 The lawyers and judges use the words, which some may find offensive. Thank you. Good morning. Please be seated. Just one or two housekeeping matters. Judge Sack was a member of this panel, but recused himself. We're joined by Judge LaValle after we hear argument in the first case. We will adjourn for 10 minutes so that Judge Sack can join us for the balance of the calendar. The second matter is I left it to the parties to divide up the time allocated, and I assume they've done that. So let me call Fox versus FCC, and we also have, I see on the calendar, CBS and NBC as interveners arguing. So we'll Fox take the podium. Good morning, honor. Carter Phillips representing Fox Television. I will also be the only counsel arguing on our side in this case. In 2002, the renowned actress and singer-share responded to her critics in a television show by saying, fuck them. And in 2003, Nicole Richie, who is an actress, commented on her own television show, which is entitled The Simple Life, by saying that it was hardly all that simple because does anybody know how hard it is to get, how fucking hard it is to get cow shit out of a prod of purse? Did Fox plan those statements? No, there's no dispute that Fox did not plan them. The only assessment by the FCC is that Fox was arguably negligent in failing adequately to respond to the possibility that those statements might be offered. Would it have made a difference if Fox knew in advance? Will you concede that? Well, it would have satisfied the intent standard that we believe is appropriate under the statute, but it still, from our perspective, it still wouldn't make this conduct indecent. And both of those award shows were on the air before the Golden Globes Order, is that correct? Yes, both of them predated the Golden Globes Order. So, as of that point in time, we have 30 years of unbroken precedent where Commission recognizes, obviously, that the use of these explodives is offensive to some, but has never declared that the use of these explodives is a basis for any kind of a sanction. May we start? Let me just say a word. First, let me ask you all to recognize that the acoustics in this room are terrible, so please speak good and loud, emphatically and clearly. I don't see why, I don't understand why Fox's knowledge or lack of knowledge really has anything to do with the question whether what comes out on the air is indecent or profane. It may have a lot to do with whether a penalty should be imposed, which was not imposed in this case, but you would agree, I take it, that planned or unplanned has nothing to do with whether the content is indecent. Right, I think if it's scripted and intended to be put forward on the air, there's still the fundamental question as to whether or not the particular words can be declared to be indecent, and then after that, obviously, you go into the question of intent. Or if they're integral to the work, then they may be found not indecent, like saving Private Ryan. Right, there's no question that the Commission has a basic approach that says that we will presume that the use of these particular explodives, or specific words, is presumptively indecent. And then you have the opportunity to come in and try to rebut that presumption by saying that there is some contextual basis for supporting it. But obviously, the creation of the presumption in the first instance is a complete departure from any notion of context, because it's saying these are words that are categorically barred, which is something the Commission has never said in 30 years of enforcement of indecency. Well, the words are the same. The regulation is the same that's been in effect, hasn't it? It's just a different level of enforcement. It's a demonstrably different level. Isn't that new words? They always, and these are the words that have been used in other contexts as well. It's the barring of the reference to sexual and excretory activities and organs. Well, the generic policy has been essentially unchanged since Pacifica was decided in 1978. But yes, you're right, Your Honor. What has changed dramatically is the Commission's decision that any use of these particular words becomes essentially a per se violation regardless of the context, which as I say, a dramatic departure from anything that existed prior to this. So there's an agency that changed how they view words that pre-existed. And they started by 2001 giving industry guidance, which didn't change the policy. Didn't change a thing on the score, no, Your Honor. And then in 2004 issued the Golden Globes Order. Do you argue before us that they didn't give reasoned analysis for the change? Yes. That is precisely what we're arguing, Your Honor. That if you look at the justification for the change, all that's put in place is this first bite principle. That's essentially their argument, which is that you have to stop any kind of exposure to these words for children. What would they have had to do to convince you that it was a reasoned analysis? Well... Could they tell you that children were harmed if such studies exist? That would certainly... I mean, I think it would be very difficult to demonstrate that exposure to a single word could remotely injure children. But children who live in bubbles, it would be fine. But if they live in the world, your argument might