Action for Children’s Television v. FCC [ACT III], 58 F.3d 654 (D.C. Cir 1995) (en banc), cert. denied 516 U.S. 1043 Commission'

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. § 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 (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. § 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 (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 (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. § 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 Commission rested its decision to be "more ritual than real," id., because the Commission had relied on data as to the number of teenagers in the total radio audience rather than the number of them who listened to the radio stations in question. We were also troubled by the FCC's failure to explain why it identified the relevant age group as children aged 12 to 17 when it had earlier proposed legislation for the protection of only those under 12. Id. at 1341-42. We further concluded that "the FCC's midnight advice, indeed its entire position on channeling, was not adequately thought through." Id. at 1342.
Two months after our decision in ACT I, Congress instructed the Commission to promulgate regulations "enforc[ing] the provisions of … section [1464] on a 24 hour per day basis." Pub. L. No. 100-459, § 608, 102 Stat. 2186, 2228 (1988). The Commission complied by issuing a regulation banning all broadcasts of indecent material, which was immediately challenged by Action for Children's Television and others. The following year, we remanded the record to the Commission to enable it to solicit information relevant to the congressionally mandated 24-hour ban; and in 1989, the FCC issued a "Notice of Inquiry" for that purpose. In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, 4 F.C.C.R. 8358 (1989) (" 1989 NOI ").
After analyzing the public comment received in response to the 1989 NOI, the Commission reported its conclusions in In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, 5 F.C.C.R. 5297 (1990) (" 1990 Report "). In the 1990 Report, the FCC defined the category of persons to be protected under section 1464 as "children ages 17 and under." Id. at 5301. It then found that because
the narrowness with which courts have interpreted "obscenity" has commensurably broadened the range of patently offensive material that could be deemed "indecent" if broadcast … [and in light of the evidence] that there is a reasonable risk that significant numbers of children ages 17 and under listen to radio and view television at all times of day and night[,] … the compelling government interest in protecting children from indecent broadcasts would not be promoted effectively by any means more narrowly tailored than a 24-hour prohibition.
Id. at 5297.
We reviewed the 24-hour ban in Action for Children's Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991) ( "ACT II" ). We again rejected petitioners' vagueness and overbreadth arguments, but we struck down the total ban on indecent broadcasts because "[o]ur previous holding in ACT I that the Commission must identify some reasonable period of time during which indecent material may be broadcast necessarily means that the Commission may not ban such broadcasts entirely." Id. at 1509.
Shortly after the Supreme Court denied certiorari in ACT II, 112 S. Ct. 1281 (1992), Congress again intervened, passing the Public Telecommunications Act of 1992, Pub. L. No. 102-356, 106 Stat. 949 (1992). Section 16(a) of the Act requires the Commission to
promulgate regulations to prohibit the broadcasting of indecent programming_
(1) between 6 a.m. and 10 p.m. on any day by any public radio station or public television station that goes off the air at or before 12 midnight; and
(2) between 6 a.m. and 12 midnight on any day for any radio or television broadcasting station not described in paragraph (1).
47 U.S.C. § 303 note (Supp. IV 1992). Pursuant to this congressional mandate, the Commission published a notice of proposed rulemaking, In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. § 1464, 7 F.C.C.R. 6464 (1992), and, in 1993, it issued regulations implementing section 16(a). 1993 Report and Order, 8 F.C.C.R. at 711; 47 C.F.R. § 73.3999 (1994). These are challenged in the petition now before us.

I. First Amendment Protections for the Broadcast Media
Over the years, Congress and the Commission have regulated the broadcast media more heavily than they have regulated the non-broadcast media. And courts have upheld speech-restrictive regulations imposed on broadcast which undoubtedly would have been struck down were they imposed on other media. See, e.g., Turner Broadcasting Sys., Inc. v. FCC, 114 S. Ct. 2445, 2456 (1994) (" TBS ") ("It is true that our cases have permitted more intrusive regulation of broadcast speakers than of speakers in other media.") 6 ; FCC v. League of Women Voters of California, 468 U.S. 364, 376 (1984) ("Were a similar ban … applied to newspapers and magazines, we would not hesitate to strike it down as violative of the First Amendment."). The Supreme Court has explained its tendency to uphold speech-restrictive regulations of broadcast as providing the broadcast media with limited First Amendment protection. See, e.g., FCC v. Pacifica Found., 438 U.S. 726, 748 (1978) (plurality opinion) ("[O]f all forms of communication, it is broadcasting that has received the most limited First Amendment protection.").
The absurdity of this bifurcated approach_applying a relaxed level of scrutiny to content-based regulations of broadcast and a strict level of scrutiny for content-based regulations of non-broadcast media_is most apparent in a comparison of the Supreme Court's analysis of broadcast and cable. In Pacifica, a plurality of the Court applied a reduced level of scrutiny in determining the First Amendment rights of a broadcasting station. 438 U.S. at 748 -50. Last year, however, a majority of the Court held that cable television is entitled to the same First Amendment protection as all other non-broadcast media. TBS, 114 S. Ct. at 2456-57. There is no justification for this apparent dichotomy in First Amendment jurisprudence. Whatever the merits of Pacifica when it was issued almost 20 years ago, it makes no sense now. 7
The justification for the Supreme Court's distinct First Amendment approach to broadcast originally centered on the notion of spectrum scarcity. The electromagnetic spectrum was physically limited_there were more would-be broadcasters than frequencies available and broadcasters wishing to broadcast on the same frequency may have interfered with each other_and required regulation to assign frequencies to broadcasters. See TBS, 114 S. Ct. at 2456. The Court reasoned that the Government could impose limited content restraints and certain affirmative obligations on broadcasters on account of spectrum scarcity. See id. at 2457 (citing Red Lion, 395 U.S. at 390 ). In 1978, the Court provided two additional rationales_broadcast was uniquely intrusive into the privacy of the home and uniquely accessible to children_which justified relaxed scrutiny and thereby reduced the First Amendment protection accorded to broadcasters. See Pacifica, 438 U.S. at 748 -49. These justifications_spectrum scarcity, intrusiveness, and accessibility to children_neither distinguish broadcast from cable, nor explain the relaxed application of the principles of the First Amendment to broadcast.
