Action for Children's Television v. F.C.C.

• Decision Date: 23 November 1993
• Docket Number: Nos. 93-1092,93-1100,s. 93-1092
• Citation: 11 F.3d 170
• Parties: , 21 Media L. Rep. 2289 ACTION FOR CHILDREN'S TELEVISION; American Civil Liberties Union; The Association of Independent Television Stations, Inc.; Capital Cities/ABC, 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, Morality in Media; National Family Legal Foundation; American Family Association; Focus on the Family; National Law Center for Children and Families; Concerned Women of America; National Coalition Against Pornography; National Association of Evangelicals; Religious Alliance Against Pornography; Family Research Council; National Religious Broadcasters, Amici Curiae. 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 170

11 F.3d 170

304 U.S.App.D.C. 126, 21 Media L. Rep. 2289

ACTION FOR CHILDREN'S TELEVISION; American Civil Liberties

Union; The Association of Independent Television Stations,

Inc.; Capital Cities/ABC, 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,

Morality in Media; National Family Legal Foundation;

American Family Association; Focus on the Family; National

Law Center for Children and Families; Concerned Women of

America; National Coalition Against Pornography; National

Association of Evangelicals; Religious Alliance Against

Pornography; Family Research Council; National Religious

Broadcasters, Amici Curiae.

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 Sept. 13, 1993.

Decided Nov. 23, 1993.

Rehearing Denied; Rehearing In Banc Granted, Judgment

Vacated Feb. 16, 1994.

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

Timothy B. Dyk, argued the cause for petitioners Action for Children's Television, et al., in No. 93-1092. With him on the joint brief were Barbara McDowell, Marjorie Heins, James J. Popham, Molly Pauker, Steven A. Lerman, Dennis P. Corbett, Laura B. Humphries, John P. Crigler, Elliot M. Mincberg, Henry L. Baumann, Steven A. Bookshester, Theodore A. Miles, Karen Christensen, Eric M. Lieberman, Thomas C. Viles, Andrew J. Schwartzman, Jonathan D. Blake, Paula A. Jameson, Nancy H. Hendry, J. Laurent Scharff, Jane E. Kirtley, Bruce W. Sanford and Henry S. Hoberman. Steven R. Shapiro entered an appearance for petitioner American Civil Liberties Union in No. 93-1092. Martin Wald entered an appearance for petitioner Post-Newsweek Stations, Inc., in No. 93-1092.

Eric M. Lieberman argued the cause for petitioners Pacifica Foundation, et al., in No. 93-1100. With him on the brief was John P. Crigler. Thomas C. Viles entered an appearance for petitioners in No. 93-1100.

Jane E. Mago, Asst. Gen. Counsel, F.C.C., argued the cause for respondents. With her on the brief were Renee Licht, Acting Gen. Counsel, Daniel McMullen Armstrong, Asst. Gen. Counsel, Clifford G. Pash, Jr., and Peter A. Tenhula, Counsel, F.C.C., and Barbara L. Herwig and Jacob M. Lewis, Attys., U.S. Dept. of Justice.

On the joint brief for amici curiae were George R. Grange, James P. Mueller and Paul J. McGeady.

Before MIKVA, Chief Judge, WALD and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Opinion concurring specially filed by Circuit Judge HARRY T. EDWARDS.

WALD, Circuit Judge:

Petitioners, a group of broadcasters, authors, program suppliers, listeners, and viewers challenge the constitutionality of a Federal Communications Commission ("FCC" or "Commission") order, issued at the direction of Congress, banning "indecent" material from broadcasting during the hours from 6 a.m. to midnight. ¹ While we break some new ground, our decision that the ban violates the First Amendment relies principally upon two prior decisions of this court in which we addressed similar challenges to FCC orders restricting the broadcasting of "indecent" material, as defined by the FCC. See Action for Children's Television v. FCC, 852 F.2d 1332 (D.C.Cir.1988) ("ACT I "), Action for Children's Television v. FCC, 932 F.2d 1504 (D.C.Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1281, 117 L.Ed.2d 507 (1992) ("ACT II ").

The FCC invokes three goals to justify the regulations: (i) "ensuring that parents have an opportunity to supervise their children's listening and viewing of over-the-air broadcasts," (ii) "ensuring the well being of minors" regardless of parental supervision, and (iii) protecting "the right of all members of the public to be free of indecent material in the privacy of their homes." In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. Sec. 1464, 8 F.C.C.R. 704, 705-706 pp 10, 14 (1993) ("1993 Order"). See Respondents' Brief at 14. For reasons stated below, we find the third interest, protecting the general public, insufficient to support a restriction on the broadcasting of constitutionally protected "indecent" material; we accept as compelling the first two interests involving the welfare of children, but in our view, the FCC and Congress have failed to tailor their efforts to advance these interests in a sufficiently narrow way to meet constitutional standards.