be more persuasive. But if you can keep the child away from every form of communication, then... That's fine. And if the commission can identify any child in that category who is nevertheless watching broadcast television, that would be quite an extraordinary achievement. But it's a burden. It seems to me that... There wasn't reasoned analysis or that there wasn't sufficient proof and evidence to support the reasoned analysis? It's both, actually. I don't think there is a reasoned analysis embedded in here. Is that something that, in your view, could simply be plugged up by setting forth some more extensive analysis? Or is it your position that the position taken by the commission is simply unjustifiable so that there can't be any reasoned analysis of something that's unjustifiable? I mean, our alternative argument, obviously, is that this is First Amendment protected activity and that you need to have a compelling state interest and narrow tailoring. And you're not going to get that in this context. I've been puzzled by your argument about lack of reasoned analysis. It seems to me that they explain why they take the position that they take. They do, but I don't think there's reasoned, Judge LaValle. I think the problem with that is their argument is that you have to prevent children from any exposure to these particular words, and then they proceed in the same breath to recognize that exposure to these particular words is routinely permitted at these particular times if it can be justified on alternative grounds. Either there is a huge compelling overriding interest. Now is more along the lines of that there can be no reasoned analysis of something that's inherently unreasonable. I think, yeah, at the end of the day that is our argument. But you don't have to get to that point, I don't think. If you want to simply say the commission hasn't come up with an adequate justification for a 180-degree reversal of its precedent, if it wants to go back and try again, I suppose that's fine. So what would be an adequate justification to get back to what I think was Judge LaValle's original question? Well, in the context of a single use of an expletive, I don't know that there's ever going to be anything that satisfies that. So the bottom line of your argument here, then, Mr. Phillips, is that the FCC cannot regulate the fleeting expletive, if you will. I think that's right, although, you know, I don't have to sustain that argument. All I have to demonstrate is they haven't done it to date. If they want to go back and try to do it, that's fine. But it does seem to me that... But you know, counsel, that courts like ours have a natural conservatism about reaching issues that we don't have to reach. We always will decide less rather than more. And if we can avoid constitutional questions, it's part of our prudential way we operate. Why would we reach out if we agreed that it wasn't a reasoned analysis? If you agree that the agency could give a reasoned analysis that would satisfy the requirements, and then why wouldn't we give them an opportunity to do so? Well, that's exactly why we make the first argument that this fails under the APA, because we recognize that there's a constitutional avoidance doctrine. And the court shouldn't jump to the First Amendment if it's convinced that there's a narrower basis on which to decide the issue. At the end of the day, though, in response to Judge LaValle's question, which is, do I think personally that you can regulate this kind of speech? Ever. Consistent with the First Amendment, the position is no. I don't believe so. But if the court wishes to give the Commission an opportunity to try to undertake to make that kind of a showing, if there's a bubble child out there and that child will be hugely disturbed by exposure to a single word, I mean, to me, that is utterly implausible. But I suppose that the Commission wanted to make some effort along those lines. And that's what you'd be looking for, their argument that they really are preventing harm to an identifiable population. That would have to be what they—under Turner, they have to sustain that. They cannot simply posit the existence of a harm and assume that whatever they're doing is responsive to it. They have to make a showing. The impact of this sort of an order has changed so dramatically. The potential impact has changed with the technology and the different means of communication. There was a time when radio and television—when regulated radio and television consumed a gigantic, almost the entirety of this kind of provision of entertainment or communication. Now, I don't know what percentage it is or how one would measure that, but with the cable channels that are unregulated and the Internet communication, it's more like the FCC, by its regulation, is simply establishing a zone in which relative or a certain degree of freedom from what they identify as indecency or profanity exists. But there are all these other zones which are completely unregulated. Right, and not only unregulated, but frankly indistinguishable from the viewer's perspective I would submit. Just last night as I was sitting in my hotel room— Would that change favor? That favors us, it seems to me, because— Why doesn't it favor regulating cable? Because, well, it may favor regulating cable, but