A. Spectrum Scarcity
In 1943, the Court determined that the "unique characteristic" of broadcast_that "[u]nlike other modes of expression, radio inherently is not available to all"_explained "why, unlike other modes of expression, it is subject to governmental regulation." National Broadcasting Co., Inc. v. United States, 319 U.S. 190, 226 (1943) (" NBC "). Twenty-six years later, the Court spun out the First Amendment implications of this burgeoning scarcity theory. Red Lion, 395 U.S. at 388 -90. The Court first offered an economic scarcity theory, 8 finding that "[w]here there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish." 9 Id. at 388. The Court also offered a technological scarcity theory: recognizing the need to prevent "overcrowd[ing of] the spectrum," 10 id. at 389, the Court held that, "[b]ecause of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium," 11 id. at 390.
Although the Supreme Court has not declared the distinction between broadcast and other media a dead one, it has not lately given the distinction an enthusiastic endorsement. In fact, in recent years the Court has only grudgingly upheld the distinction. See, e.g., TBS, 114 S. Ct. at 2456-57. On a few occasions, the Supreme Court has acknowledged the mounting criticism against its scarcity rationale. See id. at 2457 (noting, that "courts and commentators have criticized the scarcity rationale since its inception"); 12 League of Women Voters, 468 U.S. at 376 -77 n.11. 13 Nevertheless, to date, the Court has declined to revisit the validity of the scarcity rationale. See TBS, 114 S. Ct. at 2457 ("[W]e have declined to question its continuing validity as support for our broadcast jurisprudence … and see no reason to do so here."); League of Women Voters, 468 U.S. at 377 n.11 ("We are not prepared, however, to reconsider our longstanding approach without some signal from Congress or the FCC that technological developments have advanced so far that some revision of the system of broadcast regulation may be required."). 14 In my view, it is no longer responsible for courts to apply a reduced level of First Amendment protection for regulations imposed on broadcast based on an indefensible notion of spectrum scarcity. It is time to revisit this rationale.
For years, scholars have argued that the scarcity of the broadcast spectrum is neither an accurate technological description of the spectrum, nor a "unique characteristic" that should make any difference in terms of First Amendment protection. 15 First, in response to the problem of broadcast interference when multiple broadcasters attempt to transmit on the same frequency, critics point out that this problem does not distinguish broadcasting from print 16 and is easily remedied with a system of administrative licensing or private property rights. 17 Another problem alluded to by the Court in Red Lion is the claim that the spectrum is inherently limited, in contrast to cable stations or newsprint. Today, however, the nation enjoys a proliferation of broadcast stations, 18 and should the country decide to increase the number of channels, it need only devote more resources toward the development of the electromagnetic spectrum. 19
In response to the economic scarcity argument_that there are more would-be broadcasters than spectrum frequencies available_economists argue that all resources are scarce in the sense that people often would like to use more than exists. 20 Especially when the Government gives away a valuable commodity, such as the right to use certain airwaves free of charge, the demand will likely always exceed the supply. 21 And with the development of cable, spectrum-based communications media now have an abundance of alternatives, essentially rendering the economic scarcity argument superfluous.
In short, neither technological nor economic scarcity distinguish broadcast from other media. And while some may argue that spectrum scarcity may justify a system of administrative regulation as opposed to a free market approach to stations, 22 the theory does not justify reduced First Amendment protection.
B. Accessibility to Children and Pervasiveness
The two additional rationales offered by the plurality opinion in Pacifica, attempting to distinguish broadcasting from other media, also fail to justify limited First Amendment protection of broadcast. The plurality found that "broadcasting is uniquely accessible to children, even those too young to read." Pacifica, 438 U.S. at 749 . 23 This characteristic, however, fails to distinguish broadcast from cable; and, notably, the rationale is absent from the Court's TBS opinion.
The plurality in Pacifica added another rationale which really has two components. The opinion reasoned that "the broadcast media have established a uniquely pervasive presence in the lives of all Americans…. [The] material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home." 24 Id. at 748. Again, the pervasiveness of its programming hardly distinguishes broadcast from cable. As noted above, cable is pervasive: a majority of television households have cable today, and this percentage has increased every year over the last two decades. See National Cable Television Association, supra, at 1-A, 2-A. The intrusiveness rationale, that the material confronts the citizen in the privacy of his or her home, likewise, does not distinguish broadcast from cable, nor account for the divergent First Amendment treatment of the two media. Finally, in light of TBS, in which the Court omitted any discussion of these rationales, the Pacifica rationales no longer can be seen to serve as justifications for reduced First Amendment protection afforded to broadcast.
