UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
On Petition for Review from the Federal Communications Commission
On Remand from the Supreme Court of the United States
FOX TELEVISION STATIONS, INC., et al.,
FEDERAL COMMUNICATIONS COMMISSION,
NBC UNIVERSAL, INC., et al.,
BRIEF OF AMICI CURIAE
"[I]t is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance." Roth v. United States, 354 U.S. 476, 483 (1957). Amicicontend that society has a strong and abiding interest, firmly grounded in the First Amendment, in maintaining standards of decency. This interest extends especially to the preservation of standards of decency with respect to the materials broadcast into the sanctuary of our homes. This Honorable Court should not assume that the public clamors for more indecency, as the Petitioners and its supporters do. There is no evidence whatsoever that the Federal Communications Commission has been inundated with complaints of the lack of indecent programs on broadcast TV or radio. Rock singer Bono has no more right to shout, "f***ing brilliant" in the homes of unsuspecting American families than we would have in his. He made himself an uninvited guest of those families that believed honorees at the Grammys would respect the norms of civilized discourse on broadcast television. Similarly, the indecent comments of singer/actress Cher and actress Nicole Richie are out of place in the homes of those families who thought that network television represented a safe haven for family viewing. Neither these personalities nor their network sponsors have rights under the U.S. Constitution greater than the rights of the homeowners they invaded over the public airwaves.
Over the past fifty years, some courts, in the name of expanding free speech rights, have ignored the societal interest in decency, the government's interest in the protection of children from indecent content, and the right to be left alone, free from the constant barrage of indecent communications. This, coupled with lax enforcement by the Federal Communications Commission of indecency law until earlier this decade, has enabled the purveyors of indecency to overrun the rights of decent Americans, who are now bombarded by degrading, indecent, coarse, and sexually charged content on an almost round-the-clock basis.
Emboldened by the success of their counterparts in other forms of media, broadcasters have been pushing the envelope by gradually inserting more and more indecent content on an unsuspecting public. Like the frog in the kettle, society is being coarsened while broadcasters have, in the words of the late Senator, Daniel Patrick Moynihan, "defined deviancy down." DANIEL PATRICK MOYNIHAN, Defining Deviancy Down, THE AMERICAN SCHOLAR 17 (Winter 1993), cited in ROBERT BORK, SLOUCHING TOWARD GOMORRAH 3 (New York: Regan Books 1997). The communications of broadcasters over the public airwaves have often radically diverged from the interests of the public itself that broadcasters are required to serve. Broadcasters now seek to invalidate all regulation of indecency on the public airwaves, leaving no safe haven whatsoever to the majority of Americans who desire decent programming.
Amici contend that it is critical to recognize the very real and vital societal interests in maintaining standards of decency, in conjunction with individual free speech rights. The FCC's revised guidance with respect to what constitutes indecency does exactly this and it does so well within the confines of the First Amendment. Further, it logically follows the very type of context-based analysis endorsed by the United States Supreme Court in FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
The unproven claims of broadcast media that the FCC's action is uneven, arbitrary and capricious, do not provide sufficient reason to cavalierly toss aside the protection given to decent individuals under United States Constitution and to ignore valid precedent. Amici urge this Court to follow that precedent and find that the FCC's action is a constitutionally permitted application of 18 U.S.C. § 1464.
American broadcast TV and radio are meant to be available to all. If the court opens the floodgates to so-called "adult material" at all hours on broadcast TV and radio in the name of the First Amendment, then TV and radio will be open only to adults, not children, and, at that, only to adults who desire more indecent material. Television viewers will be forced to listen to indecent language. Profanity and sex will dominate daytime radio. Nothing in the First Amendment requires this result.