No.
06-3575
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
CBS CORPORATION, CBS BROADCASTING INC.,
CBS TELEVISION STATIONS INC., CBS STATIONS GROUP OF
TEXAS L.P., and KUTV HOLDINGS, INC.,
Petitioners,
v.
FEDERA COMMUNICATIONS COMMISSION and
UNITED STATES OF AMERICA,
Respondents.
On Petition for Review of
an Order of
the Federal Communications Commssion
BRIEF OF FORMR FCC OFFICIAS AS AMICI CURAE IN
SUPPORT OF PETITIONERS AN IN SUPPORT OF A
DECLARTION THAT INDECENCY ENFORCEMENT
VIOLATES THE FIRST AMENDMENT
Nancy Winkelman
David Smith
Schnader Harson Segal & Lewis LLP
1600 Market Street, Suite 3600
Philadelphia, P A 19103
(215) 751-2000
Counsel of Record
Henr Geller
3001 Veazey Terrace, NW, Apt. 702
Washington, D.C. 20008
Glen O. Robinson
University of Virginia School of Law
580 Massie Rd.
Charlottesville, VA 22903
(434) 924-3621
November 29,2006
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................................................................................... ii
INTEREST OF AMICI AND AUTHORITY TO FILE .......................................... 1
SUMMAY OF ARGUMENT ................................................................................2
ARGUMENT............................................................................................................ 3
i. THE EVOLVING STANDARS OF INECENCY REGULATION ............ 3
II. SUPER BOWL XXIII................................................................................ 11
III. THE POLITICS OF REGULATION ........................................................... 16
IV. TlI COURT'S OPTIONS.. ............................................................................ 19
CONCLUSION....................................................................................................... 23
1
TABLE OF AUTHORITIES
Cases
Actionfor Children's Television v. FCC, 852 F.2d 1332 (D.C. Cir. 1988) ...............7
Actionfor Children's Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991) ...............7
Actionfor Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) ...................7
Actionfor Children's Television v. FCC, 59 F.3d 1249 (D.C. Cir. 1995) .................7
Ashcroft v. ACLU, 542 U.S. 656 (2004).................................................4, 21, 22, 23
Austin v. United States, 509 U.S. 602 (1993)........................................................13
Bowsher v. Synar, 478 U.S. 714 (1986) ............................ ........... ............................18
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)...................................................12
Miller v. California, 413 U.S. 15 (1973).........................................................3,4,22
Monroe Communications Corp. v. FCC, 900 F.2d 351 (D.C. Cir. 1990) ..................8
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)...........................................13
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). .............................14
Reno v. ACLU, 521 U.S. 844 (1997) .......................................................5, 19,20,22
Roth v. United States, 354 U.S. 476 (1957) ........................................................4, 22
Sable Communications of
California, Inc. v. FCC, 492 U.S. 115 (1989)............5, 19
Staples v. United States, 511 U.S. 600 (1994).........................................................12
u.s. v. ExCitement Video, Inc., 513 U.S. 464 (1994).............................................12
United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000)...4,22,23
Statutes and Legislative History
18 U. S. C. § 1464.............................................................................................. passim
47 U. S. C. § 223 ...................................................................................................... ..20
47 U. S. C. § 231 ....................................................................................................... .21
47 U.S.C. § 503 ............................................................................................12, 13, 17
Broadcast Decency Enforcement Act, Pub. L. 109-235, § 2, 120 Stat. 491.............17
11
H.R. Res. 500, 108th Congo (2004) .........................................................................17
S. Res. 283, 108th Congo (2003) ..............................................................................17
Administrative Decisions
Annual Assessment of the Status of Competition in the Market for
Delivery of
Video Programming, 21 FCC Rcd. 2503 (2006) ...............................23
Clear Channel Broadcasting Licensees, Inc., 19 FCC Rcd. 6773 (2004)...........8, 10
Complaint Against Various Broadcast Licensees Regarding Their Airing
the UPN Network Program "Buff the Vampire Slayer, " 19 FCC
Rcd. 15995 (2004) .............................................................................................. ..14
of
Complaints Against Various Broadcast Licensees Regarding Their Airing
the "Golden Globe Awards" Program, 19 FCC Rcd. 4975 (2004) .............9, 10
of
Complaints Against Various Television Licensees Concerning Their
the Program "Without a Trace,"
December 31, 2004 Broadcast of
21 FCC Rcd. 2732 (2006) .....................................................................................11
Complaints Against Various Television Licensees Concerning Their
February 1, 2004 Broadcast of
the Super Bowl XXIII Halfime Show,
21 FCC Rcd. 2760 (2006)........................................................................... passim
Complaints Regarding Various Broadcasts Between February 2,2002
and March 8, 2002, FCC 06-166 (reI. Nov. 6,2006) ...........................................11
Complaints Regarding Various Television Broadcasts Between February
2, 2002 and March 8, 2005,21 FCC Rcd. 2664 (2006) ...........................10, 11,25
Harriscope of
Chicago, 3 FCC Rcd. 757 (1988)......................................................8
Industr Guidance on the Commission's Case Law Interpreting 18 U.S. C.
§ 1464 and Enforcement Policies Regarding Broadcast Indecency,
16 FCC Rcd. 7999 (2001)................................................................................. ..8, 9
Infnity Broadcasting Operations Inc., 18 FCC Rcd. 6915 (2003) ..........................10
Pacifca Foundation Station WBAI(FM), New York, N.Y., 56 F.C.C.2d 94
(1975) ............................................................................................................ passim
Petition for Reconsideration of a Citizen's Complaint Against Pacifca
Foundation Station WBAI (FM), New York, N. Y., 59 F.C.C.2d 892
(1976) ...................................................................................................................... 5
111
The Broadcast Decency Enforcement Act of 2004: Hearings on H.R.
