06-1760-ag
(
L
)
IN THE
United States Court of Appeals
FOR THE SECOND CIRCUIT
FOX TELEVISION STATIONS, INC., CBS BROADCASTING INC., 
WLS TELEVISION, INC., KTRK TELEVISION, INC., 
KMBC HEARST-ARGYLE TELEVISION, INC., ABC INC.,
Petitioners,
—against—
FEDERAL COMMUNICATIONS COMMISSION, UNITED STATES OF AMERICA,
Respondents,
NBC UNIVERSAL, INC., NBC TELEMUNDO LICENSE CO., 
NBC TELEVISION AFFILIATES, FBC TELEVISION AFFILIATES ASSOCIATION,
CBS TELEVISION NETWORK AFFILIATES, CENTER FOR THE
CREATIVE COMMUNITY, INC., doing business as Center for Creative 
Voices in Media, Inc., ABC TELEVISION AFFILIATES ASSOCIATION,
Intervenors.
ON PETITIONS FOR REVIEW OF ORDERS OF THE
FEDERAL COMMUNICATIONS COMMISSION
BRIEF OF AMICUS CURIAE MORALITY IN MEDIA, INC., 
IN SUPPORT OF RESPONDENTS
ROBERT W. PETERS
ROBIN S. WHITEHEAD
MORALITY IN MEDIA, INC.
475 Riverside Drive
New York, New York 10115
(212) 870-3222
Attorneys for Amicus Curiae
06-2750-ag
(
Con
)
, 06-5358-ag
(
Con
)
d
CORPORATE DISCLOSURE STATEMENT 
 
Pursuant to FRAP Rule 26.1 Amicus organization states that it is a not for 
profit corporation which does not issue stock and which is not a subsidiary or 
affiliate of any publicly owned corporation. 
 
TABLE OF CONTENTS 
 
TABLE OF AUTHORITIES……………………………………………………ii 
 
AMICUS STATEMENT OF IDENTITY, INTEREST AND 
AUTHORITY TO FILE………………………………………………………..vii 
 
ARGUMENT……………………………………………………………………1 
 
I. TO ESTABLISH SCIENTER, THE FCC IS NOT REQUIRED TO 
SHOW THAT A BROADCASTER HAS ACTUAL KNOWLEDGE OF 
AND INTENT TO BROADCAST INDECENT CONTENT…………....1 
 
II.  IN FCC V. PACIFICA FOUNDATION, THE SUPREME COURT DID 
NOT HOLD THAT AN ‘OCCASIONAL EXPLETIVE’ COULD 
NEVER BE ACTIONABLE...……………………………………………7 
  
III.  CHILDREN DO NOT NEED TO HEAR A CURSE WORD REPEATED 
IN ORDER TO ENLARGE THEIR VOCABULARY…..........................8 
 
IV. NUISANCE RATIONALE PROVIDES A ‘MIDDLE ROAD’ 
BETWEEN BANNING ALL EXPLETIVES AND ALLOWING AT 
LEAST ONE IN EVERY BROADCAST PROGRAM, REGARDLESS 
OF CIRCUMSTANCES ………………………………………………..10 
  
V. IN PACIFICA, NEITHER THE SUPREME COURT NOR THE FCC 
DETERMINED THAT ONLY LITERAL USES OF EXPLETIVES 
WERE ACTIONABLE …………………………………………………15 
 
VI. THE FCC’S DEFINITION OF “INDECENT’ IS NOT VAGUE……....17 
 
VII. FCC COMMISSIONERS ARE COMPETENT TO ASCERTAIN 
‘CONTEMPORY COMMUNITY STANDARDS’ FOR THE 
BROADCAST MEDIA……………………………………………........21 
 
VIII. BROADCAST IS STILL ‘UNIQUELY PERVASIVE’………...............23 
 
IX. THE HOME IS STILL A SPECIAL PLACE ………..............................24 
 
X. V-CHIP RATINGS SYSTEM HAS BEEN A FAILURE ………...........26 
 ii
CONCLUSION……….......................................................................................38 
TABLE OF AUTHORITIES 
 
CASES 
 
Action for Children’s Television v. FCC, 852 F.2d 1332 (1988) …………..18,19 
 
Cohen v. California, 403 U.S. 15 (1971)…………………………………….8,14 
 
Denver Area Ed. Telecom. Consortium, Inc. v. FCC, 
518 U.S. 727 (1996)……………………………….......................................19,20 
 
Dial Information Services v. Thornburgh, 938 F.2d 1535 (1991), 
cert. den., 502 U.S. 1072 (1992)………………………….……………………18 
 
FCC v. Pacifica Foundation, 438 U.S. 726 (1978)………………………. passim 
 
Fox Television Stations v. FCC, 489 F.3d 444 (2d Cir. 2007)………........8,12,23 
 
Frisby v. Schultz, 487 U.S. 474 (1988)…………………………………………25 
 
Ginsberg v. New York, 390 U.S. 629 (1968)…………………………………..3,4 
 
Hamling v. U.S., 418 U.S. 87 (1974)……………………………………….4,6,21 
 
Hess v. Indiana, 414 U.S. 105 (1973)…………….……………………………14 
 
Kwiatkowski v. Merrill Lynch, A-2270-06 (N.J. Super. Ct. App. Div. 2008), 
cert. den., 962 A.2d 530 (N.J. 2008)…………………………………………...26 
 
Miami v. Florida Literary Distributing Corp., 486 So.2d 569 (Fla. 1986), cert. 
den., 479 U.S. 872 (1986)……………………………………………................22 
 
Michigan v. Bennis, 527 N.W.2d 483 (Mich. 1994), 
aff’d., Bennis v. Michigan, 516 U.S. 442 (1996)……………………………….14 
 
Miller v. California, 413 U.S. 15 (1973)……………………………………….21 
 
Mishkin v. New York, 383 U.S. 502 (1966)……………………………………...3 
 iii
Ocheltree v. Scollon Productions, 335 F.3d 325 (4
th
 Cir. 2003)……………….25 
 
Petrosino v. Bell Atlantic, 385 F.3d 210 (2d Cir. 2004)………………………..25 
 
Reid v. O’Leary. 1996 U.S. Dist. LEXIS 10627 (D.D.C. July 15, 1996)………26 
 
Reno v. ACLU, 521 U.S. 824 (1997)………………………………………..19,20 
 
Ripplinger v. Collins, 868 F.2d 1043 (9th Cir. 1989)…………...……………….6 
 
Rosen v. United States, 161 U.S. 29 (1896)………………………………….. 2,4 
 
Rosenfeld v. New Jersey, 408 U.S. 901(1972)…………………………………14 
 
Roth v. United States, 354 U.S. 476 (1957)…………………………………….21 
 
Smith v. California, 361 U.S. 147 (1959)……………………………………...2,4 
 
Smith v. United States, 431 U.S. 291 (1977)…………………………………...21 
 
Suders v. Easton, 325 F.3d 432 (3rd Cir. 2003), rev’d on other grounds, 
Pennsylvania State Police v. Suders, 542 U.S. 129 (2004)…………………….25 
 
Taylor v. Metzger, 706 A.2d 685 (N.J. 1998)…………………………………..26 
 
Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997), 
cert. den., 522 U.S. 997 (1997)…………………………………………….......25 
 
United States v. Battista, 664 F.2d 237 (6th Cir. 1981)…………………………6 
 
United States v. Book Mart, 490 F.2d 73 (5th Cir. 1974)…………………….....6 
 
United States v. Groner, 494 F.2d 499 (5th Cir. 1974), 
cert. den., 419 U.S. 1010 (1974)…………………………………………….......6 
 
United States v. Hill, 500 F.2d 733 (5th Cir. 1974),  
cert. den., 420 U.S. 952 (1975)………………………………………………….6 
 
United States v. Playboy Entertainment Group, 529 U.S. 803 (2000)…………23 
 iv
United States v. Thevis, 490 F.2d 76 (5th Cir. 1974), 
cert. den., 419 U.S. 801 (1974)………………………………………………….6 
 