It is relevant that Pacifica was a plurality opinion which provided a very limited holding. See 438 U.S. at 750 ("It is appropriate … to emphasize the narrowness of our holding…. The Commission's decision rested entirely on a nuisance rationale under which context is all-important."). The Court has subsequently emphasized that Pacifica 's holding was "emphatically narrow," Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 127 (1989), essentially confirming that Pacifica never was seen to be a seminal statement of constitutional law. But beyond the narrowness of the Court's decision, it seems clear now that Pacifica is a flawed decision, at least when one considers it in light of enlightened economic theory, technological advancements, and subsequent case law. The critical underpinnings of the decision are no longer present. Thus, there is no reason to uphold a distinction between broadcast and cable media pursuant to a bifurcated First Amendment analysis. 25
II. Full First Amendment Protection of Broadcast
Because no reasonable basis can be found to distinguish broadcast from cable in terms of the First Amendment protection the two media should receive, I would review section 16(a) and the Enforcement Order under the stricter level of scrutiny courts apply to content-based regulations of cable. This means "the most exacting scrutiny" should be applied "to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content." TBS, 114 S. Ct. at 2459. 26 In Sable, the Court indicated that the "exacting scrutiny" test has two prongs: the Government's interests must be "compelling," and the method of regulation chosen must be "the least restrictive means" to achieve those compelling interests. 492 U.S. at 126 . That is the essence of the test, I think.
In this case, the majority views the broadcast media as disfavored in the application of First Amendment rights, relying principally on Pacifica; however, my colleagues nonetheless agree that section 16(a) reflects a content-based regulation that is subject to exacting scrutiny. Indeed, even the FCC viewed the case in this way. In my view, there is no way that section 16(a) can survive exacting scrutiny.
A. Content-Based Regulations
In explaining the reasons for applying heightened or exacting scrutiny, the Supreme Court recently stated:
At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence.
TBS, 114 S. Ct. at 2458. This fundamental principle means that "the First Amendment … does not countenance governmental control over the content of messages expressed by private individuals." Id. 27 Because section 16(a) and the Enforcement Order ban indecent expression, 28 they constitute content-based regulations, which have traditionally raised the red flag of exacting scrutiny. As the Court stated in Sable, "[t]he Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest." 492 U.S. at 126 . At issue in this case is whether the Government's interests are indeed compelling and whether it has chosen the least restrictive means to further its asserted compelling interests.
To withstand constitutional scrutiny, the Government's regulations must serve its interests " "without unnecessarily interfering with First Amendment freedoms.' " Id. at 126 (quoting Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637 (1980)). The First Amendment rights at stake here are those of broadcasters and the adult broadcasting audience. The Supreme Court finds laws insufficiently tailored when they deny adults their free speech rights by allowing them to read, watch, or hear only what was acceptable for children. See, e.g., Butler v. Michigan, 352 U.S. 380, 383 (1957); Sable, 492 U.S. at 127 (finding that "this case, like Butler, presents [the Court] with "legislation not reasonably restricted to the evil with which it is said to deal' ") (quoting Butler, 352 U.S. at 383 ).
When First Amendment rights are at stake, appellate courts cannot defer to a legislative finding, but must make an independent inquiry to assess whether the record supports the Government's interests. Sable, 492 U.S. at 129 ; Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978) (assessing legislative finding or "declaration" that clear and present danger existed). The Court has found this "particularly true where the Legislature has concluded that its product does not violate the First Amendment." Sable, 492 U.S. at 129 .
B. Compelling Interests
The FCC claims that section 16(a) serves three compelling governmental interests. The ban is meant, first, to support parental supervision of children; second, to promote the well-being of minors; and third, to preserve the privacy of the home. Enforcement Order, 8 F.C.C.R. at 705-06. Only the first two interests are at issue.
With respect to the interest in facilitating parental supervision, the Supreme Court has stated that the law has "consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society." Ginsberg v. New York, 390 U.S. 629, 639 (1968). It is entirely reasonable for "[t]he legislature [to] properly conclude that parents and others … who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility." Id. Similarly, with respect to the Commission's second interest, protecting the well-being of its youth, the Court on numerous occasions has found "a compelling interest in protecting the physical and psychological well-being of minors." Sable, 492 U.S. at 126 ; see also Pacifica, 438 U.S. at 749 ; Ginsberg, 390 U.S. at 640 . But to note that these interests are compelling in the abstract is not to scrutinize the Government's assertions as applied to this case.
As I discussed in the panel decision, Action for Children's Television v. FCC, 11 F.3d 170, 183-86 (D.C. Cir. 1993) (Edwards, J., concurring), one of the most significant problems with the Government's defense of its regulations is that its first two asserted interests, at least as the FCC appears to define their scope here, are irreconcilably in conflict. The Commission cannot simultaneously seek to facilitate parental supervision over their children's exposure to indecent programming and at the same time protect all children from indecent speech by imposing a flat ban on indecent programming from the hours of 6 a.m. to midnight. Simply put, among the myriad of American parents, not every parent will decide, as the Commission has, that the best way to raise its child is to have the Government shield children under eighteen from indecent broadcasts. Furthermore, not every parent will agree with the Commission's definition of indecency, nor whether it is appropriate in some contexts, nor at what age their own children may be exposed to such programming. In asserting both interests_facilitating parental supervision and protecting children from indecent broadcast_the Government must assume not only that parents agree with the Commission, but that parents supervise their children in some uniform manner. Surely, this is not the case. When acting consciously, some parents may prohibit their children from any exposure to indecent material; some may impose a modified prohibition depending upon the content of the programming and the child's maturity; still others may view or listen to indecent material with their children, either to criticize, endorse, or remain neutral about what they see or hear. A complete ban on indecent broadcasts does not facilitate the variety of American parents in supervising their children's exposure to broadcasting.