I think it's going to be difficult to overcome the First Amendment— Is that a statutory authority or constitutional authority? Well, I don't think there's a serious First Amendment problem in trying to regulate cable, and I don't know that the commission is going to be prepared to pursue that. And then, of course, there would have to be movie regulation, too, I guess. Right, you're going to have to go across the board. You're not going to be able to parse out a specific area of the media. But the point I was going to make is that from the viewer's perspective, there is no distinction between a cable TV channel and a network channel. Well, there's the distinction that somebody who wants to have their children to better protect against their children hearing this stuff can simply not have cable, can have only regulated television in their house, or can somehow make rules in their house that their children don't watch cable, and don't watch internet stuff, but only watch. So it provides a vehicle with less constitutional impact. I mean, there's less suppression of speech if the only suppression is within this range of regulated network programming. There are two answers to that, Judge LaBelle. First of all, of course, those same parents obviously have access to the VCHIP as a technology to help regulate what their children can get to. The VCHIP doesn't protect against an unexpected fleeting expletive. Well, it can, depending on how the particular show is rated. But then we would get back to Fox knowing in advance that Cher would be so effusive in thanking her supporters. Well, the alternative would be obviously that you might impose a somewhat higher rating in order to anticipate the possibility even if you didn't actually believe. On anything that's live? I'm sorry? On anything that's live. I suppose you could go that far, although I think that would be way overkill given that an awful lot of live television doesn't, I think, raise a serious risk of doing it. But at the end of the day, the most obviously more appropriate response to all this is to recognize, and we're talking about First Amendment values here, and the question is not, is there some mechanism by which we ought to be looking for a way to regulate what we're talking about as First Amendment values, but rather place the burden on the commission to demonstrate that there is a compelling need and that their approach is narrowly tailored to achieve that compelling need. And I submit to you, they haven't undertaken to sustain that burden. Candidly, I don't believe that they could ever actually accomplish that under any circumstances in any event. Do you believe, even though the words were part of the FCC's decency regime for 30 years, that now when they go to enforce it, there really cannot be in decency regulation? It's important to be very clear about what their regime was for 30 years. Speech that is indecent must involve more than the isolated use of an offensive word. That's the policy that's been out there. They admitted that it's a changed policy for a while. They said it was always somehow lurking there. Well, they say that it's always been lurking there, but I can assure you from the network's perspective, it has never been assumed that there was any potential risk. And indeed, if you look at the 1987 Pacifica order, which specifically approves against an indecently charged the uses of the phrases, mother fucker, eat shit, and fuck the USA, and walks away from them and says those aren't indecent. Two observations. I don't think the FCC ever took the position, as you just described it, that in order to be indecent, it must involve more than a fleeting expletive. There was a likelihood that there would be no finding of indecentcy without repetition or something more than a fleeting expletive. But I don't think, correct me if I'm wrong, I don't think that the FCC took the position as categorically as you said it. But secondly, why does that matter if they've changed their position and if they have given a reason to explanation of the change of their position? I know you argue they have not, but if they have explained it in a manner that satisfies the legal requirement, why do we care if they've changed their position? Well, I take issue with the premise, because I do think that they have consistently taken the position that if all we're talking about is an isolated expletive, that that by itself does not rise to the level of indecentcy. Well, you said a factor in finding patent defensiveness would be repetition, but that's clearly correct. If there's more and more and more of it, that's more and more likely to be offensive. But can you point to me a place in writing in which the FCC said if it's only a fleeting, a single use of an expletive, it will not be found to be offensive? I mean, I don't know how to read it any closer than the Pacific, in case I'll read the language to you. If a complaint focuses solely on the use of expletives, we believe that under the legal standards set forth in Pacifica, deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecentcy. And have they ever tried to find liability for a fleeting expletive before Golden Globes? No. So it's not that they've written it, you say, and they never tried to enforce it. And were there fleeting expletives, by the way? Were