Young v. Abrams, 698 F.2d 131 (2d Cir. 1983)………………………………….5 
 
STATUTES 
 
N.Y. Penal Law § 235.05, .10(a)………………………………………………..5 
Radio Act of 1927……………………………………………………….10,11,23 
Communications Act of 1934………………………………………………….10 
18 U.S.C. 1462…………………………………………………………….........6 
18 U.S.C. 1464………………………………………………………….........1,11 
18 U.S.C. 1465…………………………………………………………..............6 
47 U.S.C. 223……………………………………………………………….19,20 
47 U.S.C. 223 (b)(c)…..………………………………………………………..18 
47 U.S.C. 532(h)....……………………………………………………………..19 
 
ADMINISTRATIVE DECISIONS 
 
Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. 1464 
& Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999, 
8008-09 (2001)…………………………………………………………………20 
 
In the Matter of Complaints Ag. Various Broadcast Licensees Regarding Their 
Airing of the “Golden Globe Awards” Program, 18 FCC Rcd.19859……..15,16 
 
NEWSPAPER ARTICLES 
 
A.K. Blair, “Harassment Law: More Confused Than Ever,” Wall Street Journal, 
July, 8 1998…………………………………………………………………….20 
 
Toni Fitzgerald, “Two profs beat up on kids TV ratings: Study finds more 
physical aggression in TV-Y & TV-7,” Media Life Magazine, Mar. 6, 2009….27 
 
Bill McConnell, “Seven provisionally dirty words?  Damn!,” Broadcasting & 
Cable, July 8, 2002………………………………………………………………8 
 
Ann Oldenburg, “Cussing on ‘Deadwood’ Sets Tongues A-Wagging,” USA 
Today, May 2, 2004…………………………………………………………….12 
 v
Ann Marie Squeo, “Firing of ‘Love Sponge’ Signals Cleanup of Shock Radio,” 
Wall Street Journal, Feb. 25, 2004………………………………………………8 
 
News Release, “Few Parents Use V-Chip to Block TV Sex and Violence…” 
Kaiser Family Foundation, 2001……………………………………………….26 
 
News Release, “Support for Tougher Indecency Measures,” Pew Research 
Center for People & the Press Poll, Apr. 19, 2005………………………..........10 
 
Press Release, “PTC Finds Increase in Harsh Profanity on TV,” Parents 
Television Council, Oct. 29, 2008……………………………………………...15 
 
Press Release, “Parents in New Survey Report Limited Success Teaching Their 
Kids ‘Absolutely Essential’ Values,” Public Agenda, Oct. 2, 2002……………10 
 
Special Report, “The Ratings Sham II: TV Executives Still Hiding Behind a  
System that Doesn’t Work,” Parents Television Council, Apr. 16, 2007……...27 
 
“Attorneys Offer Tips on Investigating Charges of Sexual Harassment,” 
U.S.L.W., Aug.18, 1998…………………...……………………………………20 
 
“Curioser and Curioser,” Broadcasting & Cable,  July 8, 2002……………….16 
 
JOURNALS 
 
E.L. Carter, et al., “Broadcast Profanity and the ‘Right to be let alone’: Can the 
FCC regulate non-indecent fleeting expletives…?” 
31 Hastings Comm. & Ent. L.J. 1(2008)……………………………………….14 
 
Steve Craig, "How America Adopted Radio: Demographic Differences in Set 
Ownership…in 1930-1950 U.S. Censuses." 
Journal of Broadcasting & Electronic Media, Vol. 48, No. 2 (2004)…………23 
 
Barbara S. Kaye & Barry S. Saplosky, “Offensive Language in Prime-Time TV: 
Four Years After Television Age & Content Ratings.” 
Journal of Broadcasting & Electronic Media, Dec. 2004…………………..12,13 
 
“The Origins of the Ban on Obscene or Profane Language of the Radio Act of 
1927,” Journalism and Mass Communication Monographs, Feb. 1995, 
Association for Education in Journalism and Mass Communication…………..11 
 vi
 
WEBSITES 
 
“It’s A Whabbit” at http://www.talaris.org/spotlight_wabbit.htm........................9 
“Bring the learning fun of Sesame Street into your classroom” at 
http://www.pbs.org/teachers/earlychildhood/articles/sesamestreet.html..............9 
Commissioners’ Biographies at http://www.fcc.gov...........................................22  
Time Poll at 
http://www.time.com/time/covers/1101050328/photoessay/poll1.html.............22  
 
OTHER AUTHORITIES 
 
Brief of Petitioner FOX Television Stations, Inc., Sept. 16, 2009……………1,22 
 
Brief of Amici Curiae Former FCC Officials (quoting FCC Chairman Charles D. 
Ferris, Speech to New England Broadcasting Assoc., Boston, MA, July 21, 
1978)……………………………………………………………………………..8 
 
Citizen’s Complaint Against Pacifica Foundation Station WBAI (FM), New 
York, NY, 56 FCC2d 94, Released Feb. 21, 1975……………………………..17 
 
Executive Summary, “The Blue Tube: Foul Language on Prime-Time 
Network,” Parents Television Council, Sept. 15, 2003………………………...13  
 
Kaiser Family Foundation Survey, “Parents, Media and Public Policy,” 
Sept. 23, 2004…………………………………………………………………..26 
 
Kaiser Family Foundation, “Parents, Children & Media,” June 2007……….9,26 
 
Opinion Poll by Wirthlin Worldwide for Morality in Media, Inc. (1998)..……26 
 
“Navigating the Children’s Media Landscape: A Parent’s and Caregiver’s 
Guide,” By American Institutes for Research, Prepared for Cable in the 
Classroom and National PTA, Apr. 4, 2004……………………………………24 
 vii
 
 
INTEREST OF AMICUS CURIAE 
Morality in Media, Inc. (MIM), as amicus curiae, files this brief in 
support of the Respondents in this case, which is before this Court on appeal 
from an Order of the Federal Communications Commission.  The written 
consents of the parties to the filing of this brief have been requested and all 
parties have consented thereto in writing. 
 MIM has an interest in this case as a New York, not-for-profit, 
interfaith, charitable corporation, organized in 1968 for the purpose of 
combating the distribution of obscene material in the U.S. and upholding 
decency standards in the media.  Now national in scope, this organization has 
affiliates and chapters in various states.  Its Board of Directors and Advisory 
Board are composed of prominent businessmen, clergy, and civic leaders.  The 
Founder and President of MIM (until his death in 1985) was Reverend Morton 
A. Hill, S.J.  In 1968, Father Hill was appointed to the President's Commission 
on Obscenity and Pornography.  He and Dr. Winfrey C. Link produced the 
"Hill-Link Minority Report of the Presidential Commission on Obscenity and 
Pornography," which was cited by the Supreme Court in Kaplan v. California, 
413 U.S. 115, 120 n.4 (1973) and in Paris Adult Theatre I v. Slaton, 413 U.S. 
49, 58 notes 7 and 8 (1973). 
 viii
MIM focuses on legal and law enforcement issues related to obscenity, 
child pornography, the broadcasting and other mass communication of indecent 
material, and the display and dissemination to minors of materials which are 
harmful to minors.  MIM has filed friend of the court briefs involving First 
Amendment issues, including: FCC v. Pacifica Foundation, 438 U.S. 726 
(1978); New York v. Ferber, 458 U.S. 747 (1982); Brockett v. Spokane Arcades, 
Inc., 472 U.S. 491 (1985); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 
(1989); Sable Communications v. FCC, 492 U.S. 115 (1989); Denver Area 
Consortium v. FCC, 518 U.S. 727 (1996); Reno v. ACLU, 521 U.S. 844 (1997); 
National Endowment for the Arts v. Finley, 524 U.S. 569 (1998); State v. 
Harrold, 593 N.W.2d 299 (Neb. 1999); City of Erie v. Pap's A.M., 529 U.S. 277 
(2000); United States v. Playboy, 529 U.S. 803 (2000); City News and Novelty, 
Inc. v. City of Waukesha, 531 U.S. 278 (2001); Ashcroft v. Free Speech 
Coalition, 535 U.S. 234 (2002); City of Los Angeles v. Alameda Books, Inc. and 
Highland Books, Inc., 535 U.S. 425 (2002); Ashcroft v. American Civil Liberties 
Union, et al., 535 U.S. 564 (2002), and 542 U.S. 656, 124 S. Ct. 2783 (2004). 
and United States v. Williams, 128 S. Ct. 1830 (2008).  MIM has also 
filed a friend of the court brief in Fox Television Stations, et al., v. FCC, 489 
F.3d 444 (2d Cir. 2007); and CBS Corp, et al., v. FCC, 2008 U.S. App. LEXIS 
16692 (3rd Cir. 2008). 
 ix
Amicus files this brief in support of the Respondents because it believes 
its brief contains relevant matter and alternative arguments that may not be 
presented to the Court by the parties.  
 