The Commission maintains that these two interests bolster and reinforce each other. Tr. of Oral Argument at 56. It contends that "it simply is not practical for these parents to control effectively what their children might see and hear on the broadcast medium." Brief for Respondents at 16. But here, the Commission assumes that parents are unavailable or inept at the task of parenting, and essentially establishes itself as the final arbiter of what broadcast American children may see and hear. In so doing, the Government tramples heedlessly on parents' rights to rear their children as they see fit and to inculcate them with their own moral values. 29 Courts generally do not take these moves lightly. We have long recognized the rights of parents to raise their children in the manner they see fit. See, e.g., Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925) (striking state law requiring children to attend public schools as "interfer[ing] with the liberty of parents and guardians to direct the upbringing and education of children under their control"); Meyer v. Nebraska, 262 U.S. 390, 401 (1923) (striking state law that prohibited teaching foreign languages to children as interfering with "the power of parents to control the education of their own"). As the Supreme Court said in Ginsberg, "constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society." 390 U.S. at 639 ; see also Wisconsin v. Yoder, 406 U.S. 205, 213-36 (1972) (exempting children of Amish faith from compulsory school attendance law on grounds that it impinges on other fundamental rights such as traditional interest of parents with respect to religious upbringing of their children). When the Government does intervene in the rearing of children contrary to parents' preferences, it is usually in response to some significant breakdown within the family unit or in the complete absence of parental caretaking. Society protects children who are abused, neglected, or abandoned, because the harm is clear and such actions are contrary to civilized notions of parenting. The Government does not generally tell parents what speech their children should and should not hear absent some showing of harm to their children.
In other contexts, these two interests_facilitating parental supervision and protecting children from indecency_may have worked in tandem. For example, in Pacifica, a father's complaint that his son heard an indecent monologue prompted the FCC to enforce sanctions. Pacifica, 438 U.S. at 729 -33. In that case, facilitating parental control and protecting the well-being of minors might have simultaneously converged; the parent agreed with the Commission (or vice versa). In Ginsberg, the statute only prohibited selling obscene magazines to minors; it did not prohibit the selling of obscene magazines to everyone. 390 U.S. 634 -35. Again, this statute may be viewed as facilitating parental control while simultaneously protecting children from indecency. Indeed, the Court explicitly recognized that "the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children." Id. at 639 (citing Louis Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Col. L. Rev. 391, 413 n.68 (1963) (noting that "one can well distinguish laws which do not impose a morality on children, but which support the right of parents to deal with the morals of their children as they see fit")). The instant case, however, differs from those two; this ban removes indecent speech from the broadcast airwaves beyond the reach of adults and parents, essentially mandating the Commission's desired result. Once it becomes clear that, in this context, these two interests conflict, it is then important to determine which compelling interest takes precedence.
The FCC asserts that its primary interest is in facilitating parental supervision. See Tr. of Oral Argument at 55 (counsel for FCC stating "[w]e consistently stated that the primary interest is in aiding parents in supervising children"). The Commission is wise to assert its interest in facilitating parents as its primary interest, for this surely offers a firmer base for permissible regulation. As the Supreme Court stated in Ginsberg,
[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.
390 U.S. at 639 (quoting Prince v. Massachusetts , 321 U.S. 158, 166 (1944)).
However, if facilitating parental supervision means allowing parents to run the household in the manner they choose, then the FCC has preempted, not facilitated, parental control in enforcing section 16(a). While the Government's interest in protecting the well-being of children is undoubtedly compelling, when it conflicts with parental preferences and arguably treads on First Amendment rights, case law requires the Government to show some evidence of harm. It is easy to assume that there must be ill effects from exposing children, and especially young ones, to indecent material, but Supreme Court doctrine suggests that we must check our assumptions. And with respect to exposure to broadcast indecency and the impact on children, we have yet to unearth any ill effects.
The Supreme Court has not established what is required in terms of a showing of harm from exposure to indecency. Although harm was not at issue in Pacifica, one can read the plurality opinion there as assuming that the indecent monologue harmed children. Recent Supreme Court case law, however, suggests that more is required. In TBS, a plurality of the Court found that, while "the Government's asserted interests are important in the abstract," this did not mean that the regulations at issue in that case "in fact advance those interests." 114 S. Ct. at 2470. It continued, "[w]hen the Government defends a regulation on speech as a means to … prevent anticipated harms, it must do more than simply "posit the existence of the disease sought to be cured.' " Id. (quoting Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (D.C. Cir. 1985)). The Court was clear about the burdens on the Government: "It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Id. (citing Edenfield v. Fane, 113 S. Ct. 1792, 1798-99 (1993)); see also City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 496 (1986) ("[T]his Court "may not simply assume that the ordinance will always advance the asserted state interests sufficiently to justify its abridgment of expressive activity.' " (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 803 n.22 (1984))); Home Box Office, Inc. v. FCC, 567 F.2d 9, 36 (D.C. Cir. 1977) ("[A] regulation perfectly reasonable and appropriate in the face of a given problem may be highly capricious if that problem does not exist." (internal quotations omitted)). While the Court in TBS noted that Congress's predictive judgments are entitled to substantial deference, and that Congress is not required to make a record of the type an agency must make, it stressed that Congress's judgments are not insulated from "meaningful judicial review." 114 S. Ct. at 2471 (plurality). "On the contrary," the Court stated "we have stressed in First Amendment cases that the deference afforded to legislative findings does "not foreclose our independent judgment of the facts bearing on an issue of constitutional law.' " Id. (quoting Sable, 492 U.S. at 129 ).
