be

capacity for evil it may be relevant in determining the permissible

scope of community control, but it does not authorize substantially

unbridled censorship such as we have here.” /d.

(HIE

F i

Bere.

iiainiet

i ts

last two decades. See NaTionaL CaBLeE TELEVISION AssociA-

It is relevant that Pacifica was a plurality opinion which

provided a very limited holding. See 438 U.S. at 750 (“It is

appropriate ... to emphasize the narrowness of our hold-

ing.... The Commission’s decision rested entirely on a

nuisance rationale under which context is all-important.”).

ing was “emphatically narrow,” Sable Communications of

Cal, Inc. v. FCC, 492 U.S. 115, 127 (1989), essentially con-

firming that Pacifica never was seen to be a seminal state-

ment of constitutional law. But beyond the narrowness of the

Court’s decision, it seems clear now that Pacifica is a flawed

decision, at least when one considers it in light of enlightened

* The plurality opinion added:

Because the broadcast audience is constantly tuning in and out,

prior warnings cannot completely protect the listener or viewer

from unexpected program content. To say that one may avoid

further offense by turning off the radio when he hears indecent

language is like saying that the remedy for an assault is to run

away after the first blow.

Pacifica, 438 U.S. at 748-49. This elaboration on the intrusiveness

rationale, of course, does not distinguish broadcast from cable.

45a

economic theory, technological advancements, and subsequent

case law. The critical underpinnings of the decision are no

longer present. Thus, there is no reason to uphold a distinc-

tion between broadcast and cable media pursuant to a bifur-

cated First Amendment analysis.”

Il. Fut, First AMENDMENT Protection oF Broapcast

Because no reasonable basis can be found to distinguish

broadcast from cable in terms of the First Amendment

protection the two media should receive, I would review

applied “to regulations that suppress, disadvantage, or impose

differential burdens upon speech because of its content.”

TBS, 114 S. Ct. at_2459.% In Sable, the Court indicated that

the “exacting scrutiny” test has two prongs: the Govern-

ment’s interests must be “compelling,” and the method of

regulation chosen must be “the least restrictive means” to

achieve those compelling interests. 492 U.S. at 126. That is

the essence of the test, I think.

25 Zechariah Chafee provides a historical view of the Court's

wavering toleration of speech-restrictive regulations on different

media:

Newspapers, books, pamphlets, and large meetings were for

many centuries the only means of public discussion, so that the

need for their protection has long been generally realized. On

the other hand, when additional methods for spreading facts

and ideas were introduced or greatly improved by modern

inventions, writers and judges had not got into the habit of

being solicitous about guarding their freedom. And so we have

tolerated censorship of the mails, the importation of foreign

books, the stage, the motion picture, and the radio.

ZECHARIAH CHAFEE, FREE SPEECH IN THE Unrrep States 381 (1942).

26 The Justices voted 8-1 on this issue, although a majority of the

Court found that the regulations were content neutral and applied

intermediate scrutiny on this basis. See TBS, 114 S. Ct. at 2469.

46a

In this case, the majority views the broadcast media as

disfavored in the application of First Amendment rights,

relying principally on Pacifica; however, my colleagues none-

theless agree that section 16(a) reflects a content-based regu-

lation that is subject to exacting scrutiny. Indeed, even the

FCC viewed the case in this way. In my view, there is no

way that section 16(a) can survive exacting scrutiny.

A. Content-Based Regulations

In explaining the reasons for applying heightened or exact-

ing scrutiny, the Supreme Court recently stated:

At the heart of the First Amendment lies the principle

that each person should decide for him or herself the

ideas and beliefs deserving of expression, consideration,

and adherence.

TBS, 114 S. Ct. at 2458. This fundamental principle means

that “the First Amendment ... does not countenance govern-

mental control over the content of messages expressed by

private individuals.” Jd® Because section 16(a) and the

Enforcement Order ban indecent expression,” they constitute

content-based regulations, which have traditionally raised the

red flag of exacting scrutiny. As the Court stated in Sable,

“(t]he Government may, however, regulate the content of

constitutionally protected speech in order to promote a com-

pelling interest if it chooses the least restrictive means to

further the articulated interest.” 492 U.S. at 126. At issue

in this case is whether the Government’s interests are indeed

compelling and whether it has. chosen the least restrictive

means to further its asserted compelling interests.

27 An earlier Court phrased this notion as: “above all else, the

First Amendment means that government has no power to restrict

expression because of its message, its ideas, its subject matter, or

its content.” Police Dep't of Chicugo v. Mosley, 408 U.S. 92, 95

(1972).

% Section 16(a) applies to “language or material that, in context,

depicts or describes, in terms patently offensive as measured by

contemporary community standards for the broadcast medium,

sexual or excretory activities or organs.” Enforcement Order, 8

F.C.C.R.- at 705 n.10.

47a

ing audience. The Supreme Court finds laws insufficiently

tailored when they deny adults their free speech rights by

allowing them to read, watch, or hear only what was accept-

able for children. See, e.g., Butler v. Michigan, 352 U.S. 380,

383 (1957); Sable, 492 U.S. at 127 (finding that “this case, like

Butler, presents [the Court] with ‘legislation not reasonably

restricted to the evil with which it is said to deal’”) (quoting

Butler, 352 U.S. at 383).

When First Amendment rights are at stake, appellate

courts cannot defer to a legislative finding, but must make an

independent inquiry to assess whether the record supports

the Government’s interests. Sable, 492 U.S. at 129; Land-

mark Communications, Inc. v. Virginia, 435 U.S. 829, 843

(1978) (assessing legislative finding or “declaration” that clear

and present danger existed). The Court has found this

“particularly true where the Legislature has concluded that

its product does not violate the First Amendment.” Sable,

492 US. at 129.

B. Compelling Interests

The FCC claims that section 16(a) serves three compelling

governmental interests. The ban is meant, first, to support

parental supervision of children; second, to promote the well-

being of minors; and third, to preserve the privacy of the

home. Enforcement Order, 8 F.C.C.R. at 705-06. Only the

first two interests are at issue.

With respect to the interest in facilitating parental supervi-

sion, the Supreme Court has stated that the law has “consis-

tently recognized that the parents’ claim to authority in their

own household to direct the rearing of their children is basic

in the structure of our society.” Ginsberg v. New York, 390

U.S. 629, 639 (1968). It is entirely reasonable for “(t]he

legislature [to] properly conclude that parents and others ...

48a

who have this primary responsibility for children’s well-being

are entitled to the support of laws designed to aid discharge

of that responsibility.” Jd Similarly, with respect to the

Commission’s second interest, protecting the well-being of its

youth, the Court on numerous occasions has found “a compel-

ling interest in protecting the physical and psychological well-

being of minors.” Sable, 492 U.S. at 126; see also Pacifica,

438 U.S. at 749; Ginsberg, 390 U.S. at 640. But to note that

these interests are compelling in the abstract is not to

scrutinize the Government’s assertions as applied to this case.

As I discussed in the panel decision, Action for Children’s

Television v. FCC, 11 F.8d 170, 183-86 (D.C. Cir. 1993)

(Edwards, J., concurring), one of the most significant prob-

lems with the Government’s defense of its regulations is that

its first two asserted interests, at least as the FCC appears to

define their scope here, are irreconcilably in conflict. The

Commission cannot simultaneously seek to faci

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