 1 
ARGUMENT 
 
I. TO ESTABLISH SCIENTER, THE FCC IS NOT REQUIRED TO 
SHOW THAT A BROADCASTER HAS ACTUAL KNOWLEDGE 
OF AND INTENT TO BROADCAST INDECENT CONTENT 
 
Petitioner, Fox Television Stations, Inc., argues in its Petition for Review 
of Orders of the FCC that “18 U.S.C. 1464 clearly requires scienter—that is, 
the broadcaster must have knowledge of and intent to broadcast the specific 
content that is alleged to be indecent—not just the intent to broadcast the 
program regardless of the actual content.” Brief of Petitioner, p.22  Amicus 
disagrees and argues that the requirement of scienter in this case can be 
established by showing through direct or circumstantial evidence, that the 
Petitioner had knowledge, reason to know, an awareness, or notice of the 
general character or nature of the broadcast’s content.  
Petitioner bases its interpretation of the requisite scienter on various 
criminal mens rea and obscenity cases.  As a general principle of law, the 
government must show that a defendant had a general knowledge or awareness 
of the overall character of the sexually explicit content of the item involved in 
order to show the requisite scienter.  It is not required however, that the 
prosecution shows a direct knowledge of the precise contents of the material, or 
even that a defendant had ever personally viewed the material.  If it is shown 
that a defendant, for instance in an obscenity case, was aware of its overall 
 2 
character, such knowledge or notice is constitutionally sufficient to sustain a 
conviction. 
The Supreme Court beginning with the case of Rosen v. United States, 
161 U.S. 29 (1896), established that a defendant does not have to be aware of 
the legal status of the material but rather it must only be shown that the 
individual had “notice” of the material's contents.  The Court at 41 stated: 
The inquiry under the statute is whether the paper charged to have been 
obscene, lewd, and lascivious was in fact of that character, and if it was 
of that character and was deposited in the mail by one who knew or had 
notice, at the time, of its contents, the offense is complete, although the 
defendant himself did not regard the paper as one that the statute forbade 
to be carried in the mails.  [Emphasis added.] 
 
The only scienter requirement ever ruled unconstitutional by the 
Supreme Court was the complete absence of scienter, as discussed in the case 
of Smith v. California, 361 U.S. 147 (1959).  In the Smith case, the appellant 
was the proprietor of a bookstore.  The question before the Court was whether 
the City of Los Angeles could impose “strict liability” for the distribution of 
obscene material, with no scienter requirement whatsoever.  The Court held that 
the complete absence of a scienter requirement was not permissible.  The Court 
in Smith, at 154, also stated that circumstantial evidence could show the 
required awareness: 
Eyewitness testimony of a bookseller's perusal of a book hardly need be a 
necessary element in proving his awareness of its contents.  The 
 3 
circumstances may warrant the inference that he was aware of what a 
book contained, despite his denial.  [Emphasis added.]  
 
In Mishkin v. New York, 383 U.S. 502 (1966), the Supreme Court ruled 
on the constitutionality of the scienter definition of the New York obscenity 
statute, and whether proof of scienter in that case was adequate.  The Court, at 
510, accepted the definition of scienter as given to the statute by the New York 
Court of Appeals, which had defined the element of scienter as follows: 
A reading of the [New York] statute … as a whole clearly indicates that 
only those who are in some manner aware of the character of the 
material they attempt to distribute should be punished.  It is not innocent 
but calculated purveyance of filth which is exorcised . . . . [Emphasis 
added.] 
 
The Court held that this definition of scienter “fully meets the demands 
of the Constitution.”  Mishkin, at 511. 
The Mishkin holding was reaffirmed in Ginsberg v. New York, 390 U.S. 
629 (1968) where the Court was again faced with the sufficiency of a scienter 
requirement in another New York statute, that proscribed the “knowing” 
distribution of obscene materials to minors.  “Knowingly” was defined in the 
statute as “knowledge” of, or “reason to know” of, the character and content of 
the material.  Citing Mishkin, and the New York Court of Appeals’ construction 
of the other similar statutory language, the Court rejected the challenge to the 
scienter provision.  
 4 
 In Hamling v. United States, 418 U.S. 87 (1974), the Court was faced 
with determining the constitutionality of the scienter element in a case 
involving convictions for mailing obscene materials in violation of federal law.  
In Hamling, the trial court charged the jury on scienter stating that the 
government must prove the defendants “knew the envelopes and packages 
containing the subject materials were mailed or placed...in Interstate 
Commerce, and ... that they had knowledge of the character of the materials.”  
Hamling, at 119-20 (Emphasis added).  The Court at 120-21 upheld the 
following instruction: 
Petitioners contend that this instruction was improper and that proof of 
scienter in obscenity prosecutions requires, “at the very least, proof both 
of knowledge of the contents of the material and awareness of the 
obscene character of the material.”... In support of this contention, 
petitioners urge, as they must, that we overrule our prior decision in 
Rosen v. United States, 161 U.S. 29 (1896).  We decline that invitation, 
and hold that the District Court in this case properly instructed the jury 
on the question of scienter. [Emphasis added.] 
 
Thereafter in Hamling, at 123, the Court summarized its rulings on 
scienter in Smith, Mishkin, and Ginsberg, supra: 
It is constitutionally sufficient that the prosecution show that a defendant 
had knowledge of the contents of the material he distributed, and that he 
knew the character and nature of the materials.  To require proof of a 
defendant's knowledge of the legal status of the materials would permit 
the defendant to avoid prosecution by simply claiming that he had not 
brushed up on the law. 
 
 
 5 
These Supreme Court cases on the issue of scienter in obscenity cases 
provide that it is constitutionally sufficient for the prosecution to prove scienter 
on the part of a defendant by showing, by direct or circumstantial evidence, that 
the defendant has knowledge, reason to know, an awareness, or notice of the 
general character or nature of the material’s content. 
In Young v. Abrams, 698 F.2d 131 (2d Cir. 1983), the appellant was 
convicted of obscenity in violation of N.Y. Penal Law § 235.05.  Appellant 
argued that there was insufficient evidence to prove beyond a reasonable doubt 
that he knew the content and character of the film and that the presumption in § 
235.10(a), that one who promoted obscene materials in the course of his 
business was presumed to know the content and character of the material, was 
unconstitutional.  This Court, at 134, disagreed stating, 
…a person who promotes obscene material or possesses obscene material 
with intent to promote it in the course of his business is presumed to do 
so with knowledge of its content and character.  In other words, if a 
person promotes that which you find to be obscene, the law says he is 
presumed to do that knowing what's in it.  Again, the law permits that, 
but does not require you to presume or infer knowledge in some 
circumstances. That means after a consideration of all of the evidence in 
this case, you may presume or infer from the defendants promotion of 
obscene material or their possession of obscene material with intent to 
promote it in the course of this business, that they promoted it or 
possessed it with intent to promote it with knowledge of its content and 
character, or you may reject such presumption or inference. [Emphasis 
added.] 
 