In Edenfield, the Court struck down a state law prohibiting certified public accountants ("CPAs") from engaging in direct, in-person, uninvited solicitation. 113 S. Ct. 1798-1804. The Court held that, under the intermediate scrutiny prescribed for commercial speech under its decision in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980), a party seeking to uphold a restriction on speech carries the burden of justifying it which "is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Edenfield, 113 S. Ct. at 1800; see also League of Women Voters, 468 U.S. at 391 (finding that interest asserted by Government is not substantially advanced by statutory scheme, in part because risk that Government would seek to influence or pressure local stations was "speculative at best"). In Edenfield, the Court found that the state Board of Accountancy failed to present any studies that suggested that personal solicitation of prospective business clients by CPAs creates the dangers of fraud, overreaching, or compromised independence, the prevention of which the Board claimed as its interest. 113 S. Ct. at 1800. The Court noted that the only suggestion that the prevention of these evils was served by the ban was found in an affidavit containing conclusory statements. Id. at 1801. The evidence offered by the Commission in this case is no better. 30
In contending that the Government must protect children's well being, the Commission makes two arguments: first, it asserts that it may assume that indecent broadcast material harms children as a matter of law, citing Pacifica and Ginsberg; and, second, it suggests that the congressional sponsors considered evidence of the negative effects of television on young viewers. Enforcement Order, 8 F.C.C.R. at 706-07. The Commission's reliance on Pacifica does not help its case; the question of harm was not before that Court, and, as discussed earlier, the interest in the protection of children was not necessarily at odds with the interest in facilitating parental supervision in that case. Contrary to the Commission's assertion, the Court in Ginsberg did not presume harm as a matter of law. Rather, the Court struggled with the question of whether the legislature had shown evidence of a causal link between "obscenity" and "impairing the ethical and moral development" of youth. 390 U.S. at 641 -42. Under rationality review, the Court found that it could not state that the statute's regulation of obscenity had "no rational relation to the objective of safeguarding such minors from harm." 31 Id. at 643. In this case, the court is not reviewing regulations that deal with obscenity, nor is the court operating under rationality review.
The congressional sponsors do not offer any evidence of a link between exposure to indecency and harm to children. Five out of the eight articles cited address materials involving violence, not indecency, 32 and the remaining three discuss sexual materials but do not account for any harm. 33 There simply is no evidence that indecent broadcasts harm children, the absence of which stands in striking contrast, to the wealth of research conducted on the harmful effects of televised violence. 34 In oral argument, counsel for the Commission was unable to cite to any study that found a causal connection between exposure to indecent broadcast and psychological or other harm to children. Tr. of Oral Argument at 47-51. The Government has failed to be mindful of recent Supreme Court decisions, such as TBS and Edenfield, requiring the showing of evidence before asserting that its restrictions on speech will alleviate real harms. Where the interest of protecting children conflicts with parental preferences, and where this interest is asserted with no evidence of harm, it cannot withstand exacting scrutiny. Accordingly, the only interest the Commission asserts which is indeed compelling in this context is facilitating parental supervision.
C. Least Restrictive Means
It would be hard to object to some sort of regulation of indecency in broadcast as well as other media were it narrowly tailored to facilitate parental supervision of children's exposure to indecent material. But that is not what the Government has offered. As the Supreme Court has stated, "[i]t is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." Sable, 492 U.S. at 126 . The Government's chosen means, a ban on indecent speech from the hours of 6 a.m. to midnight (or until 10 p.m., the court-enforced zone), is not the least restrictive means to facilitate parental supervision.
Although unlikely, it is conceivable that such a ban on indecent programming could be the least restrictive means of facilitating parental control. For example, the Government might show that significant numbers of unsupervised children were watching or listening to programs containing indecency during the hours of the ban, that parents wished to limit what their children saw or heard, and that other means of controlling such exposure was considered and found to be ineffective. In this case, the Government offers no data on actual parental supervision, parental preferences, or on the effectiveness of parental supervision at different hours of the day and night. The Commission presents no program-specific data of what children watch, despite the existence of this data. See Tr. of Oral Argument at 46 (in response to the court's question, concerning whether more reliable data was available_"Could the Commission collect specific data about the number of children in the audience of particular programs or particular stations by age?"_Counsel for the FCC replied, "[i]t is available and advertisers rely on it"). Without this kind of data, the Commission's decision to ban indecent broadcasting during the extensive period here in question is not narrowly tailored to serve the asserted interest of facilitating parental supervision.
More telling perhaps than the lack of data on parental supervision and the programming children watch, is the lack of any consideration of other less speech-restrictive means in the Enforcement Order. The Commission simply asserted:
the broadcast indecency channeling program … most effectively serves the compelling interest of protecting children from exposure to indecent broadcast material without intruding excessively on the rights of those entitled to present or receive such material. We therefore believe that the means chosen is the least restrictive available for the broadcast medium and that other alternatives cannot effectively further this interest.