there fleeting expletives on broadcast, radio or television in the years between Pacifica and Golden Globes? Oh, absolutely. Numerous times. As I said, I won't repeat the words, but the three words were in the Pacifica order that it gave rise to the language that I just quoted to Judge LaValle. I mean, so there's no question that the Commission has dealt with these issues. So the FCC didn't believe that the need to regulate was triggered by a fleeting expletive until the Golden Globes order. Right. And what it seems to me, the Commission's burden... What happened in those years? Well, I was just going to say that. That's the Commission's burden. Why is it that the first bite becomes overwhelming in 2004 when it was not a source of any concern to the Commission from 1978 until 2004? And that's, to me, the core APA problem. As I say, I think at the end of the day, you're not going to be able to sustain this under the First Amendment. Council, your red light has gone up, but I'm watching the time I will give the FCC an equal amount of time. I have two questions. Thank you. You rely heavily on the Supreme Court's decision in Reno versus ACLU, which found that the same language that we're talking about here when it related to the Communications Decency Act was unconstitutional. But didn't Reno distinguish Pacifica and it doesn't Pacifica? Isn't it still alive after Reno? Well, Reno clearly distinguished Pacifica, and I'm not suggesting the Court reversed Pacifica. We all agree that Pacifica still is. The law. But Pacifica didn't address the specific question here of the vagueness. I mean, that was not the issue in Pacifica. It was simply whether the Commission has any authority, consistent with the First Amendment, to regulate indecency that doesn't specifically relate to sexual conduct. That was the precise issue that was posed in Pacifica, and that's the only issue, frankly, the Court decided. It is an excruciatingly narrow holding, so it didn't really decide the vagueness issue. I would know it wasn't fleeting expletives in Pacifica. It was clearly not fleeting expletives. The next question, if you know, do you know how the networks decided what to broadcast in those golden years between Pacifica and Golden Globes, and if they do something different now? No, they're basic standards that all of the networks have, and they're actually embodied in the records. Have they changed? I mean, that's the harm that you claim. Are they doing self-censorship? Is there evidence that they have a different regime in deciding what they put on the air? Well, I mean, the clearest evidence of that is the 9-1-1 program, where that's a program. It's a Peabody Award-winning program that CBS aired twice, and then when they were going to air it on the fifth anniversary of 9-11, 10% of the United States audience was precluded from seeing that show because the affiliates panicked because of the use of expletives in that particular program. And the difference was pre- and post-Golden Globes. And pre- and post-Golden Globes. And that's what, you know, there is an entire inter-orum regime that the Commission has now created as a consequence of Golden Globes left in place for 32 months and a day without coming out with a response to the petitions for reconsideration. And they leave it out there for the networks to respond to. What is the status? Well, it's Golden Globes. I think NBC is the company against... Well, yeah. But all of the networks, indeed the entire... Have participated in your file comments. Everybody's participating in asking for the Commission to come out with a decision in that. Either of you have questions? Yes. I would like to hear you direct your arguments to the issue of the distinction in saving Private Ryan and that whole area of finding one use of expletives to be passable while another is not. Well, I think that the fundamental problem that comes out of the saving Private Ryan for the Commission is that the only rationale they've offered for why they've changed their entire regime is the notion that any exposure by any child to an expletive creates a nuisance. And the problem with that argument is that... And how do you justify ever allowing any expletives to be aired under any circumstances? It seems to me that the Commission really has two choices in front of it. It can either ban all... Or attempt to ban all expletives, which it seems clearly not willing to do. And I assume it doesn't believe it can consistent with the First Amendment. Or it can go back to the regime that it, in fact, put in place and that was approved in Pacifica, which talks about the kind of shock treatment that Justice Powell identified. And say, you know, when you have that, then we're going to enforce our indecency regime. Anything in between them, it seems to me, it creates nothing but a sensorial board with the Commission picking and choosing what it likes and what it doesn't like in a way that is inherently arbitrary, both as a matter of APA review... I think it's arbitrary and unjustifiable to distinguish between Nicole Richie and Saving Private Ryan? No, I mean, I don't think you can do that. And I think that's precisely what I was going to quote Justice Powell on that, because I thought he said the point quite well. I do not subscribe to the theory. And remember, he's