 6 
Other federal courts define a sufficient scienter requirement as 
knowledge or notice of “character” or “nature.”  Ripplinger v. Collins, 868 F.2d 
1043, at 1055 (9th Cir. 1989) (Citing Hamling, the Court approved a jury 
instruction requiring only knowledge of the character of the material, and not of 
its specific contents); United States v. Battista, 664 F.2d 237, at 242 (6th Cir. 
1981) (The scienter required is that appellants know the general nature and 
character of the film.); United States v. Hill, 500 F.2d 733, at 740 (5th Cir. 
1974), cert. den., 420 U.S. 952 (1975) (The evidence was sufficient for the jury 
to determine that the defendant had general knowledge that the material is 
sexually oriented, the only scienter required for conviction under 18 U.S.C. 
1462 or 1465.); United States v. Thevis, 490 F.2d 76, at 77 (5th Cir. 1974), cert. 
den., 419 U.S. 801 (1974) (Defendants’ knowledge of the materials’ sexual 
orientation is sufficient.); United States v. Book Mart, 490 F.2d 73, at 75 (5th 
Cir. 1974) (Scienter as to the exact content of the material transported, rather 
than a general knowledge that the material is sexually oriented, is not required 
to uphold a conviction under 18 U.S.C 1465.); United States v. Groner, 494 
F.2d 499, at 501 (5th Cir. 1974), cert. den., 419 U.S. 1010 (1974) (The 
government has met its burden of proving scienter under the statute if it proves 
that the appellant knew the nature of the materials he put in interstate 
commerce.).   
 7 
Amicus argues that based upon the above case law, the requirement of 
scienter at issue in the instant case can be established by showing through direct 
or circumstantial evidence, that the Petitioner had knowledge, reason to know, 
an awareness, or notice of the general character or nature of the broadcast’s 
content, rather than the broadcaster having knowledge of and intent to broadcast 
the specific content that is alleged to have been indecent.  
II. IN FCC V. PACIFICA FOUNDATION, THE SUPREME COURT 
DID NOT HOLD THAT AN ‘OCCASIONAL EXPLETIVE’ 
COULD NEVER BE ACTIONABLE 
 
In FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (“Pacifica”), the 
Supreme Court upheld a Federal Communications Commission (FCC) 
determination that a 12 minute George Carlin monologue entitled “Filthy 
Words” was indecent as broadcast.  The Pacifica Court emphasized the 
“narrowness of its holding,”
1
 stating: 
This case does not involve a two-way radio conversation between a cab 
driver and a dispatcher, or a telecast of an Elizabethan comedy. We have 
not decided that an occasional expletive in either setting would justify 
any sanction…
2
   
 
In his concurrence, Justice Powell said that the holding “[D]id not speak 
to cases involving the isolated use of a potentially offensive word in the course 
                                                 
1
 Id. at 750. 
2
 Id. 
 8 
of a radio broadcast, as distinguished from the verbal shock treatment 
administered by respondent.”
3
 
In emphasizing the narrowness of its holding, however, the Pacifica 
Court did not hold that a single expletive could never be actionable.  That issue 
was not before the Court; and while the FCC chose to interpret Pacifica 
narrowly,
4
 broadcasters took a different view as the following articles indicate: 
When it was the ‘Seven Dirty Words,’ we knew what they were and we 
didn’t say them,” says Rick Cummings, president of Emmis’s radio 
division, referring to the forbidden words made famous by the comedian 
George Carlin uttering them…
5
 
 
In 1978, the FCC ruled that piss and six other words were indecent and 
forbidden when children are likely among a broadcast station’s 
audience.
6
 
 
III. CHILDREN DO NOT NEED TO HEAR A CURSE WORD 
REPEATED IN ORDER TO ENLARGE THEIR VOCABULARY 
 
In distinguishing Cohen v. California, 403 U.S. 15 (1971), the Pacifica 
Court observed, “Although Cohen’s written message might have been 
incomprehensible to a first grader, Pacifica’s broadcast could have enlarged a 
                                                 
3
 Id. at 760-761 (Powell, J., concurring). 
4
 Fox Television Stations v. FCC, 489 F.3d 444, at 449, n.4 (2d Cir. 2007)[“At 
the time, the Commission interpreted Pacifica as involving a situation ‘about as 
likely to occur again as Haley’s Comet.’  Brief of Amici Curiae Former FCC 
Officials at 6 (quoting FCC Chairman Charles D. Ferris, Speech to New 
England Broadcasting Assoc., Boston, Mass, July 21, 1978)”]. 
5
 Ann Marie Squeo, “Firing of ‘Love Sponge’ Signals Cleanup of Shock Radio,” 
Wall Street Journal, Feb. 25, 2004, p. B1. 
6
 Bill McConnell, “Seven provisionally dirty words?  Damn!”, Broadcasting & 
Cable, July 8, 2002. 
 9 
child’s vocabulary in an instant.”
7
  A child need not hear a four-letter word 
repeated over and over again in order to enlarge his or her vocabulary.
8
   
To their partial credit the broadcast TV networks have never aired 
programming as grossly vulgar as George Carlin’s “Filthy Words” monologue.  
And yet, as the following surveys show, a large majority of parents are 
concerned about what their children hear on TV. 
According to survey conducted by the Kaiser Family Foundation in 
2007,
9
 77% of parents said they were concerned that their children are exposed 
to too much “adult language” in the media; and 32% of parents said that 
“inappropriate content” in TV was what concerned them “most” (only 21% said 
inappropriate content in the Internet was what concerned them “most”).   
                                                 
7
 Pacifica, 438 U.S. at 749.  
8
 See, e.g., “It’s A Whabbit,” Talaris Institute (“Sometime around 18 months, a 
big change occurs. Young children start to recognize familiar sounds and sound 
patterns quickly when they hear them, and they begin to piece these familiar 
sounds together like puzzle pieces to form new words. This helps children learn 
to say new words after hearing them only once or twice.”), published at 
http://www.talaris.org/spotlight_wabbit.htm; See also, “Bring the learning fun of 
Sesame Street into your classroom,” PBS Teachers (“In addition to engaging 
children in meaningful conversations, invite them to: * Repeat new words they 
hear on the show;”), available at 
http://www.pbs.org/teachers/earlychildhood/articles/sesamestreet.html 
9
 “Parents, Children & Media,” Kaiser Family Foundation, June 2007, p. 24, 22. 
 10 
According to a survey conducted by Pew Research Center in 2005,
10
 69% 
of parents said they were concerned that their children hear “adult language” on 
TV.  According to a survey conducted in 2002 by Public Agenda,
11
 90% of 
parents said “TV gets worse by the year in terms of bad language and adult 
themes,” and 73% said they worried about “negative messages in the media.”  
 It would be helpful to have “scientific proof” showing that children learn 
“bad words” from listening to broadcasting and that their exposure to or use of 
these words can result in various harms.  But it would be foolish and unethical 
to expose children to an “isolated expletive” or to a barrage of expletives to 
determine whether or how such exposure affects them and others. 
IV. NUISANCE RATIONALE PROVIDES A ‘MIDDLE ROAD’ 
BETWEEN BANNING ALL EXPLETIVES AND ALLOWING AT 
LEAST ONE IN EVERY BROADCAST PROGRAM, 
REGARDLESS OF CIRCUMSTANCES 
 
When Congress enacted the Radio Act of 1927 and the Communications 
Act of 1934, it did not give broadcasters a right to use the public airwaves to 
use indecent language at least once in every program.  Both Acts included a 
provision making it unlawful to “utter any obscene, indecent, or profane 
language by means of radio communications.”  [Emphasis supplied by Amicus]   
                                                 
10
 Press Release, “Support for Tougher Indecency Measures…,” Pew Research 
Center for People & Press, p.13, Apr. 19, 2005 
11
 Press Release, “Parents in New Survey Report Limited Success Teaching 
Their Kids ‘Absolutely Essential’ Values,” Public Agenda, Oct. 2, 2002. 
 11 
When Congress enacted 18 U.S.C. 1464 in 1948, the law continued to prohibit 
“any obscene, indecent, or profane language.”  [Emphasis supplied] 
While little is known about what prompted regulation of obscene, 
indecent or profane language in broadcasting, it is doubtful that it was incidents 
similar to the airing of the “Seven Dirty Words” monologue.  In her 
monograph, “The Origins of the Ban on Obscene, Indecent or Profane 
Language of the Radio Act of 1927,”
12
 Milagros Rivera Sanchez described the 
following incidents: 
The earliest complaint dates back to March 1920.  Radio inspector S.W.  
Edwards asked Commissioner of Navigation A.J. Tyrer if the amateur 
license of Edgar Ferguson… should be suspended…Ferguson admitted to 
telling another amateur to “go to hell” over the air.  [At p. 8] 
 
In the case of Clarence R. Whitte…the record showed that in February 
1922 Acting Secretary of Commerce S. W. Stratton recommended that 
Whitte’s license be suspended for two weeks for transmitting profane 
language over the air.  Whitte had an argument with another amateur.  
When accused of monopolizing the air, Whitte said that anyone who said 
that was a “d[amn] liar.”  [At p. 9] 
 