8 F.C.C.R. 711. To what other alternatives is the Commission referring? Absent from the Commission's decision is any discussion of an alternative method. And yet, at oral argument, counsel for the FCC assured the court that blocking technology, in which a chip placed in television sets prevents certain shows from being transmitted, is available. See Tr. of Oral Argument at 62. This device actually facilitates parental supervision in allowing parents to choose what programs or stations to block; and it is undoubtedly less speech-restrictive since parents assume control. 35 In the Alliance case heard on the same day as this one, the Commission presented another alternative, a segregate-and-scramble scheme of indecent programming on cable's leased access channels. Again, while this may not be the best means, surely "exacting scrutiny" requires some consideration of alternatives before finding that the means chosen is the least restrictive available. The Commission's Enforcement Order shows no consideration of alternatives when they clearly exist. Therefore, the Commission's ban on indecent broadcast cannot be seen as the least restrictive means to facilitate parental control.
In summary, the Government's ban on indecent speech is not the least restrictive means available to further the Commission's primary compelling interest of facilitating parental supervision of their children's exposure to indecent programming. 36 The Commission has failed to show that its secondary interest, protecting children from exposure to indecent broadcast, is compelling when it conflicts with the rights of parents to rear their children in the way they see fit and when it is advanced with no evidence of harm. In applying the same level of scrutiny to regulations of broadcast as we do to regulations of cable and other media, it seems clear that section 16(a) and the Enforcement Order violate the First Amendment.
III. Conclusion
The Constitution prohibits the Government from infringing on the free speech rights of its citizens without showing that a content-based regulation is the least restrictive means to further compelling interests. The Government's ban on indecent speech fails to pass exacting scrutiny. I would vacate the FCC's Enforcement Order and hold section 16(a) of the Public Telecommunications Act of 1992 unconstitutional.
Wald, Circuit Judge, with whom Rogers and Tatel, Circuit Judges, join, dissenting: "At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal." Turner Broadcasting System, Inc. v. FCC, 114 S. Ct. 2445, 2458 (1994). Very often this principle is not such an easy one to live up to or to live with. But presumptively, expression that many or even most of us find deeply reprehensible may not be, on that basis alone, proscribed. In R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2550 (1992), for instance, the Court held that racist fighting words could not be penalized on the basis of the hatred they expressed. Thus, whatever our collective interests in a "meritorious polity" and the moral development of the "people [who] govern it," Majority Opinion ("Maj. op.") at 17, governmental enforcement of those interests is radically constrained by the First Amendment's guarantee of freedom of expression.
This principle of free speech admits of limited exceptions, one of which is the permissibility of some government regulation of broadcast indecency. In FCC v. Pacifica Foundation, 438 U.S. 726, 729 , 750-51 (1978), for example, the Supreme Court concluded that the Federal Communications Commission could constitutionally penalize the daytime broadcast of a dialogue containing the repeated use of "filthy words." As Chief Judge Edwards notes, Pacifica 's result rested in large part on technological assumptions about the uniqueness of broadcast that have changed significantly in recent years, and the time may be ripe for the Court to recognize those changes by reevaluating its decision in that case. I believe, however, that the "safe harbor" proposed by the government here is unconstitutional even if the Court does not reconsider Pacifica.
Because indecent speech is fully within the ambit of First Amendment protection, the permissibility of government regulation of indecency depends crucially on the distinction between banning and channelling speech. Even Pacifica did not, by any stretch of the imagination, grant the government discretion to censor broadcast indecency however it pleased. Rather, Pacifica was "an emphatically narrow holding," Sable Communications v. FCC, 492 U.S. 115, 127 (1989), addressed solely to the Commission's single enforcement decision on review in that case and with the understanding that the Commission " "never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.' " Pacifica, 438 U.S. at 733 . In keeping with this emphasis on channelling, the Court noted in Sable that the "most obvious [ ]"_and salient_distinction between the telephone indecency ban at issue in that case and in Pacifica was that Pacifica "did not involve a total ban on broadcasting indecent material." 492 U.S. at 127 . As this court has held, an outright ban on broadcast indecency is unconstitutional. See Action for Children's Television v. FCC, 932 F.2d 1504, 1509 (D.C. Cir. 1991) (" ACT II "); see also Alliance for Community Media v. FCC, No. 93-1169, slip op. at 11 (D.C. Cir. June 6, 1995) ("If decisions of cable operators not to carry indecent programs … were treated as decisions of the government, the Commission and the United States would be hard put to defend the constitutionality of these provisions.").
Because the channelling of indecency effectuates a very delicate balance between the uncontestable First Amendment rights of adult viewers and the interests of parents (or society) in protecting immature children from indecent material_interests I discuss at greater length below_the design of the channelling is of utmost constitutional import. This the majority recognizes, in theory if not in fact: "The question, then, is what period will serve the compelling governmental interests without unduly infringing on the adult population's right to see and hear indecent material. " Maj. op. at 21 (emphasis added); see also Alliance for Community Media v. FCC, slip op. at 33 ("[I]n fashioning such a regulation, the government must strive to accommodate at least two competing interests: the interest in limiting children's exposure to indecency and the interest of adults in having access to such material."); id., dissenting op. of Judge Wald at 16 ("[A] regulation can be the most effective means of achieving a compelling interest and still run afoul of the First Amendment if it burdens substantial amounts of protected speech beyond what would be reasonably effective in serving the compelling interest.").