the deciding vote in Pacifica. The justices of this court, and I would take that to the extent of the Commission as well, are generally free to decide on the basis of its content which speech protected by the First Amendment is most valuable and hence deserving of the most protection and which is less valuable and hence deserving of less protection. I understand the distinction that was made in favor of Saving Private Ryan was not based on value, but based on the question of patent defensiveness to the community. Am I not correct? Well, you can ask the Commission if that's the distinction they think exists, but I would read their distinction to have said that there's a broader value. Wasn't the explanation that in the context in which it was presented in Saving Private Ryan, viewers did not find it offensive in the same way that they would when somebody simply stands up at an award ceremony and says fuck them or whatever. Well, as I understand it, what they really say is that if you take out that particular language, you distort the message that's being delivered in Private Ryan. Integral, and it had artistic merit. That's their argument. So someone is deciding that we can't give those two words to the Nicole Richie performance. Someone decided that. That was an integral to her giving an award and it had no artistic merit. Right, but of course that's not the fundamental issue. That's only if you get to the point where you conclude in the first instance that an isolated expletive is itself per se indecent. Then you get to the issue of whether or not there's some particular reason to speak that way, but it does seem to me that at the end of the day all you're really doing is creating a regime that allows you to say this is better speech than this is. And while I can't imagine a regime that is more antithetical to the First Amendment values. If there are no other questions, I've had it to 10 minutes to your time and I'll give the. Thank you, Your Honor. And you've reserved five minutes. I have reserved five minutes. I will go into that. So I will give up to 29 minutes to the FCC. Thank you. May it please the Court, Eric Miller, for the Federal Communications Commission. All that is before the Court here is two adjudications. In both of these cases, the Fox Television Network broadcasts the F-word on primetime television. In neither case does Fox make any effort to defend or to justify the use of that language. So the only issue here is that raised by the conceitably gratuitous use of the F-word on an entertainment awards show when children are in the audience. Why isn't this just the sort of damocles hanging over the head of every broadcast station around? I mean, because the only thing that the Commission has decided in this case is that the. Those circumstances, the use of those words, which Mr. Miller has recited for us several times, is inappropriate and is subject to fine. Right. I believe it. Well, let me give you a hypothetical, Mr. Miller. This is being fed out by cable here and presumably the broadcast media can pick it up. And let's say they pick up the portion of Mr. Miller's argument or excuse me, Mr. Phillips argument. I'm sorry. Thank you. I won't repeat your brief since we have the words in the record here, but the use of the words fuck and shit are actually broadcast over six o'clock news tonight. Is that going to be subject to FCC hand slapping? I think plainly not for the reasons stated in this very order with respect to the early showcase. The Commission has emphasized that it will exercise great restraint when it comes to news programs. There is no news exception. You say there's no news exception. There isn't a news exception in the sense that you can't simply slap the label news on any broadcast and immunize it. Let me give you the hypothetical. Expand the hypothetical where Fox wanting to air so its viewers are reminded of exactly what's at issue here, pulls up the clips from the Billboard Music Awards, and shows those two instances of Cher and Nicole Richie as background or in conjunction with reporting on what's happening in this courtroom here today. I mean, to be indecent, the use of the language has to be painfully offensive, which under the Commission's analysis requires that it be presented. So how is a rebroadcast of the clip in the context of news any less offensive than it is in the Billboard Awards? Because in that context, as the Commission explained in the early show order, it's not being presented to pander or titillate or for shock value. It's being presented to informed viewers of what the case is about. Can I talk about the early show for a second? Because you just said that you can't slap the word news on anything. Okay, so this is what you found merited a news exception. It was a discussion of a reality show, correct? Now, that's not real in the sense of being real. It's an entertainment show, correct? That's right. And the exception that the FCC found for news was someone who had, as I understand it, been made to exit from that show, talking about people who were still left on that show. And you called that news? Just asking. Yes. The Commission is not... What wouldn't be news under that standard? Well, I mean, the Commission is not in the business of second guessing the journalistic and editorial judgments