Perhaps it would be unwise at this late date to attempt to roll back the 
clock to 1927, 1934 or 1948 and to insist that when Congress said any obscene, 
indecent or profane language, it meant what it said.  Amicus would also 
contend, however, that it would be just as unwise, if not more so, for the courts 
                                                 
12
 Journalism and Mass Communication Monographs, p.149, Feb. 1995, 
Association for Education in Journalism and Mass Communication.  
 12 
to now determine that broadcasters have a constitutional right to utter a single 
or “occasional” expletive, regardless of circumstances. 
In a preceding decision, this Court was of the opinion that the FCC’s 
warning about what broadcasters would do if they had a right to curse or swear 
at least once in each program was “divorced from reality.”
13
  But many TV 
broadcasters think they must compete with cable TV to succeed;
14
 and when it 
comes to profanity, just about anything goes on cable.
15
  And it isn’t just TV 
broadcasters; it is also radio broadcasters who air “shock jocks.”  Furthermore, 
since broadcasters often refuse to delay live programming, they cannot control 
what a “celebrity” will say in an entertainment, “news” or sports program. 
 According to one study that examined “the types and amounts of 
offensive language on prime-time TV four years after age and content 
restrictions were implemented:”   
The broadcast industry claims that the content-and aged-based ratings 
systems adequately alert viewers to offensive content. This study 
                                                 
13
 Fox Television Stations v. FCC, 489 F.3d 444, at 460 (2d Cir. 2007). 
14
 See, e.g., Barbara S. Kaye & Barry S. Saplosky, “Offensive Language in 
Prime-Time TV: Four Years After Television Age & Content Ratings,” Journal 
of Broadcasting & Electronic Media, Dec. 2004 [“The fierce competition 
between cable and broadcast programs is also a contributing factor…Broadcast 
executives feel that bowing to network censors and advertisers puts their 
programs at a disadvantage to cable fare that is not subject to the same content 
restrictions (Armstrong, 2001; Farhi, 2002; Van Munching, 2001)”]. 
15
 See, e.g., Ann Oldenburg, “Cussing on ‘Deadwood’ Sets Tongues A-
Wagging,” USA Today, May 2, 2004 (“On Sunday's show, there were at least 63 
mentions of the f-word in the hour.”). 
 13 
supports assertions that the warning systems give further license to 
broadcasters to include more profane television dialogue. The rate per 
hour of curse words jumped by 51% to about one such word every 8 
minutes in prime time. Offensive language on prime-time television 
declined in 1997, but in the 4 years between 1997, when the age-and 
content-based alerts were first implemented, and 2001, each category of 
swearing increased. Mild-other words grew in frequency by 44% and 
excretory words spiked 547%.
16
 
 
According to a study conducted by Parents Television Council: 
 
Foul language during the Family Hour increased by 94.8% between 1998 
and 2002 and by 109.1% during the 9:00 p.m. ET/PT time slot. 
Ironically, the smallest increase (38.7%) occurred during the last hour of 
prime time – the hour when young children are least likely to be in the 
viewing audience.
17
  
 
Whatever the strength or weaknesses of arguments for prohibiting all 
obscene, indecent or profane words or for allowing at least one obscene, 
indecent or profane word in each broadcast program, there is a middle road 
between the two extremes – namely, when utterance of such language amounts 
to a nuisance, it can be prohibited in broadcasting.   
                                                 
16
 Barbara S. Kaye & Barry S. Saplosky, “Offensive Language in Prime-Time 
TV: Four Years After Television Age & Content Ratings,” Journal of 
Broadcasting & Electronic Media, Dec. 2004. 
17
 Executive Summary, “The Blue Tube: Foul Language on Prime-Time 
Network TV,” Parents Television Council, Sept. 15, 2003, p.5. 
 14 
The Pacifica Court observed that the FCC’s decision “rested entirely on a 
nuisance rationale”
18
 and that the “concept requires consideration of a host of 
variables.”
19
    
Michigan v. Bennis
20
  is also authority for the proposition that a single act 
is sufficient to constitute a nuisance when it contributes to an existing condition 
that is a public nuisance.   Amicus contends that the problem of indecent 
language on broadcast TV is endemic and should be considered a nuisance,
21
 
especially during the prime time hours, as the following survey indicates:   
This Parents Television Council analysis of foul language on television is 
based on a comprehensive and exhaustive look at all primetime 
entertainment programming (sports and news programs excluded) on the 
major broadcast networks (ABC, CBS, Fox, NBC, CW, MyNetworkTV, 
UPN and WB) between 1998 and 2007… In total, nearly 11,000 
expletives…were aired during primetime on broadcast TV in 2007 – 
nearly twice as many as in 1998.  Milder expletives like hell, damn, crap, 
etc., are starting to take a back seat to harsher words.  In 1998, 92% of 
the foul language on TV was comprised of milder expletives.  In 2007, 
74% of the foul language could be categorized as mild… The f-word 
aired only one time on primetime broadcast TV in all of 1998 – yet it 
                                                 
18
 Id. at 750; see also, Hess v. Indiana, 414 U.S. 105, 108 (1973) (“In addition, 
there was no evidence to indicate Hess’ speech amounted to a public nuisance in 
that privacy interests were invaded…Cohen v. California, supra, at 21.”); 
Rosenfeld v. New Jersey, 408 U.S. 901, 903-909 (1972) (Powell, J., dissenting). 
19
 Pacifica, at 750. 
20
 527 N.W.2d 483 (Mich. 1994), aff’d., Bennis v. Michigan, 516 U.S. 442 
(1996).   
21
 Cf., E.L. Carter, et al., “Broadcast Profanity and the ‘Right to be let alone’: 
Can the FCC regulate non-indecent fleeting expletives…?”, 31 Hastings Comm. 
& Ent. L.J. 1, 38 (2008) (“Clearly, not every profane utterance on broadcast TV 
would justify a finding of public nuisance, but the overall repetitiveness of 
profanity on TV generally might be called a nuisance.”). 
 15 
appeared 1,147 times on primetime broadcast TV in 2007 on 184 
different programs… The s-word, which appeared only two times in 
1998, aired 364 times in 2007 on 133 different programs…
22
 
 
For these reasons, Amicus contends while it is proper for the Commission 
to treat the frequency or duration of a description or depiction of sexual or 
excretory activities or organs as a “variable”
23
 in determining whether 
programming is indecent, it would be misguided for this Court to determine that 
an occasional or isolated expletive can never be indecent. 
V. IN PACIFICA, NEITHER THE SUPREME COURT NOR THE 
FCC DETERMINED THAT ONLY LITERAL USES OF 
EXPLETIVES WERE ACTIONABLE 
 
On October 3, 2003, the FCC’s Enforcement Bureau released an Order
24
 
denying 234 complaints regarding the live broadcast of the Golden Globe 
Awards.  The complainants said that Bono had uttered the phrase, “this is 
really, really, fucking brilliant” or “this is fucking great.”
25
   The Bureau stated:  
As a threshold matter, the material aired during the Golden Globe 
Awards program does not describe or depict sexual or excretory 
activities and organs.  The word “fucking” may be crude and offensive, 
but, in the context presented here, did not describe sexual or excretory 
organs or activities.  Rather, the performer used the word “fucking” as an 
adjective or expletive to emphasize an exclamation. Indeed, in similar 
circumstances, we have found that offensive language used as an insult 
                                                 
22
  Press Release, “PTC Finds Increase in Harsh Profanity on TV,” Parents 
Television Council, Oct. 29, 2008. 
23
 438 U.S. at 750. 
24
 In the Matter of Complaints Against Various Broadcast Licensees Regarding 
Their Airing of the “Golden Globe Awards” Program, 18 FCC Rcd. 19859. 
25
 Id. 
 16 
rather than as a description of sexual or excretory activity or organs is not 
within the scope of the Commission’s prohibition of indecent program 
content.
26
 [Emphasis added by Amicus] 
 