3717 Before the Subcommittee on Telecommunications and the Internet
of the House Committee on Energy and Commerce, 108th Congo
(2004) ........................................................................................................... .4, 9, 25
WGBH Educ. Found., 69 F.C.C.2d 1250 (1978).......................................................6
Other Authorities
Federal Communications Commssion, The Public and Broadcasting,
1999 WL 391297 (June 1999) ............................ ............. ....................................1 0
Frederick Schauer, Categories and the First Amendment: A Play in Thee
Acts, 34 Vand. L. Rev. 265 (1981) .................................. ......................................6
Kimberly Zarkin, Anti-Indecency Groups and the Federal
Communications Commission: A Study in the Politics of Broadcast
Regulation (2003) ................................................................................................ .17
Laurence Tribe, American Constitutional Law (1st ed. Supp. 1979) .........................6
iv
INTEREST OF AMCI AND AUTHORITY TO FILE
Amici are former officials of the FCC who oppose the recent indecency
enforcement actions of the Commssion. Henr Geller, curently retired, served as
General Counsel of the FCC from 1964 to 1970, and as special assistant to the
Chairman in 1970. After leaving the FCC Geller was Admnistrator of the National
Telecommunications and Information Admnistration from 1978 to 1981. Glen
Law
Robinson, curently the David A. and Mar Harson Distinguished Professor of
at the University of
Virginia, served as Commssioner from 1974 to 1976, and later
was U.S. Ambassador to the World Admnistrative Radio Conference from 1978 to
1979. As former officials of the FCC, Amici have been personally associated with the
indecency controversy in the past, and we are not without sympathy for the FCC's
I) However,
concerns. (One of
us paricipated in the FCC's 1975 Pacifca decision.
we have been dismayed by a series of recent decisions that have transformed a hitherto
restrained policy of policing only the most extreme cases of indecent broadcast
programmng into a censorship crusade that wil put a chill on all but the blandest of
pursuant to Rule 29, Fed. R. App.
program fare. Amici have authority to file this brief
P., the paries having granted their consent.
i Pacifca Found. Station WBAI(FM), New York, NY., 56 F.C.C.2d 94 (1975).
1
SUMRY OF ARGUMNT
The FCC's policy towards broadcast indecency has evolved from a restrained
effort to regulate clear, flagrant instances of indecent language by a handful of
broadcast licensees and broadcast performers into an ever-expandig campaign against
ordinar radio and television programmng. In pursuit of an otherwise laudable policy
of protecting children against exposure to extremely offensive language the
Commssion has embarked on an enforcement program that has all the eararks of a
Victorian crusade. To effectuate its new clean-up-the-airaves policy the Commssion
has radically expanded the definition of indecency beyond its original conception,
magnified the penalties for even minor, ephemeral images or objectionable language,
and targeted respected television programs, movies, even non-commercial
documentaries.
The case under review, Complaints Against Various Television Licensees
the Super Bowl XXIII Halfime
Concerning Their February 1, 2004 Broadcast of
Show, 21 FCC Rcd. 2760 (2006) ("Super Bowl Decision"), is but one of many
examples of the Commssion's new campaign. Responding to pressures from
Congress and activist groups the FCC has chosen to make an example of CBS for its
asserted responsibility for an unscripted frolic by two performers durng a half-time
show at the 38th Super BowI. It has imposed liability without proven fault for an event
so fleeting that if a viewer blinked, he or she would not have seen it. The amount of
2
the forfeiture has been plainly shaped more with the purose of relieving political
pressures than meeting correct legal and constitutional requirements.
Both here and in numerous other recent decisions, the Commssion's new
indecency policy has exceeded the boundares established by the FCC and assumed by
the Supreme Cour when it allowed regulating deliberate and flagrant instances of
indecent language. We urge the cour to take this occasion to hold that the
Commssion's expansive and aggressive new campaign of enforcement goes beyond
the limitations assumed by the Supreme Cour when it affirmed the FCC's indecency
doctrne in 1978, and violates the First Amendment.
ARGUMNT
I. THE EVOLVING STANARDS OF INDECENCY REGULATION
Until its 1975 decision in the Pacifca case the FCC interpreted 18 U.S.C. §
1464 as an obscenity statute, governed by the constitutional definition and constraints
ofMillerv. California, 413 U.S. 15 (1973). See
Pacifca
Found., 56 F.C.C. 2d. at 99.
The statutory proscription of "indecent or profane" language was treated as
the pre-1975 cases might have been
synonymous with obscenity. Although some of
debatable candidates for the application of Miller, they had never forced the
Commssion to consider a different standard under the rubric of indecency or profanty.
Pacifca was different: George Carlin's monologue on the seven words that "you
couldn't say on the public, ah, airwaves," clearly did not satisfy the first prong of
3
Miller's definition of obscenity, requiring that the material appeals primarly to "the
pruent interest."
Confronted on the one hand with a choice of declarg Carlin's monologue to be
obscene and inviting certain reversal in cour, and on the other hand dismissing the
complaint as damnum absque injuria, the FCC proceeded to invent a third option,
which was to give independent significance to "indecency" but also define for it a
different scope than for obscenity. Under traditional Supreme Cour jursprudence,
obscenity is unprotected speech and as such subject to total suppression.2 In contrast,
indecent speech called simply for time and place regulation; the time being between a
period when children were likely to be in the audience,3 the place being radio and
te1evision.4
2 In Roth v. United States, 354 U.S. 476 (1957), the Cour held that obscenity was
completely beyond the pale of protected speech, and this has remained the traditional
learing. However, the Cour's recent decision in Ashcroft v. ACLU, 542 U.S. 656
there are less restrctive means
of protecting children from accessing it, as by the use of filters.