I. BACKGROUND

Since the Radio Act of 1927, federal law has prohibited the broadcasting of "indecent" material. 18 U.S.C. Sec. 1464. ² See Radio Act of 1927, Pub.L. No. 69-632, Sec. 29, 44 Stat. 1162, 1172-73; FCC v. Pacifica Found., 438 U.S. 726, 735-38, 98 S.Ct. 3026, 3033-35, 57 L.Ed.2d 1073 (1978) ("Pacifica") (discussing statutory history of indecency regulation). ³ The Commission interpreted the "concept of 'indecent' [to be] intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience." Pacifica Found., 56 F.C.C.2d 94, 98 (1975), quoted in Pacifica, 438 U.S. at 731-32, 98 S.Ct. at 3031.

In 1978, the Supreme Court upheld an FCC decision finding "indecent" a monologue by entertainer George Carlin entitled "Filthy Words" broadcast over radio at 2 o'clock in the afternoon. Pacifica, 438 U.S. at 734-35, 750-51, 98 S.Ct. at 3033, 3041. For the next decade the Commission limited itself to enforcing the Sec. 1464 indecency ban only against material involving "the repeated use, for shock value, of words similar or identical to those satirized in the Carlin 'Filthy Words' monologue." In re Infinity Broadcasting Corp. of Pa., 3 F.C.C.R. 930 p 4 (1987) ("Reconsideration Order"). In addition, the Commission took no action against broadcasters who broadcast indecent but not obscene material after 10 p.m. Id.

In 1987 the Commission broadened its enforcement of Sec. 1464 by issuing a ruling which affirmed, on reconsideration, three prior rulings against broadcasters for airing indecent material. Reconsideration Order, 3 F.C.C.R. 930. ⁴ First, the Commission narrowed the safe harbor period for "indecent" material to the hours between midnight and 6 a.m.; second, it broadened its enforcement of Sec. 1464 to include all material encompassed by its description of "indecency" rather than only the "Filthy Words" category. The Commission also abandoned reliance on the time of broadcast as an element of the determination of whether material was "indecent." It now considered broadcast time only as a factor in the decision of whether to take action against "indecent" broadcasting. See ACT I, 852 F.2d at 1338 n. 8. Today, the FCC "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." 1993 Order, 8 F.C.C.R. at 704-5 p 4 n. 10. This does not appear materially different from the definition considered in ACT I.

The Reconsideration Order was the subject matter of ACT I, which upheld the indecency standard promulgated by the FCC against vagueness and overbreadth challenges in light of the Commission's "avowed objective ... not to establish itself as a censor but to assist parents in controlling the material young children will hear." 852 F.2d at 1334 (emphasis in original). See also id. at 1343. However, ACT I struck down the contraction of the safe harbor period to midnight through 6 a.m. as unjustified by the record. Id. at 1334. In particular, the ACT I court noted that the Commission had not explained its expansion of the definition of protected "children" from below-12 years of age to adolescents from 12-17, and moreover, had merely estimated "the number of teens in the total ... audience," and not adduced any specific audience data for the "specific ... stations" that were alleged to have placed children at risk of exposure to indecent material. Id. at 1341 (emphasis in original). See id. at 1341-44.

Following ACT I, Congress passed an appropriations rider which directed the FCC to promulgate regulations for the enforcement of Sec. 1464 on a 24-hour per day basis. Pub.L. No. 100-459, Sec. 608, 102 Stat. 2186, 2228 (1988). The FCC conducted rulemaking proceedings in support of the 24 hour ban in 1989-90. See In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. Sec. 1464, 4 F.C.C.R. 8358 (1989) (notice of inquiry) ("1989 NOI"); 5 F.C.C.R. 5297 (1990) ("1990 Report"). This court in ACT II struck down the 24-hour prohibition on broadcasting of indecent material. 932 F.2d at 1510. The court relied largely on its interpretation of ACT I as requiring that some safe harbor for broadcasting indecent material be maintained, and that even "Congress itself" could not totally ban indecent speech. Id. at 1509. Since the decision in ACT II "effectively return[ed] the Commission to the position it briefly occupied after ACT I and prior to congressional adoption of" the 24-hour ban, we directed the Commission to resume its rulemaking to determine the factual issues as...