It is one thing for the FCC to determine that how an expletive is used (as an 
adjective, expletive, insult or description) is a variable in determining whether 
content is indecent.  It is quite another for the FCC to determine that a vulgar 
term for sexual or excretory activities or organs, when used as an “adjective” 
(as in, “That c---k s----r is the best in the business”) or as an “expletive to 
emphasize an exclamation” (as in, “Holy s--t, I won!”) or as an “insult” (as in, 
“You mother f----r”), is per se not indecent.  The latter determination is not 
only a departure from Pacifica, it is also a departure from common sense. 
 Nowhere did the FCC or the Pacifica Court say or hold that the seven 
“dirty words” were actionable only when Carlin meant to use them literally (as 
in, “Did you see those kids f-----g in the car seat?”).  
In fact, one of Carlin’s uses of the s-word was quite similar to Bono’s use 
of the f-word in the Golden Globe program. At one point during his monologue, 
Carlin stated, “S--t, I won the Grammy, man, for the comedy album.”
27
  As 
Broadcasting & Cable also observed in an editorial,
28
 “But hasn’t George 
Carlin’s M-word always been an epithet rather than an accusation of incest?”  
                                                 
26
 Id. at 19861. 
27
 Id. at 752. 
28
 “Curioser and Curioser,” July 8, 2002. 
 17 
Rather than focusing on whether Carlin used the words figuratively or 
literally, both the FCC and the Court looked to the plain meaning of the words.   
In its Declaratory Order,
29
 the FCC noted that the monologue consisted of a: 
comedy routine, frequently interrupted by laughter from the audience, 
and that it was almost always totally devoted to the use of words as “shit” 
and “fuck,” as well as “cocksucker,” “motherfucker,” “piss,” and 
“cunt”…Thereafter, there is repeated use of the words “shit” and “fuck” 
in a manner designed to draw laughter from his audience.
30
   
 
….the Commission concludes that words such as “fuck,” “shit,” “piss,” 
“motherfucker,” “cocksucker,” “cunt,” and “tit” depict sexual and 
excretory activities and organs in a manner patently offensive by 
contemporary community standards for the broadcast medium and are 
accordingly “indecent.”
31
 [Emphasis supplied by Amicus] 
 
In describing the Commission’s action, the Pacifica Court said: 
 
The Commission identified several words that referred to excretory or 
sexual activities or organs, stated that the repetitive, deliberate use of 
those words in an afternoon broadcast when children are in the audience 
was patently offensive, and held that the broadcast was indecent.
32
  
[Emphasis supplied by Amicus] 
 
VI. THE FCC’S DEFINITION OF “INDECENT” IS NOT VAGUE  
 
In Pacifica,
33
  the Supreme Court noted that the “normal definition of 
‘indecent’ merely refers to nonconformance with accepted standards of 
morality.”  As defined by the Commission, however, the term “indecent” is 
                                                 
29
 Citizen’s Complaint Against Pacifica Foundation Station WBAI (FM), New 
York, NY, 56 FCC2d 94, Released Feb. 21, 1975. 
30
 Id. at 95. 
31
 Id. at 99. 
32
 Pacifica, 438 U.S. at 739. 
33
 Id. at 740. 
 18 
limited to language that, in context, depicts or describes, in a patently offensive 
manner, depictions and descriptions of sexual or excretory activities or organs. 
Petitioner Fox Television Station’s Brief states at page 42 that “no court 
has ever reached a considered judgment that the FCC’s regulation of indecency 
is not vague.”  In Dial Information Services v. Thornburgh,
34
 however, this 
Court held that the term “indecent” in the Helms Amendment,
35
 was not vague 
since the term “had been defined clearly by the FCC.”
36
  “It is noteworthy,” 
continued the Court of Appeals, “that the Commission's most recent definition 
of ‘indecent’ tracks one that it developed in the radio broadcast context and that 
passed muster in the Supreme Court.”
37
  
In Action for Children’s Television v. FCC,
38
 the D.C. Circuit stated, “[I]f 
acceptance of the FCC's generic definition of ‘indecent’ as capable of surviving 
a vagueness challenge is not implicit in Pacifica, we have misunderstood 
Higher Authority and welcome correction.”   Nevertheless, to ensure that 
broadcasters would not “forgo the broadcast of certain protected speech 
                                                 
34
 938 F.2d 1535 (1991), cert. den., 502 U.S. 1072 (1992). 
35
 The Helms Amendment prohibits providers of indecent telephone 
communications for commercial purposes from making their services available 
to persons under 18 years of age. 47 U.S.C. 223(b)(c). 
36
 938 F.2d at 1540. 
37
 Id. at 1541. 
38
 852 F.2d 1332, at 1339 (1988). 
 19 
altogether,”
39
 the D.C. Circuit concluded that the FCC must establish 
“reasonably determined times at which indecent material safely may be 
aired.”
40
  At present this D.C. Circuit-mandated “safe harbor for the broadcast 
of (possibly) indecent material”
41
 runs from 10 pm to 6 am, 365 days a year.   
In Denver Area Ed. Telecom. Consortium v. FCC,
42
 the Supreme Court 
rejected a vagueness challenge to 47 U.S.C. 532(h),
43
 which includes language 
similar to the FCC’s definition of “indecent” for broadcasting.    
 Petitioner Fox Television Station’s Brief also states at page 43 that “a 
unanimous Supreme Court in Reno concluded that the nearly identical 
Communications Decency Act
44
 was unconstitutionally vague.”  The Reno 
Court, however, expressly stated: 
In its appeal, the Government argues that the District Court erred in 
holding that the CDA violated both the First Amendment because it is 
overbroad and the Fifth Amendment because it is vague. While we 
discuss the vagueness of the CDA because of its relevance to the First 
Amendment overbreadth inquiry, we conclude that the judgment should 
be affirmed without reaching the Fifth Amendment issue.
45
   
 
                                                 
39
 Id. at 1342. 
40
 Id. at 1343. 
41
 Id., at 1342. 
42
 518 U.S. 727, at 750-753 (1996). 
43
 Section 532(h) permits cable TV operators to prohibit programming on leased 
access channels that the cable operator “reasonably believes describes or depicts 
sexual or excretory activities or organs in a patently offensive manner as 
measured by contemporary community standards.” 
44
 47 U.S.C. 223. 
45
 Reno v. ACLU, 521 U.S. 844, 864 (1997). 
 20 
The Reno Court was also apparently confused by the fact that “each of 
the two parts of the CDA” used “a different linguistic form”
46
 and about 
whether “the ‘patently offensive’ and ‘indecent’ determinations should be made 
with respect to minors or the population as a whole.”
47
  The Reno Court also 
stated:  
[T]he CDA is a criminal statute. In addition to the opprobrium and 
stigma of a criminal conviction, the CDA threatens violators with 
penalties including up to two years in prison for each act of 
violation…As a practical matter, this increased deterrent effect, coupled 
with the ‘risk of discriminatory enforcement’ of vague regulations, poses 
greater First Amendment concerns than those implicated by the civil 
regulation reviewed in Denver Area Ed. Telecom. Consortium, Inc. v. 
FCC… 
 
Following the Reno decision, the FCC also issued a policy statement to 
provide licensees with “interpretive guidance” about indecency enforcement.
48
 
Amicus would add that there is “no ‘bright line test’ for recognizing 
sexual harassment”
49
 but media companies are still responsible for determining 
what violates the law. 
                                                 
46
 Id. at 870-871. 
47
 Id. at 871. 
48
 Industry Guidance on the Commission’s Case Law Interpreting 18 U.S.C. 
1464 & Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 
7999, 8008-09 (2001). 
49
 “Attorneys Offer Tips on Investigating Charges of Sexual Harassment,” 
U.S.L.W., Vol. 67, No. 6, p. 2090 (8/18/98); see also, A.K. Blair, “Harassment 
Law: More Confused Than Ever,” Wall Street Journal, July, 8 1998. 
 21 
VII. FCC COMMISSIONERS ARE COMPETENT TO ASCERTAIN 
‘CONTEMPORY COMMUNITY STANDARDS’ FOR THE 
BROADCAST MEDIA 
  
The concept of utilizing community standards as the criterion for testing 
descriptions or depictions of sexual matters was first adopted by the Supreme 
Court in 1957 in Roth v. United States
50
 when it laid down its test for 
determining whether a work is obscene. The Roth test was utilized in Miller v. 
California
51
 for measuring prurient appeal and later, in Smith v. United States,
52
 
the Supreme Court said a jury must measure patent offensiveness against 
community standards.  In Hamling v. United States,
53
 the Court stated: 
A principal concern in requiring that a judgment be made on the basis of 
“contemporary community standards” is to assure that the material is 
judged neither on the basis of each juror’s personal opinion, nor by its 
effect on a particularly sensitive or insensitive person or group. 
 