(2004), suggests that this may no longer be the case if
3 The FCC did not originally set precise time limits. The present period, set fist by
the FCC and then by Congress, is between the hours of 6 a.m. and 10 p.m.
4 Indecency controls have been generally limited to broadcasting, but the curent
FCC Chairman, Kevin Martin, has endorsed an extension of indecency controls to
cable and satellite providers. The Broadcast Decency Enforcement Act of 2004:
Hearings on H.R. 3717 Before the Subcommittee on Telecommunications and the
Internet of the House Committee on Energy and Commerce, 108th Congo 87 (2004)
Kevin Martin) ("Hearings on H.R. 3717"). Even assumng the continued
viability of FCC v. Pacifca Foundation, 438 Us. 726 (1978), extending indecency
beyond broadcasting would be deeply problematic in light of United States v. Playboy
(statement of
4
The Commssion's move was completely novel; there was no judicial or
admnistrative precedent for it. But the decision was also very limited. Except where
it qualified as obscenity, indecent language was limited to that which described "sexual
or excretory activities and organs" and did so in a maer that was "patently offensive"
as measured by contemporar community stadards for the broadcast medium at times
of day when there is a reasonable risk that children may be in the audience. Pacifca
Found., 56 F.C.C.2d at 97-98. The Commssion stated it was concerned only with
"clear-cut, flagrant cases" and emphasized "that it would be inequitable. . . to hold a
licensee responsible for indecent language" when "public events likely to produce
offensive speech are covered live, and there is no opportity for jouralistic editing."
Petition for Reconsideration of a Citizen's Complaint Against Pacifca Foundation
Station WBAI(FM), New York, NY., 59F.C.C.2d892, 893n.l (1976). Thsanounced
policy of restraint was critical to how the Supreme Cour viewed the new doctrne
when it affirmed the FCC in 1978. As Justice Powell noted in a concurng opinion,
"the Commssion may be expected to proceed cautiously, as it has in the past."
Pacifca, 437 U.S. at 761 (Powell, J, concurng).
Entertainment Group, Inc., 529 U.S. 803 (2000), where the Cour held that the ability
to block cable chanels distinguished it from broadcasting and thus required a higher
degree of constitutional scrutiny. See also Sable Comms. of Cal., Inc. v. FCC, 492
U.S. 115 (1989) (Pacifca canot be applied to telephone where there are adequate
means of
preventing access by children to "dia1-a-porn" messages); Reno v. ACLU, 521
U.S. 844 (1997) (barng application of Pacifca to the internet).
5
And cautiously is how the FCC did proceed. Immediately after the Supreme
Cour affirmed its authority to regulate, the FCC rejected a petition by Morality in
Media to deny a license renewal for one of the foremost educational stations in the
countr on the ground that it had consistently broadcast "offensive, vulgar and
otherwise harful material to children." WGBH Educ. Found., 69 F.C.C.2d 1250,
1250 (1978). The Commssion held that the Cour's decision "affords this commssion
no general prerogative to intervene in any case where words similar or identical to
those in Pacifca are broadcast over a licensed radio or television station. We intend
strctly to observe the narowness of
the Pacifca holding." Id. at 1254. For nearly a
decade thereafter the FCC was tre to its word. As if in silent rebuke to critics who
had predicted that the decision would encourage a "radical censorship,"s there were no
reported enforcement actions.
In 1987 the FCC was drawn back into the indecency issue by the appearance of
"shock radio" that was designed to push provocative programg beyond what Carlin
. had attempted a decade earlier. Still, the FCC responded moderately by revising the
policy limiting enforcement policy to the precise seven words of Carlin's famous
monologue. Instead it retued to the original "generic" policy anounced in Pacifca.
S See, e.g., Ithie1 de Sola Pool, Technologies of Freedom 134 (1983); Laurence
Tribe, American Constitutional Law 67-68 (1st ed. Supp. 1979); Frederick Schauer,
Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265,270
(1981).
6
Columbia Circuit affirmed the FCC's generic
The Cour of Appeals for the Distrct of
policy, albeit not without reservation and only after admonishing the FCC to proceed
cautiously
with enforcement. Actionfor Children's Television v. FCC, 852 F.2d 1332
(D.C. Cir. 1988) ("ACT r). The court pointedly noted its assumption that "the
potential chillng effect of the FCC's generic definition will be tempered by the
Commission's restrained enforcement policy." Id. at 1340 n.14.
The cour's decision was to be the first act of a three-ACT p1ay6 in which the
FCC, Congress and cours took tus exploring the permssible limits of the new
indecency regime. We will not examine the details of the plot except to observe that in
the course of the play, at least three things were firmy established. First, the
proscription on indecency was limited to certain hours; the First Amendment forbade a
24-hour ban.7 Second, the Commssion was required to apply the indecency
restrctions on a consistent basis and was bared from discriminating against
8 Third, the cour was seriously
commercially sponsored programs or stations.
6 There was a fourh
ACT case, but it dealt only with a constitutional and statutory
challenge to the procedures for enforcing 18 U.S.C. § 1464. Action for Children's
rejected the
Television v. FCC, 59 F.3d 1249 (D.C. Cir. 1995) ("ACT IV"). The cour
challenges.
7 In the second "act," Action for Children's Television v. FCC, 932 F.2d 1504
(D.C. Cir. 1991) ("ACT If'), the cour strck down Congress' attempt in 1989 to
eliminate the indecency "safe harbor."
