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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 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 , 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

of the UPN Network Program "Buff the Vampire Slayer, " 19 FCC Rcd. 15995 (2004) ...... 14 Complaints Against Various Broadcast Licensees Regarding Their Airing

of the "Golden Globe Awards" Program, 19 FCC Rcd. 4975 (2004) ...... 9, 10 Complaints Against Various Television Licensees Concerning Their

December 31, 2004 Broadcast of the Program "Without a Trace," 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 , 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

Robinson, curently the David A. and Mar Harson Distinguished Professor of Law

at the University of Virginia, served as Commssioner from 1974 to 1976, and 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

program fare. Amici have authority to file this brief pursuant to Rule 29, Fed. R. App.

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

Concerning Their February 1, 2004 Broadcast of the Super Bowl XXIII Halfime

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

synonymous with obscenity. Although some of the pre-1975 cases might have been 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

(2004), suggests that this may no longer be the case if there are less restrctive means of protecting children from accessing it, as by the use of filters. 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)

(statement of 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

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 The Cour of Appeals for the Distrct of Columbia Circuit affirmed the FCC's generic 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

Television v. FCC, 59 F.3d 1249 (D.C. Cir. 1995) ("ACT IV"). The cour rejected the 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 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

$1.7 Million, Washington Post, Sept. 2, 1995, at F01. That was not the last of it. 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 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

Harriscope of 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).

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

391297 (June 1999) (a "manual" for the public, containing an overview of broadcast regulatory policy.

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

Television Licensees Concerning Their December 31, 2004 Broadcast of the Program

"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 viewers may soon experience a sense of

déjà vu as television programing reverts to the genre of "Leave It To Beaver." II. SUPER BOWL XXII

In the Commssion's modern indecency campaign the instant case has become a

cause celebre, as we observed earlier. Capitalizing on the notoriety of the event, the

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 requirement of 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 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

Commssion's finding that CBS had reason to know of the risk that something like

Jackson's exposure would occur rests simply on its knowledge that the performance

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 between civil and criminal penalties (note that 47 U.S.C. § 503(b) speaks of "forfeitue 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 over 233,000. For 2006 the number has risen, with just over 327,000 reported for the 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 pro- homosexuality, anti-family, or contain negative views of Chrstianity). 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 re- instrcting 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 time is ripe for a reexamnation of the FCC's indecency policy. The cour 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.

ACLU, the Cour placed special emphasis on the vagueness issue of indecency:

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

blocking and filtering technology appeared to provide a less. restrctive alternative to 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 blockig or filtering technology changes the fudamental framework

of 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

Delivery of Video Programming, 21 FCC Rcd. 2503, 2506 (2006), which gives them 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

that is precisely why the matter must be taken out of the agency's hands entirely. The

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, notably dissenting from sanctioning isolated instances of 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 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 Law 580 Massie Rd. Charlottesvile, VA 22903 (434) 924-3621

November 29, 2006

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Isl David Smith David Smith