Thus, although the use of channelling as a regulatory tool is a distinct and largely uncharted area of First Amendment law, the majority and I are in agreement that its precision and care hold the constitutional passkey to permissible regulation. Like any content-based restriction on speech, the regulation of broadcast indecency must be narrowly tailored to a compelling government interest and it must avoid undue "infringe[ment] on the adult population's right to see and hear indecent material." Maj. op. at 21.
It is in implementing this balance that I part decisively with the majority. Any time-based ban on the airing of indecency intrudes substantially into the rights of adult viewers and listeners and places the government in the extraordinarily sensitive role of censor. By now, at least in the posture of the current case, it is probably too late to revisit our conclusion that the chill brought about by the Commission's open-textured definition of indecency is insufficiently great to invalidate the regulation. See Action for Children's Television v. FCC, 852 F.2d 1332, 1338-40 (D.C. Cir. 1988) (" ACT I "). Even a cursory glance at the Commission's enforcement policy to date, however, suggests that that chill is quite substantial, heightening the need for a meaningful safe harbor. 37
Because the Commission insists that indecency determinations must be made on a case-by-case basis and depend upon a multi-faceted consideration of the context of allegedly indecent material, broadcasters have next-to-no guidance in making complex judgment calls. Even an all clear signal in one case cannot be relied upon by broadcasters "unless both the substance of the material they aired and the context in which it was aired were substantially similar." Sagittarius Broadcasting Corp., Notice of Apparent Liability, 7 F.C.C.R. 6873, 6874 (1992). Thus, conscientious broadcasters and radio and television hosts seeking to steer clear of indecency face the herculean task of predicting on the basis of a series of hazy case-by-case determinations by the Commission which side of the line their program will fall on. When, for instance, radio station hosts read over the air from a Playboy Magazine interview of Jessica Hahn about her alleged rape by the Reverend Jim Bakker, they did not regard the material as indecent because it involved matters of obvious public concern. The Commission, however, issued a notice of apparent liability for a forfeiture of $2,000, explaining that, "while the newsworthy nature of broadcast material and its presentation in a serious, newsworthy manner would be relevant contextual considerations in an indecency determination, they are not, in themselves, dispositive factors." KSD-FM, Notice of Apparent Liability, 6 F.C.C.R. 3689, 3689 (1990). Newsworthiness, the Commission explained, is "simply one of many variables"; no single feature renders a work per se not indecent. Id. Although in reading the interview, the hosts had said that the account made them "sick," that it described rape rather than consensual sex, and that they regretted their earlier jokes about the incident, the Commission concluded, without elaboration, that the presentation was "pandering." Id. at 3689-90. As this one case exemplifies so well, in enforcing the indecency regulations the Commission takes upon itself a delicate and inevitably subjective role of drawing fine lines between "serious" and "pandering" presentations. And even a "serious" presentation of newsworthy material is emphatically not shielded from liability. This incident and the Commission's discussion of it suggests that enforcement of its indecency regulation involves both government- and self-censorship of much material that presents far harder choices than the glaring examples of smut emphasized to such rhetorical effect by the majority. Maj. op. at 6, 12.
Because of this potential for significant incursion into the First Amendment rights of adult viewers and listeners during the hours of the day and evening when the ban is in effect, it is particularly important that the channelling "balance" struck by the government preserve a meaningful place on the spectrum for adult rights to hear and view controversial or graphic nonobscene material_that airing of such material not be restricted to a safe harbor that is in reality a ship's graveyard. Thus, I cannot agree with the majority that determining the perimeter of the safe harbor can be relegated to the category of discretionary line-drawing akin to the distance from polls at which electioneering is allowed and so largely shielded from judicial review. Maj. op. at 25. God or the Devil (pick your figure of speech) is in the details. Because the safe harbor constitutes the exclusive repository for the substantial First Amendment rights of adults, its boundaries are of "constitutional dimension." Cf. Burson v. Freeman, 112 S. Ct. 1848, 1857 (1992). For that reason, it cannot be beyond the competence of this court to ensure that the safe harbor ensures meaningful as opposed to pro forma accommodation of adult rights.
On the basis of the information given us by the Commission and that was before Congress, it is impossible to conclude that the midnight to 6 a.m. safe harbor strikes a constitutionally acceptable balance. Recent Supreme Court cases have made clear that "[w]hen the Government defends a regulation on speech as a means to … prevent anticipated harms, it must do more than simply posit the existence of the disease sought to be cured. It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner, 114 S. Ct. at 2470 (internal quotations omitted). In light of so exacting a standard, one must, from the very outset, entertain grave misgivings about the designation of the midnight to 6 a.m. boundaries. 38 Without a clear exposition of the scope of the government's interest, we cannot know whether its means are tailored to be the least restrictive available. See Edenfield v. Fane, 113 S. Ct. 1792, 1798 (1993) ("the extent of the restriction on protected speech [must be] in reasonable proportion to the interests served"). Yet, in the record before Congress, there is as little evidence regarding the magnitude of psychological or moral harm, if any, to children and teenagers who see and hear indecency as there is that such exposure even occurs inside the current safe harbor. In the six years that the safe harbor has been operating from 8 p.m. to 6 a.m., and the prior years in which it covered 10 p.m. to 6 a.m., the government has adduced no concrete evidence of real or even potential harm suffered by the exposure of children to indecent material. We have not a scintilla of evidence as to how many allegedly indecent programs have been either aired or seen or heard by children inside or outside the safe harbor. Thus, even if the government were allowed to presume harm from mere exposure to indecency, surely it cannot progressively constrict the safe harbor in the absence of any indication that the presumed harm is even occurring under the existing regime.