8 See Actionfor Children's Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) ("ACT
iir), cert. denied, 516 U.S. 1072 (1996) (affirmng the ban on indecency between the
7
concerned about the risk that the regulation of
indecency could get out of
hand. The
repeated references to the need for caution in defining and enforcing the restrctions,
the reversal of Congress' attempt to make the restrctions absolute, and the insistence
on a consistent and principled policy make clear that the court was alert to the dangers
that a policy of reining in a small number of broadcast provocateurs could easily
become a vehicle for an unconstitutional morals crusade against the entire industr.
In the aftermath of the A CT cases the Commssion continued to view indecency
as a problem of controlling a small number of rogue broadcasters and broadcast
personalities like Howard Stern, whose syndicated talk show has been responsible for a
very large percentage of all fines paid for indecent broadcasting over the past score
years.9 In 2001 the FCC did issue a set of guidelines on indecency policy. Industry
hours of 6 a.m. and 10 p.m. for all stations - reversing the use of a broader period, 6
a.m. to 12 a.m., for commercial stations).
9 In 1995 Infinity Broadcasting paid a then-record sum of $1.7 millon to settle
indecency complaints over a series of Howard Stern Shows. Paul Farhi, Stern
'Indecency' Case Settled: After 7-Year Fight With FCC, Broadcasting Firm to Pay
it. The
$1.7 Million, Washington Post, Sept. 2, 1995, at F01. That was not the last of
Howard Stern Show continued to be the occasion for fines. For example, a single
show on April 9, 2003 resulted in the Commssion issuing a notice of apparent
liability, for Clear Chanel stations carng the show, for fines aggregating $495,000.
Clear Channel Broad. Licensees, Inc., 19 FCC Rcd. 6773 (2004). The Howard Stern
Show will no longer draw indecency fines. In January 2006 Stern left commercial
radio to join Sirius, a subscription-based satellite radio provider. See Howard Kur &
Fran Ahens, Sirius Lands a Big Dog: Howard Stern, Washington Post, Oct. 7,2004,
at AOI. The FCC's indecency regulations do not apply to subscription media. See
Chicago, 3 FCC Rcd. 757, 757 n.2 (1988), remanded on other grounds,
Monroe Communications Corp. v. FCC, 900 F.2d 351 (D.C. Cir. 1990).
Harriscope of
8
Guidance on the Commission's Case Law Interpreting 18 US. C. § 1464 and
Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999, 8008-09
(2001). The guidelines did not anounce any new policy - nor, for that matter, did
they offer any new guidance beyond what could be gleaned from past enforcement
cases. Yet, the time was not far off
when things would change, radically. In 2004 the
FCC embarked on what then Chairman Michael Powell described as the "most
aggressive enforcement regime in decades." See Hearings on H.R. 3717 at 79
(statement of
Michael Powell). More precisely he could have said the most aggressive
enforcement regime ever.
Not only did the Commssion find more violations and impose more penalties
than in the entire prior history of the indecency doctrne,IO it greatly expanded the
scope of what constituted indecency, as for example in its extraordinar and
unprecedented ruling in the Golden Globe Awards decision that a single, spontaneous
and ephemeral use of the F -word was a violation of its policy. Complaints Against
"
Various Broadcast
Licensees Regarding Their Airing
of
the "Golden Globe
Awards
10 In 2004 the FCC assessed nearly $8 million in proposed fines and settlements,
compared to $440,000 a year earlier. So far the 2004 total is the high water mark for
anual collection. In the first half of the curent year the FCC assessed notices of
apparent liability totaling just under $4 million, with seven cases still pending.
Indecency Complaints and NALs: 1993-2006,
http://ww .fcc.gov/eb/ oip/Comp1StatChart.pdf.
9
Program, 19 FCC Rcd. 4975 (2004).11 And to magnify the impact still fuher the
FCC redefined what counted as a violation by now deciding that each utterance of a
forbidden word may be counted as a separate violation instead of looking at a
paricular program as a single, integrated unit. See Infinity Broad. Operations Inc., 18
FCC Rcd. 6915, 6918-19 (2003) (anouncing new per-utterance policy); Clear
Channel Broad. Licensees, Inc., 19 FCC Rcd. at 6779 (applYing per utterance policy).
Even more radically the Commssion has pursued indecency from the margins of
broadcasting into its hearland. With a few exceptions the traditional targets for
enforcement have been radio talk shows that deliberately and repeatedly followed a
pattern of provocative programmng. In its new phase, however, the Commssion has
undertaken a close inspection of movies, regular television series, live events, and even
educational documentares, to locate objectionable language. See, e.g., Complaints
Regarding Various Television Broadcasts Between February 2, 2002 and March 8,
2005,21 FCC Rcd. 2664 (2006) ("Omnibus Order") (finding violations for
use of
the
II In ruling that a single use of the "F -word" was a violation the Commssion
overted its own prior limitation of indecency to descriptions or depictions of
"sexual and excretory activities and organs." Perhaps to shore up this new expansion
the FCC also declared that use of the "F -word" was "profane" - a definition that again
depared from precedent, as well as from conventiona11inguistic understandings. As
late as 1999 the Commssion took the position that not only was mere profanity not
par of its indecency policy, but it could not constitutionally be made a part. See
Federal Communications Commssion, The Public and Broadcasting, 1999 WL
broadcast
regulatory policy.