Hamling also said, quoting from Roth, “’It is common experience that 
different juries may reach different results under any criminal statute.  That is 
one of the consequences we accept under our jury system.’”
54
 
 But it isn’t just jurors who are deemed competent to ascertain 
community standards,
55
 and there is no reason to conclude that five FCC 
                                                 
50
 354 U.S. 476. 
51
 413 U.S. 15 (1973). 
52
 431 U.S. 291 (1977). 
53
 418 U.S. 87, at 107 (1974). 
54
 418 U.S. at 101. 
 22 
Commissioners, who are appointed by the President and confirmed by the 
Senate, are incapable of determining community standards for broadcasting.  
Comprised of three men and two women, one of whom is an African American, 
the current Commission is a diverse group politically and socially.
56
   
 Furthermore, despite the reality that most citizens never take the time to 
make a complaint about indecent content on TV,
57
 the FCC currently has a 
backlog of indecency complaints in excess of 1.4 million; and in the first 
quarter of 2009 there were 181,080 indecency complaints.    
 Petitioner Fox Television Station’s Brief nevertheless states at page 46, 
“Ironically, the ‘community standard’ that is supposed to be an objective 
measure of what the public thinks to provide a check on the FCC’s discretion 
has become the opposite: a vehicle for the unfettered (and unpredictable) 
discretion of the FCC’s current members and their particular sensibilities.”  If 
Petitioner is accusing Commissioners of deciding cases on the basis of their 
personal opinions, it has offered no evidence that this is so.  
                                                                                                                                                         
55
 Cf., Miami v. Florida Literary Distributing Corp., 486 So. 2d 569, 572 (Fla. 
1986), cert. denied, 479 U.S. 872 (1986) (“…we likewise can find no basis for 
distinguishing between the competence of a judge and a jury to ascertain the 
contemporary standards of the community wherein they sit.”)  
56
 The Commissioners’ biographies are published on the www.fcc.gov website. 
57
 See, Time Poll, Mar. 20, 2005 (While 58% said there was too much “cursing 
and sexual language” on TV, only 5% had “ever complained to a broadcaster or 
the government, or participated in a boycott or demonstration”), available at 
http://www.time.com/time/covers/1101050328/photoessay/poll1.html  
 23 
VIII. BROADCASTING IS STILL ‘UNIQUELY PERVASIVE’ 
 In a preceding decision, this Court stated that it is “increasingly difficult 
to describe the broadcast media as uniquely pervasive and uniquely accessible 
to children”
58
 and that the TV networks “rightly rest their constitutional 
arguments in part”
59
 on United States v. Playboy Entertainment Group,
60
 where 
the court applied “strict scrutiny” to a federal law that would have required 
cable TV operators to either completely scramble the signals for pay porn 
channels or to air the imperfectly scrambled signals only from 10 p.m. to 6 a.m.    
When Congress enacted the Radio Act of 1927 and made it unlawful to 
“utter any obscene, indecent, or profane language by means of radio 
communications,” however, it could not have been said that radio “had 
established a uniquely pervasive presence in the lives of all Americans.”
61
  By 
1930, only 40% of all U.S. households had purchased radio receivers.
62
   
Amicus would also contend that what justified broadcasting’s special 
treatment in 1978 was not its “uniqueness” per se but rather that broadcasting 
had in fact become pervasive, unlike any other form of media.  By 1978, 
                                                 
58
 Fox Television Stations, 489 F.3d at 465. 
59
 Id. 
60
 529 U.S. 803 (2000). 
61
 Pacifica, 438 U.S. at 748. 
62
 Steve Craig, "How America Adopted Radio: Demographic Differences in Set 
Ownership…in 1930-1950 U.S. Censuses." Journal of Broadcasting & 
Electronic Media, Vol. 48, No. 2, 2004. 
 24 
televisions were in almost every home, and radios were in almost every home, 
car and truck.  Portable radios could also be taken almost anywhere.  Unlike 
newspapers, radio and TV could also be heard/watched by more than one 
person at a time and were readily accessible to anyone, including children, 
unable to read. 
 Furthermore, the concerns that justified regulation of broadcasting in the 
first place – namely, protecting children and the privacy of the home – were 
made even more pressing by the proliferation of new forms of electronic media, 
which also reach into the home and are accessible to children.  The advent of 
cable TV, satellite TV and radio, the Internet, and wireless, not to mention 
videos and videogames, has made a parent’s job tougher, not easier.
63
 
IX. THE HOME IS STILL A SPECIAL PLACE 
 
 In Pacifica, the Supreme Court stated: 
And of all forms of communication, it is broadcasting that has received 
the most limited First Amendment protection…The reasons for these 
distinctions are complex, but two have relevance to the present case. 
First, the broadcast media have established a uniquely pervasive presence 
in the lives of all Americans. Patently offensive, indecent material 
presented over the airwaves confronts the citizen, not only in public, but 
also in the privacy of the home, where the individual's right to be left 
alone plainly outweighs the First Amendment rights of an intruder...
64
 
 
                                                 
63
 See, e.g., “Navigating the Children’s Media Landscape: A Parent’s and 
Caregiver’s Guide,” By American Institutes for Research, Prepared for Cable in 
the Classroom and National PTA, Apr. 4, 2004. 
64
 438 U.S. at 748. 
 25 
On this point, Justice Powell agreed: 
 
A second difference, not without relevance, is that broadcasting -- unlike 
most other forms of communication -- comes directly into the home, the 
one place where people ordinarily have the right not to be assaulted by 
uninvited and offensive sights and sounds.... Although the First 
Amendment may require unwilling adults to absorb the first blow of 
offensive but protected speech when they are in public before they turn 
away…a different order of values obtains in the home.
65
 
 
 It would be an anomaly indeed if “patently offensive references to 
excretory and sexual organs and activities”
66
 that could create or contribute to a 
“hostile work environment” for purposes of sexual harassment law,
67
 can no 
longer amount to a “nuisance” for purposes of the broadcast indecency law.   It 
would indeed be an anomaly if protecting adults from offensive remarks in the 
workplace is now a more pressing governmental concern than protecting adults 
and children in the home from broadcast indecency.    
Amicus would also point out that in Torres v. Pisano,
68
 this Court 
recognized that “a single episode of harassment, if severe enough, can establish 
a hostile work environment.”  Other courts have held that a single offensive 
                                                 
65
 438 U.S. at 759; see also, Frisby v. Schultz, 487 U.S. 474, 479, 484 (1988). 
66
 438 U.S. at 743. 
67
 See, e.g., Suders v. Easton, 325 F.3d 432 (3
rd
 Cir. 2003), rev’d on other 
grounds, Pennsylvania State Police v. Suders, 542 U.S. 129(2004); Petrosino v. 
Bell Atlantic, 385 F.3d 210 (2d Cir. 2004); Ocheltree v. Scollon Productions, 
335 F.3d 325 (4
th
 Cir. 2003). 
68
 116 F.3d 625, 631 n.4 (2d Cir. 1997), cert. den., 522 U.S. 997 (1997). 
 26 
remark can produce a hostile work environment.  See, Kwiatkowski v. Merrill 
Lynch,
69
 Taylor v. Metzger,
70
 and Reid v. O’Leary.
71
 
X. V-CHIP RATINGS SYSTEM HAS BEEN A FAILURE 
 
In an opinion poll conducted in 1998 by Wirthlin Worldwide for 
Morality in Media,
72
 59% of adult Americans thought the FCC needed to work 
harder to enforce the broadcast indecency law; only 28% thought a rating 
system and V-Chip combination would be an effective alternative. 
According to a 2001 Kaiser Family Foundation survey,
73
 despite the fact 
that more than 80% of parents were “concerned that their children are being 
exposed to too much sex and violence on TV,” only 7% of parents were using 
the V-Chip.  In 2004, Kaiser found that only 15% of parents had used it.
74
  In 
2007, Kaiser found that only 16% of parents had used it.
75
   