of broadcasters. The early show is... So why can't they call everything news? You just said you can't slap news on anything. And now you're saying you're not in the habit of second guessing, which is it? The test that the Commission articulated in the early shorter is that we said we would defer to CBS's plausible characterization of the program as a news show. Did you mean to suggest by the use of the word plausible that it was a stretch? Not necessarily. I think that word is just in there to emphasize that it is indeed a very broad exception. But questions of the breadth of the news exception are not implicated here where there is concededly, you know, no journalistic theory on which Nicole Ritchie's... That was an announcement of important music awards, somehow journalism? One could perhaps argue that, but Fox has not made that argument. It didn't say that before the Commission. It hasn't said that in this court. At every stage of this case, it has made no effort to defend the language that was used by Ms. Ritchie or by Cher. The year before. But you're suggesting if they had that might be plausible? It would depend on exactly what they said, but that would be something that the Commission would have to take seriously. It's significant, I think, that the Commission has never found a broadcast to be indecent on the basis of an isolated expletive in the face of some claim that the use of that language was necessary for any journalistic or artistic purpose. So are you suggesting now that this could save the FCC in decency policy? Are you telling the network so I think they're all here today to just make some kind of kakamemi claim and they'll survive? I mean, it's not necessary for this court to decide exactly what sort of justification would be necessary and how that factors in to the analysis of whether the use of the language is pandering or shocking or titillating, because in this case... Why has Golden Globes been pending for two years? Why does this case come where you rely on the policy enunciated in Golden Globes and find liability, although no forfeiture? Why does this case come to a court before Golden Globes itself, which has been moldering before the Commission for more than two years? I mean, the omnibus order was issued initially this spring as part of an effort to give guidance to broadcasters. Your Honor, is correct, the Golden Globes petition has been pending for a long time, but that has not caused any hardship to the networks because this case involves... Well, it is hardship because the very policy, it relates to the question I asked Mr. Phillips about our prudential rules. If we cannot reach constitutional issues, we certainly prefer not to, and that's the way we operate to decide the least amount. And in this case, it is not entirely clear that we must reach the constitutional issues, but I can't imagine how they would not be reached in Golden Globes, which enunciates the very policy that we're talking about here. Well, this rearticulates and restates and applies the Golden Globe policy. So we don't question that the Golden Globe policy and its validity is before the court here, and it's appropriate for the court to consider that policy in the context of its application to these two cases, which involved... Are we treating from your jurisdictional argument that you made in your brief that we only have jurisdiction to look at the two cases in which you found liability? Can we now? I think you just said that the Golden Globe's policy is before us. Well, the Golden Globe's policy was part of... I mean, by Golden Globe's policy, what I mean is the idea that the Commission has articulated that the fleeting nature of a reference does not immunize it from the possibility of indecency liability. That idea is part of the Commission's analysis in its adjudication of these cases. So when reviewing those adjudications, the court can look at the analysis that the Commission used to reach those conclusions. What we suggest is not before the court is issues like artistic justification, the issues raised in other cases that are still pending before the Commission. All that's before the court is what the Commission has actually done in this order, not what the networks are worried that the Commission might do in some hypothetical future order. But isn't that always going to be the case? I mean, you're going to decide one case and say, well, that's the only issue before you now. So you just have to look at how we've taken this policy, which you're saying we can't look at with either narrowly or broadly, and you're seeking to limit us to just looking at how it's been applied to the billboard issue here, billboard awards. I mean, we acknowledge that you can evaluate the Commission's reasoning in reaching the conclusion that it reached in this adjudication. So it certainly is appropriate for the court to consider the question of the validity of the agency's reasoning in concluding that there shouldn't be a per se categorical exemption for fleeting utterances. And we would suggest that that reasoning was valid because all that the APA requires is that the Commission acknowledges that it has changed course, which it plainly did, and offer a justification for the change. A recent analysis. That's right. And here the justification flows directly from