391297 (June 1999) (a "manual" for the public, containing an overview of
10
"F -word" or "S-word" in, e.g., a documentar program, id. at 2683-87, a movie, id. at
2687 -90, a live interview, id. at 2698-2700, and a regular television series, id. at 2696-
98). With critically honored television programs like "Without a Trace" and "NYD
Blue" now being the targets of indecency patrols, see Complaints Against Various
the Program
Television Licensees Concerning Their December 31, 2004 Broadcast of
"Without a Trace," 21 FCC Rcd. 2732 (2006) (finding violation and proposing
forfeitue of $32,000 for each CBS owned or affiliated station carrng program);
Omnibus Order, 21 FCC Rcd. at 2696-98 (finding violation but imposing no forfeitue
for "NYD Blue" program),12 prime time viewers may soon experience a sense of
"Leave It To Beaver."
déjà vu as television programing reverts to the genre of
II. SUPER BOWL XXII
In the Commssion's modern indecency campaign the instant case has become a
the event, the
cause celebre, as we observed earlier. Capitalizing on the notoriety of
Commssion has attempted to push the envelope of its already expanded enforcement
policy.
12 The Commission's remand decision in the Omnibus Order dismissed the complaint
against "NYlD Blue" on a procedural ground; however, this dismissal does not alter
the substance of its earlier finding that the program contained indecent and profane
language. See Complaints Regarding Various Broadcasts Between February 2, 2002
and March 8, 2002, FCC 06-166 (reI. Nov. 6,2006).
11
Three aspects of its decision highlight the serious constitutional problems of
indecency regulation generally: One, it has imposed liability without any showing of
fault on the par of CBS or its officers. The Commssion found CBS guilty of
"willful" violation based on the principle of respondeat superior, and on the fact that it
failed to take "reasonable precautions" to prevent this event. Super Bowl Decision, 21
FCC Rcd. at 2767 - 74. The Supreme Cour has ruled that speech may not be sanctioned
except where the speaker is shown to be at fault. Gertz v. Robert Welch, Inc., 418 U.S.
323,347 (1974). That
ruling has even greater force here than it did in Gertz
where the
Cour recognized the competing interest of the plaintiff in having a remedy for the
har from 1ibeI. 13
The FCC's order attempts to finesse Gertz by denYing that vicarous liability is
strct liability. Super Bowl Decision, 21 FCC Rcd. at 2768 n.52.14 This is simply a
13 Whatever har may be imagined to have occured to young viewers who caught
a glimpse of Janet Jackson's bare breast, we are confident that it would not support a
private tort action.
14 There is as well a statutory
fault contained in 47 U.S.C. § 503(b)
which authorizes forfeitue only for "willfully or repeatedly" violating, inter alia, the
Communications Act, Commssion regulations and specified other statutes, including
requirement of
18 U.S.C. § 1464. Criminal statutes are interpreted wherever possible to require
scienter in order to avoid constitutional conflict. See, e.g., Us. v. ExCitement Video,
Inc., 513 U.S. 464 (1994)) (criminal child pornography statute interpreted to require
scienter as to all elements of the offense); Staples v. United States, 511 U.S. 600
(1994) (criminal statute for possession of
unauthorized firear interpreted to require
knowledge that firear possessed by defendant was within the statute). The
Commssion basically made two responses to CBS's argument that the scienter
requirement had not been satisfied. First, it found that the interpretive canon for
12
verbal slight of hand. Vicarious liability is strct liability. If the FCC is imposing
vicarous liability on CBS, it canot dance around the constitutional issue by
pretending otherwise. As to whether CBS was in fact at fault because its officials
failed to take reasonable precautions, Amci express no views on whether a careful
parsing of the factual record will support such a finding. However, insofar as the
the risk that something like
Commssion's finding that CBS had reason to know of
on its knowledge that the performance
Jackson's exposure would occur rests simply
criminal statutes was "inapt" to a "regulatory statute authorizing the imposition of
admnistrative sanctions." Super Bowl Decision, 21 FCC Rcd. at 2767 n.51. Second,
it held the willful requirement was satisfied by CBS's "conscious and deliberate"
failure to take precautions. Id. at 2771-72.
The Commission's fine linguistic distinction between a "civil" forfeitue and a
criminal penalty has the trappings of a Talmudic exegesis. Whle the distinction
"forfeitue
between civil and criminal penalties (note that 47 U.S.C. § 503(b) speaks of
penalty") has been accepted as a basis for some procedural requirements, the Supreme
Cour has made clear that calling a penalty a civil forfeitue does not avoid
constitutiona11imitations. See Austin v. United States, 509 U.S. 602 (1993) (in rem
civil forfeitue for drg offense is subject to the Eighth Amendment). This is
paricularly the case where the sanction is imposed on speech. See New York Times
Co. v. Sullivan, 376 U.S. 254, 277 (1964) (First Amendment protects against private
tort damages as well as criminal sanctions).
With respect to whether CBS was in fact at fault, we take no position on what a
hearng on this issue would show, but we note that once again the Commssion appears
to have improperly shifted the burden of proof. Even more extraordinarly it has done
so on the ground that someone must pay. The Commssion explained that to let CBS
off the hook would mean "leaving no one legally responsible for the result." Super
Bowl Decision, 21 FCC Rcd. at 2771-72. "Sentence first, verdict afterwards," said the
Queen in Alice in Wonderland. To which Alice appropriately replied, "Stuff and
Nonsense." Lewis Caroll, Alice in Wonderland, ch. 12.
13
is The effect is to
was "risqué," it has created an improper presumption of culpability.
shift to every producer of "risqué" programmng the burden of proving that it was
responsible in avoiding the risk of indecency. This shift in the burden of proof on a
question that is critical to whether speech may be sanctioned is unconstitutionaI. See
Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986).
