Action for Children's Television v. F.C.C., s. 93-1092

• Decision Date: 30 June 1995
• Docket Number: Nos. 93-1092,93-1100,s. 93-1092
• Parties: , 64 USLW 2039 ACTION FOR CHILDREN'S TELEVISION; American Civil Liberties Union; The Association of Independent Television Stations, Inc.; Capital City/American Broadcasting Co., Inc.; CBS, Inc.; Fox Television Stations, Inc.; Greater Media, Inc.; Infinity Broadcasting Corporation; Motion Picture Association of America, Inc.; National Association of Broadcasters; National Public Radio; People for the American Way; Post-Newsweek Stations, Inc.; Public Broadcasting Service; Radio-Television News Directors Association; Reporters Committee for Freedom of the Press; Society of Professional Journalists, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; United States of America, Respondents. PACIFICA FOUNDATION; National Federation of Community Broadcasters; American Public Radio; National Association of College Broadcasters; Intercollegiate Broadcast System; Pen American Center; Allen Ginsberg, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; United States of America, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 654

58 F.3d 654

313 U.S.App.D.C. 94, 64 USLW 2039

ACTION FOR CHILDREN'S TELEVISION; American Civil Liberties

Union; The Association of Independent Television Stations,

Inc.; Capital City/American Broadcasting Co., Inc.; CBS,

Inc.; Fox Television Stations, Inc.; Greater Media, Inc.;

Infinity Broadcasting Corporation; Motion Picture

Association of America, Inc.; National Association of

Broadcasters; National Public Radio; People for the

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

Broadcasting Service; Radio-Television News Directors

Association; Reporters Committee for Freedom of the Press;

Society of Professional Journalists, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; United States of

America, Respondents.

PACIFICA FOUNDATION; National Federation of Community

Broadcasters; American Public Radio; National Association

of College Broadcasters; Intercollegiate Broadcast System;

Pen American Center; Allen Ginsberg, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION; United States of

America, Respondents.

Nos. 93-1092, 93-1100.

United States Court of Appeals, District of Columbia Circuit.

Argued En Banc Oct. 19, 1994.

Decided June 30, 1995.

Petitions for Review of an Order of the Federal Communications Commission.

Timothy B. Dyk, with whom Barbara McDowell was on the briefs, argued the cause for petitioners Action for Children's Television, et al.

Eric M. Lieberman, with whom Thomas C. Viles and John P. Crigler were on the briefs argued the cause for petitioner Pacifica Foundation.

Marjorie Heins was on the briefs for petitioner American Civil Liberties Union. Steven R. Shapiro entered an appearance.

James J. Popham was on the briefs for petitioner The Ass'n of Independent Television Stations, Inc.

Molly Pauker was on the briefs for petitioner Fox Television Stations, Inc.

Dennis P. Corbett, Laura B. Humphries, and Steven A. Lerman were on the briefs for petitioner Infinity Broadcasting Corp.

Henry L. Baumann and Steven A. Bookshester were on the briefs for petitioner Nat. Ass'n of Broadcasters.

Theodore A. Miles was on the briefs for petitioner Nat. Public Radio. Karen Christensen entered an appearance.

Andrew J. Schwartzman and Elliot M. Mincberg were on the briefs for petitioner People for the American Way.

Martin Wald and Jonathan D. Blake entered appearances for petitioner Post-Newsweek Stations, Inc.

Nancy H. Hendry and Paula A. Jameson were on the briefs for petitioner Public Broadcasting Service.

J. Laurent Scharff was on the briefs for petitioner Radio-Television News Directors Ass'n.

Jane E. Kirtley was on the briefs for petitioner Reporters Committee for Freedom of the Press.

Bruce W. Sanford and Henry S. Hoberman were on the briefs for petitioner Soc. of Professional Journalists.

Christopher J. Wright, Deputy Gen. Counsel, F.C.C. ("FCC"), with whom William E. Kennard, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, FCC, and Asst. Atty. Gen. Frank W. Hunger and Barbara L. Herwig and Jacob M. Lewis, Attys., U.S. Dept. of Justice, were on the briefs, argued the cause for respondents. Jane E. Mago, Clifford G. Pash, Jr., Renee Licht, and Peter Anthony Tenhula, Counsel, FCC, entered appearances for respondents.

Before EDWARDS, Chief Judge, and WALD, SILBERMAN, BUCKLEY, WILLIAMS, GINSBURG, SENTELLE, HENDERSON, RANDOLPH, ROGERS, and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY, in which Circuit Judges SILBERMAN, STEPHEN F. WILLIAMS, GINSBURG, SENTELLE, KAREN LeCRAFT HENDERSON, and RANDOLPH concur.

Dissenting opinion filed by Chief Judge HARRY T. EDWARDS.

