ACT v. FCC, 58 F.3d 654; 1995 U.S. App. LEXIS 16078 (D.C. Cir. 1995) (ACT III)

Challenge to the constitutionality of section 16(a) of the Public Telecommunications Act of 1992,. Section 16(a) provides that, with one exception, indecent materials may only be broadcast between the hours of midnight and 6:00 a.m. The exception permits public radio and television stations that go off the air at or before midnight to broadcast such materials after 10:00 p.m.

The Court accepted the government's argument that it has a compelling interest in protecting children under the age of 18 from exposure to indecent broadcasts.

It also found that absent the provision creating a broader (10:00 p.m. to 6:00 a.m.) safe harbor for noncommercial broadcasters, the "channeling" of indecent broadcasts to the hours between midnight and 6:00 a.m. would not unduly burden the First Amendment.

However, the different standards for commercial and non-commercial broadcasters proved fatal to the government's position. The Court said "the distinction drawn by Congress between the two categories of broadcasters bears no apparent relationship to the compelling Government interests that section 16(a) is intended to serve;" therefore the court found "the more restrictive limitation unconstitutional."

The case was remanded to the FCC "with instructions to revise its regulations to permit the broadcasting of indecent material between the hours of 10:00 p.m. and 6:00 a.m."

ACT's arguments:

• The statute and regulations... are not narrowly tailored to further the Government's interest, which...is the promotion of parental authority by shielding unsupervised children from indecent speech in the broadcast media;
• Section 16(a) unconstitutionally discriminates among categories of broadcasters by distinguishing the times during which certain public and commercial broadcasters may air indecent material;
• The Commission's generic definition of indecency is unconstitutionally vague.
• The government has not presented sufficient data to justify the new statutory ban or its expansion of the definition of "children" to include children ages 12 to 17 in the protected class.

The FCC's arguments:

The Government's interests include:

• Facilitating parental supervision of children
• Protecting children from exposure to indecent broadcasts (independent of parental concerns or desires)
• Safeguarding the home from unwanted intrusion by such broadcasts. (The Court did not address this interest in its analysis)

. The First Amendment Challenge

A restriction on indecent speech will survive First Amendment scrutiny if the "Government's ends are compelling [and its] means [are] carefully tailored to achieve those ends." Id.

The Court has identified two reasons for distinguishing the regulation of broadcasting:

First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over theairwaves 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. ... Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content....

Second, broadcasting is uniquely accessible to children.... Other forms of offensive expression may be withheld from the young without Despite the increasing availability of other means of receiving television, such as cable (which is not immune to the concerns we address today, see Alliance for Community Media v. FCC, 56 F.3d 105, slip op. at 32-34, 1995 U.S. App. LEXIS 13857 (D.C. Cir. 1995)), there can be no doubt that the traditional broadcast media are properly subject to more regulation than is generally permissible under the First Amendment.

The compelling Government interests

"supporting parents' claim to authority in their own household" through "regulation of otherwise protected expression."

the Government's own interest in the well-being of minors provides an independent justification for the regulation of broadcast indecency.

What evidence of harm to children is required?

• The Supreme Court has never suggested that a scientific demonstration of psychological harm is required in order to establish the constitutionality of measures protecting minors from exposure to indecent speech.... Congress does not need the testimony of psychiatrists and social scientists in order to take note of the coarsening of impressionable minds that can result from a persistent exposure to sexually explicit material just this side of legal obscenity.

Must the Government demonstrate that children are "unsupervised" to support "safe harbor" hours?

• The Government's dual interests in assisting parents and protecting minors necessarily extends beyond merely channeling broadcast indecency to those hours when parents can be at home to supervise what their children see and hear. It is fanciful to believe that the vast majority of parents who wish to shield their children from indecent material can effectively do so without meaningful restrictions on the airing of broadcast indecency.

Note: Judge Edwards dissent challenged the premise that broadcasting should be treated differently than cable media:

Respectfully, I find the majority's position flawed. First, because I believe it is no longer responsible for courts to provide lesser First Amendment protection to broadcasting based on its alleged "unique attributes," I would scrutinize section 16(a) in the same manner that courts scrutinize speech restrictions of cable media.