Two, in finding that a sudden, fleeting appearance of Janet Jackson's bare breast
was indecent, the Commssion has relied heavily on what it describes as "context" to
support its finding of indecency, and specifically to get around its prior ruling that
mere nudity is not indecent. Super Bowl Decision, 21 FCC Rcd. at 2766-67. Context
is surely important, as the Supreme Cour's decision in Pacifca recognized. 438 U.S.
at 750. Unfortately, in the FCC's hands "context" has been invoked to support
judgments that are not merely subjective but erratic. The "context" in the instant case
was the sexually suggestive ("risqué") performance by Janet Jackson and Justin
Timberlake. However, in the same year that it issued the Notice of Apparent Liability
in this case, it rejected complaints against equally explicit scenes of sexual activity in a
scripted television program. Complaint Against Various Broadcast Licensees
Regarding Their Airing of the UPN Network Program "Buff the Vampire Slayer, " 19
is The Commssion did not find that the "risqué" performance Itse1fwas indecent,
though its opinion comes perilously close to just such a finding. If the Commssion
believes that "risqué" equals indecency, it should say so and allow the cours to see
clearly the full potential for censorship inherent in the FCC's enforcement policies.
14
FCC Rcd. 15995, 15998 (2004). Of course, any enforcement policy that is
contextually oriented entails a risk of inconsistency. As former regulators Amci are
very familiar with this problem so we have a degree of sympathy for the difficulties the
FCC faces in trng to produce a coherent enforcement policy amid the confusion and
pressure of politically charged events such as this one. However, it is precisely these
difficulties that make indecency regulation so problematic and the need for close First
Amendment scrutiny so imperative.
Thee, even assuming that a violation has occured in this case, the penalty is out
of proportion to the gravity of the offense. Initially the FCC sought to justify the
penalty by reference, inter alia, to a history of indecent broadcasts by CBS's stations.
In the final forfeitue opinion the FCC acknowledged that this was not a proper basis
for a heightened sanction, but that acknowledgment made no difference in the end
result. Instead, the FCC simply shifted to other factors, such as the size of CBS's
resources, and reiteration of the charges that CBS had been reckless in not taking
precautions to prevent Ms. Jackson's frolic. Super Bowl Decision, 21 FCC Rcd. at
2774-2776. We do not argue that it is never appropriate to measure sanctions
according to the wealth of a defendant, but in a case where liability is being imposed
without demonstrated fault it is manifestly improper. By basing penalties on what is at
most a matter of simple neglect the Commssion has made plain that the amount of the
15
fine has been tued not to the defendant's culpability but to the ears of its overseers in
Congress.
III. THE POLITICS OF REGULATION
We want to step back from the Super Bowl Decision. As we said at the outset
our primar purose in this brief is not to assist CBS in its defense of this paricular
case, but to focus the cour's attention on the larger issue of indecency enforcement.
Janet Jackson's "wardrobe malfuction" has given unusual public salience to this issue
and in tu helped to generate the political pressure that has pushed the FCC into ever
more aggressive moves against indecency. But the pariculars of this case, however
notorious, should not obscure the fact that it is emblematic of a kulturekamp that
presents a clear and present danger to First Amendment values.
The FCC's enforcement actions make it appear that there has been some rampant
growth in broadcast indecency, and indeed a casual inspection of the number of
recorded public complaints might suggest as much.I6 The number of complaints is
misleading, however. As the FCC well knows the recent rise in public complaints is
largely a product of campaigns by Parents Television Council and other activist
16 In 2004 the number of complaints was reported to be just over 1.4 million, of
which a large percentage were generated by an email campaign by Parents Television
Council and other activist citizen groups. In 2005 the number of complaints fell to just
just over 327,000 reported for the
over 233,000. For 2006 the number has risen, with
first half of 2006. See Indecency Complaints and NALs: 1993-2006,
htt://ww .fcc.gov/eb/ oip/Comp1StatChart. pdf.
16
groupS.I7 The Commssion is no stranger to such get-out-the-comp1aints campaigns by
particular interest groups, and in calmer times it might have been expected to take them
18 In this case, however, the complaints were successful in arousing Congress
in strde.
which demanded more aggressive action by the FCC. See, e.g., S. Res. 283, 108th
Congo (2003); H.R. Res. 500, 108th Congo (2004) (resolutions callng for more
vigorous enforcement against indecency). In addition to prodding the agency to take
aggressive action Congress also enacted the Broadcast Decency Enforcement Act, Pub.
L. 109-235, § 2, 120 Stat. 491, amending 47 U.S.C. § 503(b), to authorize increased
forfeitue penalties. Whle it may seem entirely natual for an agency to respond to
congressional signals it is nevertheless essential for the agency to conform its actions
17 Parents Television Council has been in the forefront of
recent efforts, but it is
not alone. Others engaged in public campaigns against indecency include Morality in
Media, American Family Association, American Decency Association, Family
Research Council, Chrstian Coalition, and American Values to give only a para11ist.
For many of these groups the indecency issue is par of a more general religious and
moral agenda. See, e.g., htt://ww.ouramericanva1ues.orgjabout.php(describingthe
group's purose as "defending life, traditional marriage, and equipping our children
with the values necessary to stand against liberal education and cultual forces"). See
also Kimberly Zarkin, Anti-Indecency Groups and the Federal Communications
Commission: A Study in the Politics of
Broadcast Regulation 71-80 (2003) (describing
American Famly Association campaigns against programs that it deems to be proChrstianity).
homosexuality, anti-family, or contain negative views of
18 Campaigns to generate public complaints against indecency are anything but a
new phenomenon. See Zarkin at 114-115 (describing a letter wrting campaign by
American Family Association in 1986-1987). However, in recent years these
campaigns have become easier to mount thanks to the internet and emaiI. See
https://ww.parentstv.orgjTC/fcc/fcccomp1aint.asp (providing emai1 forms and
instrctions for complainants).