Pacifica. Pacifica teaches that context is critical in a valuation. But there were all those years between Pacifica and Golden Globes where the FCC didn't feel compelled to sanction fleeting expletives, which I have to believe existed and were broadcast. I mean, there's nothing in the record on the extent to which they existed during that time. But what the Commission emphasized in its order here is that an evaluation of context is critical. And so therefore it's inappropriate to take what ought to be just one factor in the multi-factor contextual analysis, namely, was the statement repeated or was it isolated, and to elevate that one factor to determinative significance. Rather, it's appropriate to look at all of the factors together, just as the Commission does not have a rule that multiple expletives will necessarily make a broadcast indecent. An example of that is, I'd like to come back to the manner of distinguishing between circumstances where the use of expletives, whether fleeting or multiple, will result in liability and those in which they won't. And as part of that question, the issue of the context of news, the issue in the context of a film like Saving Private Ryan, and I'm trying to understand what is the basis on which the FCC makes the distinction. Is it a matter, as under the Miller v. California standard of the FCC making its own evaluation of artistic or social or scientific or some other kind of worth of the material, or is it a matter of the FCC making its attempt to assess community standards? What is it that offends the community and what doesn't offend the community? In other words, is the community offended by hearing these expletives in the context of a news, taking the hypothetical of supposing that a news program reporting on this very argument this morning were to take the clip of share and show it as what gave rise to this, there was a suggestion that that might not be, might not give rise to liability where the original did. So what is the route by which the FCC might arrive at those two conclusions? I think doctrinally it's part of the community standards analysis. It's not the FCC's evaluation of worth. It's not as in Miller v. California. We think this has or doesn't have artistic value. It's that we think the community doesn't find it offensive in the same way when they're seeing it exhibit as what is legitimately a news broadcast. What was the broadcast that gave rise to this big fuss? That's exactly right. And analytically the way that the commission deals with that is that patent defensiveness under community standards is evaluated with the three-part test. And one of the factors in that test is was the material pandering or titillating or presented for its shock value? And if it's part of a news broadcast or if it's like the language and saving private Ryan, it's not being presented to panda or titillate. It's the same word spoken by the same person and you can find that the context changes the shock value. That's right and that's exactly what Pacifica says, that the indecency regulation is conducted under a nuisance rationale and under that rationale context is all important. It seems to me to be quite reasonable as a hypothesis. I mean, for example, if one says, would you be shocked to hear that a judge of the U.S. Court of Appeals on the bench said fuck? Well, it might make a big difference whether it was in the course of this argument or in the course of a case that has nothing to do with the subject matter. And that's what the test recognizes. The additional justifications that the commission has provided for departing from a categorical rule is that, as Pacifica says, it's inappropriate to require children or the audience and especially children to take the first blow. What the networks are really asking for is... Should you make them leave before the news comes on tonight? Or do they not get a first blow? Does a child who ostensibly that you're trying to protect, does that child distinguish between hearing, share, say, I'm not going to repeat it, or hearing Judge Laval or just seeing the clip, does it make a difference to the child? Or isn't every one of them a first blow? Well, I think context might well make a difference even there, but more fundamentally, the government's interest is not unimportant merely because the government is not committed to pursuing that interest in all contexts, regardless of the cost. So you see a limit to what you can do to protect children in our society because there are countervailing values? Indeed there are, and that's part of the genesis of the policy restraint with respect to news programming. You understand the petitioner and interveners and most of the amicus, the amici, have a hard time understanding those boundaries because they are not objective, they're subjective, they claim. So you just said that what Sharers said on the billboard, award show, merited liability, but if it was played tonight on the news as informational, it wouldn't merit liability, and this seems to be a scheme that depends on what you think instead of having, I don't mean you personally, Mr. Miller, instead of having objective criteria that the petitioners can use in formulating their broadcast day. I think there are several responses to that, Your Honor. First, just as a preliminary