Undoubtedly, there are many reasons that parents don’t use the V-Chip, 
including the cost of purchasing a new TV with a V-Chip, problems (including 
                                                 
69
 A-2270-06 (N.J. Super. Ct. App. Div. 2008), cert. den., 962 A.2d 530 (N.J. 
2008). 
70
 706 A.2d 685 (N.J. 1998). 
71
 1996 U.S. Dist. LEXIS 10627 (D.D.C. July 15, 1996). 
72
 Copy of MIM Release about the survey available from Amicus. 
73
 News Release, “Few Parents Use V-Chip to Block TV Sex and Violence…” 
Kaiser Family Foundation, 2001. 
74
 Kaiser Family Foundation, “Parents, Media and Public Policy,” p. 7, 2004. 
75
 Kaiser Family Foundation, “Parents, Children and Media,” p. 30, 2007. 
 27 
language and literacy barriers) with programming the V-Chip, parental naiveté 
(as in, “My child wouldn’t be interested in that”), indifference and neglect.   
Another problem with the V-Chip is that it over-blocks.  Like the self-
serving MPAA rating system it is based on, each TV rating – but especially the 
V-PG and R ratings – encompass programming that parents will regard as very 
good or totally unsuitable or somewhere in between.  If a parent sees or reads 
about program that the parent objects to and then programs the V-Chip to block 
that program, all other programming in that category will also be blocked.   
And just as a motion picture film rarely if ever receives an MPAA “NC-
17” rating, these days a broadcast network program rarely if ever receives an 
“M” rating, which means that ALL broadcast programming is deemed suitable 
for children 14 years of age and older.  Since, many children reach age 14 while 
still in grade school, this must mean that children are maturing much faster than 
they have in the past or that the TV rating system is in good measure a sham.  
The V-Chip ratings system has also been criticized for failure to utilize 
content descriptors
76
 and for doing a poor job of screening violent content in 
children’s programming.
77
   
                                                 
76
 Special Report, “The Ratings Sham II: TV Executives Still Hiding Behind a 
System that Doesn’t Work,” Parents Television Council, Apr. 16, 2007. 
77
 Toni Fitzgerald, “Two profs beat up on kids TV ratings: Study finds more 
physical aggression in TV-Y and TV-7,” Media Life Magazine, Mar. 6, 2009. 
 28 
Furthermore, the V-Chip ratings system doesn’t apply to sponsor ads, 
program promos, “news” programs or sports programs.  And lastly, the V-Chip 
does not work with radio programming. 
CONCLUSION 
 For all of the above reasons, Amicus respectfully requests this Court 
uphold the Commission’s Order at issue in this appeal.  
 
Respectfully submitted, 
/s/ Robin S. Whitehead  
Robert W. Peters 
Robin S. Whitehead 
Morality in Media, Inc. 
475 Riverside Drive 
New York, NY 10115 
(212) 870-3222 
Counsel for Amicus Curiae 
 
 
CERTIFICATE OF COMPLIANCE WITH RULE 32(a) 
 
1. This brief complies with the type-volume limitation of Fed. R. App. 
P. 32(a)(7)(B) because this brief contains 6,952 words excluding the parts of 
the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 
 
2. This brief complies with the typeface requirements of Fed. R. App. 
P. 32(a)(5), and the type style requirements of Fed. R. App. P. 32(a)(6) 
because this brief has been prepared in a proportionally spaced typeface 
using Microsoft Office Word Version 2003 (11.6502.6408)(SP1) in 14 point 
Times New Roman type style. 
 
 
 
/s/ Robin S. Whitehead  
/s/ Robin S. Whitehead 
 
CERTIFICATE OF SERVICE 
06-1760-ag(L), 06-2750-ag(Con), 06-5358-ag(Con) 
 Fox Television Stations, Inc. v. Federal Communications Commission 
I hereby certify that two copies of this Brief Of Amicus Curiae 
MORALITY IN MEDIA, INC., in Support Of Respondents were sent by First 
Class Regular Mail delivery to: 
Carter G. Phillips 
Sidley Austin LLP 
1501 K Street, N.W.  
Washington, DC 20005 
(202) 736-8000 
Attorneys for Petitioner 
Fox Television Stations, Inc. 
 
Austin Schlick 
Joseph Palmore 
Federal Communications Commission  
Office of the General Counsel 
Room 8-A741 
445 12
th
 Street, S.W. 
Washington, DC 20554 
(202) 418-2159 
Attorneys for Respondent FCC 
 
Wade H. Hargrove 
Brooks Pierce McLendon Humphrey 
  & Leonard, LLP 
Wachovia Capital Center, Suite 1600 
150 Fayetteville Street 
P.O. Box 1800 
Raleigh, NC 27602 
Attorneys for Petitioner 
KMBC Hearst-Argyle Television, Inc. 
and Intervenor ABC Television 
Affiliates Association 
 
Robert A. Long 
Covington & Burling 
1201 Pennsylvania Avenue, N.W. 
Washington, DC 20004 
(202) 662-5612 
Attorney for Intervenors 
NBC Television Affiliates and CBS 
Television Network Affiliates 
 
 
Robert Corn-Revere 
Davis Wright Tremaine LLP 
1919 Pennsylvania Avenue. N.W. 
Suite 200 
Washington, DC 20006-3402 
(202) 973-4200 
Attorney for Petitioner 
CBS Broadcasting Inc. 
 
Thomas M. Bondy 
U.S. Department of Justice 
950 Pennsylvania Avenue, N.W. 
Room 7535 MAIN 
Washington, DC 20530 
Attorney for Respondent 
United States of America 
 
Seth P. Waxman 
Wilmer Cutler Pickering Hale and 
   Dorr LLP 
1875 Pennsylvania Avenue, N.W. 
Washington, DC 20006 
(202) 663-6000 
Attorney for Petitioner 
ABC Inc., WLS Television, Inc. KTRK 
Television 
 
Miguel A. Estrada 
Gibson, Dunn & Crutcher LLP 
1050 Connecticut Avenue, N.W.  
Washington, DC 20036-5306 
(202) 955-8257 
Attorney for Intervenor 
NBC Universal, Inc. and NBC 
Telemundo License Co. 
 
 
 
 
 
 
 
 
2 
 
 
Andrew Jay Schwartzman 
Media Access Project 
1625 K Street, N.W. 
Washington, DC 20006 
(202) 232-4300 
Attorney or Intervenor 
Center for the Creative Community, 
Inc. d/b/a Center for Creative Voices 
in Media, Inc 
 
I also certify that the original and nine copies were also shipped via Hand delivery 
to: 
Clerk of Court 
United States Court of Appeals, Second Circuit 
United States Courthouse 
500 Pearl Street, 3
rd
 floor 
New York, New York 10007 
(212) 857-8576 
on this 28
th
 day of October 2009.  
Notary Public: 
/s/ Jacqueline Gordon /s/ Nadia R. Oswald Hamid 
Sworn to me this 
October 28, 2009 
JACQUELINE GORDON 
Notary Public, State of New York 
No. 01GO6149165 
Qualified in Kings County 
Commission Expires July 3, 2010 
NADIA R. OSWALD HAMID 
Record Press, Inc. 
229 West 36
th
 Street, 8
th
 Floor 
New York, New York 10018 
(212) 619-4949 
 
 
ANTI-VIRUS CERTIFICATION 
 
 
Case Name:  Fox Television Stations, Inc. v. Federal Communications 
Commission 
Docket Number: 06-1760-ag(L), 06-2750-ag(Con), 06-5358-ag(Con) 
 
I, Jacqueline Gordon, hereby certify that the Amicus Brief submitted in PDF 
form as an e-mail attachment to agencycases@ca2.uscourts.gov in the above 
referenced case, was scanned using CA Software Anti-Virus Release 8.3.02 (with 
updated virus definition file as of 10/28/2009) and found to be VIRUS FREE. 
 
/s/ Jacqueline Gordon 
Jacqueline Gordon 
Record Press, Inc. 
 
 
Dated: October 28, 2009