17
to the rule of
law. The Broadcast Decency Enforcement Act did not define any new
standard of indecency, or profanity. Moreover, neither that act nor the earlier
resolutions of the House and Senate can constitutionally direct law enforcement policy;
elementar separation of powers principles forbid Congress to exercise executive (and
especiallyprosecutoria1) powers in this fashion. See Bowsher v. Synar, 478 U.S. 714
(1986). Finally, and most importantly, Congress canot insulate the indecency
standard from First Amendment constraints.
The intrsion of political pressures, whether from congressional or private
crusaders, makes all the more imperative the urgent need for the cours to intervene in
order to enforce the rule of
law. The FCC's course of action in recent years indicates
that it is no longer mindful of the admonitions of the Supreme Cour and the cour of
appeals to proceed with caution. This cour should not be subtle but blunt in reinstrcting the FCC what it has forgotten about the First Amendment. As the agency
has chosen to give no deference to the judgment of its licensees, the cour should give
no deference to the agency. There may be occasions for deferrng to an agency's
decision even when constitutional issues are at stake when the decision reflects a
judgment on matters especially within the ken of the agency. But no such case is
presented. The question of indecency does not entail any special expertse, and even if
it did the FCC has not exercised any. It has simply capitulated to political pressures.
18
IV. THE COURT'S OPTIONS
the FCC's indecency policy. The cour
The time is ripe for a reexamnation of
can approach this task in two ways. One, it can consider the general constitutionality
of the indecency program in light of the FCC's interpretation and course of
enforcement. Two, it can limit itself to a review of the Super Bowl Decision on the
assumption that a decision on the constitutionality of indecency controls in general
remains foreclosed by Pacifca. Even if
the cour chooses the second option we think
the FCC's finding violation in the present case must be found unconstitutional as
exceeding anything authorized by the Supreme Cour in 1978. However, we urge the
cour to take the first option and rule that, in light of the FCC's interpretations and
enforcement practices, 18 U.S.C. § 1464 may no longer be enforced against any
material that does not meet the constitutional standards of obscenity.
In the ordinar course of events lower cours are not empowered to second guess
a prior Supreme Cour decision. But where a series of events or actions have
undermned the foundations on which the Cour's decision rested, it is another matter.
The Cour has not directly reconsidered the specific holding in its Pacifca decision,
but it has repeatedly delimited its scope. Most notably the Cour in Sable, held that the
same indecency rules could not be constitutionally applied to telephone media, and in
Reno v. A CL U, held that such rules could not be applied to the internet. Whle the
Cour in each of these cases noted the importance of differences among media, those
19
differences in themselves become important only to the extent that the underlYing
regulation creates no special First Amendment problems.
The refusal to extend indecency controls to these other media suggests that the
Cour was paricularly mindful of the dangers of "mission creep" and the ease with
which vaguely defined concepts such as indecency can get out of hand. In Reno v.
indecency:
ACLU, the Cour placed special emphasis on the vagueness issue of
Regardless of whether the CDA is so vague that it violates the Fifth
Amendment, the many ambiguities concerning the scope of its coverage
render it problematic for puroses of the First Amendment. For instace,
each of the two pars of the CDA uses a different linguistic form. The
first uses the word "indecent," 47 U.S.C. § 223(a) (1994 ed., Supp. II),
while the second speaks of material that "in context, depicts or describes,
in terms patently offensive as measured by contemporar community
standards, sexual or excretory activities or organs," § 223( d). Given the
absence of a definition of either term, this difference in language will
provoke uncertainty among speakers about how the two standards relate
to each other; and just what they mean. Could a speaker confidently
assume that a serious discussion about birth control practices,
homosexuality, the First Amendment issues raised by the Appendix to
our Pacifca opinion, or the consequences of prison rape would not
violate the CDA? This uncertainty undermnes the likelihood that the
CDA has been carefully tailored to the congressional goal of protecting
minors from potentially harmful materials.
521 U.S. at 870-71.19 Such constitutional concerns are problematic regardless of the
medium to which such a standard1ess rule is applied.
19 It is noteworthy that the indecency definition of
the Communications Decency
Act in issue in Reno, while the same as that originally formulated in Pacifca, was
actually narower in scope than what the FCC has now formulated.
20
Moreover, insofar as the Cour's opinion in Pacifca was grounded on an
assumption that indecency controls could be contained, the FCC's recent actions
demonstrate clearly that assumption is no longer valid. To be sure, this cour could
address that issue by simply examining the enforcement action in this case. However,
this will not get at the root problem which is the FCC's demonstrated responsiveness to
political pressures from Congress and activist citizen groups. An ad hoc approach is
simply not responsive to the chilling effect problem arsing from uncertain
enforcement of an ill-defined concept.
Finally, we note that technology has introduced new opportties for the public
to control their children's access to indecent programmng, which calls into question
the need for conventiona11ega1 sanctions. It was precisely this factor that the Supreme
Cour relied on in Ashcroft in upholding a preliminar injunction against enforcement
of
the Child Online Protection Act, 47 U.S.C. § 231(a)(1) ("COPA"). In affirmng a
preliminar injunction against enforcing COP A the Cour relied on the fact that
restrctive alternative to
blocking and filtering technology appeared to provide a less.
the criminal sanctions the Act imposed; unless the governent could prove that this
technology was inadequate the Act was unconstitutionaI. The same option must be
considered a factor in the case of television broadcast indecency given the alternative
of technologies such as the V -chip device.