Even if the government were acting on a tabula rasa, rather than on the basis of years of experience with a less restrictive ban, its delineation of the midnight to 6 a.m. safe harbor would be unjustifiable. I agree with Chief Judge Edwards that the primary government interest here must be in facilitating parental supervision of children. Although the Supreme Court has recognized the government's own interest in protecting children from exposure to indecency, it has never identified this interest as one that could supersede the parental interest. The government's protective responsibility in a matter of morals is, as the majority recognizes, "complementary" to that of parents. Maj. op. at 17. Thus, although the majority speaks broadly of the government's independent interest in shielding children from indecency, Maj. op. at 15-16, it recognizes_as it must_that this interest is circumscribed; absent neglect or abuse, it cannot rise above the parental interest in childrearing. Maj. op. at 18 (parents who wish may expose their children to indecency). In the end, the majority admits the government's own interest in children is limited to "shielding minors from being exposed to indecent speech by persons other than a parent." Maj. op. at 18.
The majority is right: the government's primary if not exclusive interest is in "shielding minors from being exposed to indecent speech by persons other than a parent." Given the significant First Amendment rights of adults at stake, moreover, the government has a constitutional responsibility to key its response to the presumed harm from indecency to facilitating parental control, rather than to government censorship per se. When most parents are presumably able to supervise their children, adult viewers should have access to the speech to which they are entitled. See Pacifica Foundation v. FCC, 556 F.2d 9, 36 (D.C. Cir. 1977) (Leventhal, J., dissenting) ("A ruling expanding the zone of the broadcastable to adult levels might apply when the time of broadcast is such that the great preponderance of children are subject to parental control.").
Because the government can pursue whatever legitimate interests it has in protecting children by facilitating parental control, I do not believe that it can impose a valid ban during any hours it pleases solely because some children are in the audience. Nor do I believe that we can throw up our hands at the assumed impossibility of parental supervision simply because large numbers of children have television sets in their own room. Either or both of these excuses would justify a 24-hour ban as easily as the current 18-hour ban. Reasoning along these lines totally ignores the adult First Amendment interest that the majority purportedly recognizes and, effectively, gives the government unharnessed power to censor.
Instead, the scope of any safe harbor can only be responsibly justified in the terms that the government emphasized at oral argument. Counsel for the government maintained that its primary interest is in assisting parents to control their children's viewing and that the function of a safe harbor is to support this interest by identifying for parents a reasonable time period during which they must exert their supervisory function. 39 A safe harbor, so tailored, may well be a constitutionally acceptable means of furthering society's interest in protecting children. 40 Advancement of this justification, however, requires careful tailoring of a sort completely neglected by the government. Though it may be entirely logical for the government to assist parents by purging the airwaves of indecency during certain hours when parental supervision typically is at a low ebb, the government should be put to the task of demonstrating that the banned hours are based on a showing that these are the times of preponderant children viewing and the times when parents are otherwise absorbed in work in or out of the home. As the initial panel opinion explained, "[t]he Commission[ ] … appears to assume that, regardless of the time of day or night, parents cannot effectively supervise their children's television or radio habits. Accordingly, the government has not adduced any evidence suggesting that the effectiveness of parental supervision varies by time of day or night, or that the particular safe harbor from midnight to 6 a.m. was crafted to assist parents at specific times when they especially require the government's help to supervise their children." Action for Children's Television v. FCC, 11 F.3d 170, 178 (D.C. Cir. 1993) (" ACT III ").
In constructing a safe harbor the government needs to give more careful consideration to those hours in the evening when parental control could reasonably be relied upon in lieu of censorship to protect children. It is only in this manner that the government can genuinely strike the delicate balance between adult freedoms of expression and society's interest in shielding children from indecency and a truly safe harbor can be crafted that "serve[s] the compelling governmental interests without unduly infringing on the adult population's right to see and hear indecent material." Maj. op. at 21.
Despite the majority's valiant effort to extract evidence for the government's position from the sparse record before us, the pickings are too slim for constitutional legitimacy. See Turner, 114 S. Ct. at 2470, 2471 (rejecting record that included "unusually detailed statutory findings," id. at 2461, as insufficiently detailed to survive intermediate scrutiny under the First Amendment). There is no evidence at all of psychological harm from exposure to indecent programs aired inside the current safe harbor. There is no evidence either that parents cannot supervise their children in those safe harbor hours or that "grazing" is leading to any significant viewing of indecency. 41 Finally, the imminence of "V-chip" technology to enable parental control of all violence- and indecency-viewing suggests that a draconian ban from 6 a.m. to midnight is decidedly premature.
In spite of this evidentiary black hole, we have a broadside ban on vaguely defined indecency during all hours when most working people are awake, with a small bow to prior judicial rulings that a complete ban is unconstitutional, but no attempt to fashion an accommodation between the First Amendment and family values. The net effect of the majority's decision is a gratuitous grant of power allowing casual and lightly reviewed administrative decisionmaking about fundamental liberties. I respectfully dissent.

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