Dissenting opinion filed by Circuit Judge WALD, in which Circuit Judges ROGERS and TATEL join.

BUCKLEY, Circuit Judge:

We are asked to determine the constitutionality of section 16(a) of the Public Telecommunications Act of 1992, which seeks to shield minors from indecent radio and television programs by restricting the hours within which they may be broadcast. Section 16(a) provides that, with one exception, indecent materials may only be broadcast between the hours of midnight and 6:00 a.m. The exception permits public radio and television stations that go off the air at or before midnight to broadcast such materials after 10:00 p.m.

We find that the Government has a compelling interest in protecting children under the age of 18 from exposure to indecent broadcasts. We are also satisfied that, standing alone, the "channeling" of indecent broadcasts to the hours between midnight and 6:00 a.m. would not unduly burden the First Amendment. Because the distinction drawn by Congress between the two categories of broadcasters bears no apparent relationship to the compelling Government interests that section 16(a) is intended to serve, however, we find the more restrictive limitation unconstitutional. Accordingly, we grant the petitions for review and remand the cases to the Federal Communications Commission with instructions to revise its regulations to permit the broadcasting of indecent material between the hours of 10:00 p.m. and 6:00 a.m.

I. BACKGROUND

The Radio Act of 1927 provides that "[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both." 18 U.S.C. Sec. 1464 (1988). While all obscene speech is indecent, not all indecent speech is obscene. The Supreme Court has defined obscene material as

works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973). In enforcing section 1464 of the Radio Act, the Federal Communications Commission defines "broadcast indecency" as

language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.

In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. Sec. 1464, 8 F.C.C.R. 704, 705 n. 10 (1993) ("1993 Report and Order "). This definition has remained substantially unchanged since it was first enunciated in In re Pacifica Foundation, 56 F.C.C.2d 94, 98 (1975).

While obscene speech is not accorded constitutional protection, "[s]exual expression which is indecent but not obscene is protected by the First Amendment...." Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989). "The Government may, however, regulate the content of [such] constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." Id. Noting that broadcasting has received the most limited First Amendment protection because of its unique pervasiveness and accessibility to children, the Supreme Court has held that the FCC may, in appropriate circumstances, place restrictions on the broadcast of indecent speech. See FCC v. Pacifica Foundation, 438 U.S. 726, 750-51, 98 S.Ct. 3026, 3041, 57 L.Ed.2d 1073 (1978) ("when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.").

In In re Infinity Broadcasting Corp. of Pa., 3 F.C.C.R. 930 (1987) ("Reconsideration Order "), the Commission reviewed its decisions in three cases: In re Infinity Broadcasting Corp. of Pa., 2 F.C.C.R. 2705 (1987), In re Pacifica Foundation, Inc., 2 F.C.C.R. 2698 (1987), and In re Regents of the University of California, 2 F.C.C.R. 2703 (1987). One of these cases involved a morning broadcast; the other two dealt with programs that were aired after 10:00 p.m. In each of them, the agency found that a radio station had introduced particularly offensive pigs into American parlors in violation of section 1464. The offending morning broadcast, for example, contained "explicit references to masturbation, ejaculation, breast size, penis size, sexual intercourse, nudity, urination, oral-genital contact, erections, sodomy, bestiality, menstruation and testicles." Reconsideration Order, 3 F.C.C.R. at 932 (internal quotation marks omitted). The remaining two were similarly objectionable. See id. at 932-33.

The FCC reaffirmed the Government interest in safeguarding children from exposure to such speech and placed broadcasters on notice that because

at least with respect to the particular markets involved, available evidence suggested there were still significant numbers of children in the audience at 10:00 p.m. ... broadcasters should no longer assume that 10:00 p.m. is automatically the time after which indecent broadcasts may safely be aired. Rather, ... indecent material would be actionable (that is, would be held in violation of 18 U.S.C. Sec. 1464) if broadcast when there is a reasonable risk that children may be in the audience....

Id. at 930-31. The Commission noted, however, that it was its "current thinking" that midnight marked the time after which

it is reasonable to expect that it is late enough to ensure that the risk of children in the audience is minimized and to rely on parents to exercise increased supervision over whatever children remain in the viewing and listening audience.

Id. at 937 n. 47.

In our review of the Reconsideration Order in Action for Children's Television v. FCC, 852 F.2d 1332 (D.C.Cir.1988) ("ACT I" ), we rejected the argument that the Commission's definition of indecency was unconstitutionally vague and overbroad. Id. at 1338-40. But although we affirmed the declaratory ruling that found portions of the morning broadcast to be in violation of section 1464, id. at 1341, we vacated the Commission's rulings with respect to the two post-10:00 p.m. broadcasts. Id. In those instances, we considered the findings on which the...