21
In the instant case, the FCC rejected CBS's technology argument basically on
two grounds. One, the internet is different from broadcasting (as the Cour noted in
Reno) and, two, the V -chip device will not work for live sports events that are unated
for children, as the Super Bowl was not, and would not be. Super Bowl Decision, 21
FCC Rcd. at 2777. The internet-is-specia1 argument is unesponsive; it is directed at
Reno, not
Ashcroft. What is important about the latter is the Cour's recognition that
the availability of
of
blockig or filtering technology changes the fudamental framework
First Amendment analysis generally, not
just in the context of
the internet.2o The
Commssion's second argument, that the V-chip will not work for the Super Bowl,
mayor may not be correct. We note only that in Ashcroft the Cour pointedly insisted
that, given a general availability of technological filters, the burden is on the
governent to show they would not work. 21 In all events, our concern is, again, not
20 This is evident from the fact that under COP A "indecency" was defined to be
essentially identical to "obscenity" as defined in Miller. The Cour thus appears to
have modified its traditional position that obscenity was wholly unprotected speech,
Roth, 354 U.S. at 487, by holding that even obscene speech may not be criminally
sanctioned if there are adequate technologies to prevent inadvertent exposure to it.
21 The FCC also noted that less than 10% of all parents are using the V -chip and
80% of those who have sets equipped with one are unaware they have it. Super Bowl
Decision, 21 FCC Rcd. at 2777 n.ll 7. The underutilization of the V-chip is well
known; what the Commssion has not taken into account is that this may simply
indicate that most viewers do not regard the risk of a fleeting image or word as a cause
for concern. See Playboy Entertainment, 529 U. S. at 819 (holding that fleeting images
do not warrant governent intervention, paricularly where parents have the option to
block unwanted programmg). The First Amendment requires that the listener/viewer
take some responsibility for protecting their special sensibilities.
22
with the paricular implications for this case, or futue live sports events for that matter.
The relevance of Ashcroft is its recognition that new technology calls for a
reassessment of
traditional command-and-contro1, censorial options - something that
did not exist when the Cour first addressed the indecency question in Pacifca. In fact
technology has solved most of this problem for television without regard to the V -chip
device. Curently almost 86% of television households receive their television via
cable or satellite, Annual Assessment of the Status of Competition in the Market for
Video Programming, 21 FCC Rcd. 2503, 2506 (2006), which gives them
Delivery of
access to the same blocking technology that the Cour cited in Playboy Entertainment
as a basis for finding an adequate, less restrctive, alternative to governental
censorship. See 529 U.S. at 815 (noting the ability of cable to provide "targeted
blocking"). The effectiveness of such blocking technology wil increase with the full
deployment of digital technology, as the Cour in Playboy Entertainment also noted.
Id. at 808. With such less restrctive means available to parents the First Amendment
does not allow the FCC to act as a national nany to protect children in lieu of their
parents.
CONCLUSION
In 1983, Ithie1 de Sola Pool, a distinguished political scientist and student of
communications law, described Pacifca as a "legal time bomb" that would explode
into "radical censorship." Pool at 134. Indecency regulation was then in its infancy,
23
and as we have noted, the Commssion's enforcement policy in the immediate
aftermath of Pacifca seemed to render such predictions hyperbole. As it happens,
Professor Pool was prescient, in ways that those of us who were involved in indecency
regulation in its infancy did not appreciate at the time. The present case is merely one
example of what Pool predicted. With flags flYing in pursuit of the new enemy of
good taste in broadcasting the FCC has aimed its gus at CBS and, echoing
Commodore Perr in the Battle at Lake Erie in 1813, has anounced, "we have met the
enemy and he is ours." More accurately it might have echoed Pogo's twist on Perr's
quip: "we have met the enemy and he is us."
We urge the cour to recognize that it is time to put an end to this experiment
with indecency regulation. Pacifca has ceased to be a moderate tool for reining in a
small number of provocative broadcast personalities and irresponsible licensees; it has
become a rallYing cry for a revival of Nineteenth Centu Comstockery. As former
regulators we appreciate that the FCC is in an uncomfortable position, buffeted by the
tubulent passions of moral zealots and threats from over-excited congressmen. But
the agency's hands entirely. The
that is precisely why the matter must be taken out of
FCC has now made irrevocable political commtments to a program of expanded and
intensive enforcement. Four of the present commssioners have emphasized their
support for a more vigorous enforcement, signaling to Congress and its activist
constituencies that there will be no going back to the original understanding of
24
Pacifca.22 In light of the Commission's commitment not only to pursue but even
escalate its censorial campaign, we urge this court to declare that enforcement of 18
u.S.C. § 1464 is limited to material that meets the constitutional standards of
obscenity.
22 See, e.g., Super Bowl Decision, 21 FCC Rcd. at 2781-90 (concurng statements
of Chairman Marin and Commssioners Adelstein, Copps and Tate). Only
Commssioner Adelstein expressed reservations about the scope of enforcement,
the "F-word" and "S-word"
in the Omnibus Order, issued by the FCC on the same day. At the same time, he also
declared his support for a stepped up enforcement policy generally. Id. at 2784. See
notably dissenting from sanctioning isolated instances of
also Hearings on HR. 3717, 108th Congo 83-106 (statements of Commssioners
Marin (before he became chairman), Adelstein and Copps). To the best of our
knowledge the recently appointed fifth member ofthe FCC, Commssioner McDowell,
has not yet publicly expressed any views on the subject.
25
Respectfully Submitted,
/s/ Nancy Winkelman
Nancy Winkelman
David Smith
Schnader Harson Segal & Lewis LLP
1600 Market Street, Suite 3600
Philadelphia, P A 19103
(215) 751-2000
Counsel of Record
Henr Geller
3001 Veazey Terrace, NW, Apt. 702
Washington, D.C. 20008
Glen o. Robinson
University of
Virginia School of
580 Massie Rd.
Charlottesvile, VA 22903
(434) 924-3621
November 29, 2006
26
Law
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