# Petition for Writ of Certiorari — Pacifica Foundation v. Federal Communications Commission > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2290%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 516 U.S. 1043 ## Text ’ 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 i 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? er ii 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. iv 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 Vv 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 20 vi 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 ix 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 x 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. 2 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 3 air at or before 12 midnight shall broadcast on any day between 6 am. and 10 p.m. any material which is indecent. (c) No licensee of a radio or television 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, 4 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. 5 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 6 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 7 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 9 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 10 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. il 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 ——————<—<—— 12 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. 13 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). 4 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 v 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). 15 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 16 "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 17 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 19 136, 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. 20 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 wy 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. 2! 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)). 22 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. 23 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))). 24 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 25 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. 26 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 27 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. 1s 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. 28 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., 29 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 30 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 la 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. 2a 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. 3a 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. 4a 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 Sa 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 6a 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 7a 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 8a 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 9a 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- 17a PgR) EBA! aula aan: Hf: ie 2 anil Hip le | RUHL HE ull sal! HEHE Weeds: yD Hit neirey i calves iF: ue ailacel hai] + tate a hie 3 He + E% 17 ity: THIER TTT eer 18a 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- missioner of Revenue, 460 U.S. 575, 591-92 (1983) (state tax © 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 st [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_2290%3A1. Public record. Not legal advice.