point, the Commission didn't find that Sharers broadcast merited liability. I mean, there was no fine imposed here, it was simply declared. Well, I don't mean liability in the sense of a forfeiture. You found that it violated the Golden Globes order. Did you not? It violated Section 1464 and the indecency regulation. But to return to your question, whatever vagueness or vagueness argument there might be at the periphery of the indecency standard, those questions are not presented in this case because all that is at issue here is the concededly gratuitous use of the F word in an entertainment program. I thought you agreed early on in your time at the podium that the Golden Globes policy from which the liability in this case springs must be before us. Well, all that the policy says is that the policy that the Commission applied here is that the fact that an utterance is isolated will not immunize it from indecency liability. So that's the question of what context might make the use of this language non-indecent is not implicated here because there's no argument on the part of petitioners that there was anything about this context that would have justified this language. I would also point out that the standard of indecency which has to be applied by the FCC and which was applied in this case is exactly the standard that was upheld in Pacifica. And as this Court recognized in Dial Information Services, Pacifica forecloses a vagueness challenge to that standard because... Tell me why you think that's true. Because... Was there a vagueness challenge in Pacifica? There was a vagueness challenge asserted. I think everyone agreed what was said in those 12 minutes. And I don't think that Pacifica ever argued that they thought that that 12-minute broadcast wouldn't come under the standards as articulated. They had no reason to raise vagueness in that case. They were making a challenge to the Commission's definition of indecency. And part of their challenge was that it was unconstitutional under the First Amendment insofar as the definition of indecency extended beyond obscenity. But that's not the same as a vagueness challenge. They thought... I believe they thought that the 12-minute broadcast came within the definition. They didn't know if you had the right to impose that definition, but that's different than a vagueness challenge. This Court held in Dial Information Services that Pacifica forecloses a vagueness challenge to the very definition of indecency that is at issue here. Dial Information Services involved the telephone pornography messages. And the FCC used the same indecency definition there. It was challenged as unconstitutionally vague. And in Dial Information Services, the Court said that Pacifica forecloses... And was that central to the holding? Yes, that is the holding of Dial Information Services. And it is also the holding note of the Anbank DC Circuit in the Act litigation. Council, the FCC views their role as only policing sexual and excretory activities and organs. Is that correct? That's the definition. And I'm asking you this just because there were no studies, as we've said. Do you believe there are necessary studies of the harm that comes to children from hearing about sexual or excretory organs or activities? There were no studies attached. You think there are necessary? I'm just stating a fact. That's right. There were no studies before the Court in Pacifica. Right. I ask you, though, that there are so many studies that are available. Some of them, I'm sure, valid academic studies about the effect of violence on children. How come the FCC hasn't seen that when they're policing the airwaves and worrying about children? How come they have not paid any attention to that at all? I believe that there is a pending study of the issue of violence. But you're right that so far there hasn't been any rulemaking or adjudicative action that I'm aware of. Unless the violence was in the context of sexual or excretory organs or activities, then it would get your interest. The definition of indecency that was before the Court in Pacifica and the Court upheld is one based on descriptions or depictions of sexual or excretory organs or activities. What's the consequence? How is this argument affected, if at all, by the change in the universe resulting from the growth of cable and internet communication? Does that favor one side or the other in this dispute and how? I think it's not affected and for two reasons. First, even if one concluded that the rise of cable and the internet and other media had in some way undermined the factual premises that were the basis for the Court's reasoning in Pacifica, Pacifica remains good law and until the Supreme Court decides that it's time to overrule Pacifica, it's binding here. But beyond that, the Commission actually made specific factual findings in this case that the premises of Pacifica, namely that broadcasting is uniquely pervasive and uniquely accessible to children, remain true today. So for example, even though cable television is now very common, there are still a large number of broadcast-only televisions. A substantial fraction of children who have televisions in their bedrooms have broadcast-only TVs. And of course, parents who subscribe to cable can exercise some choice in their selection of a package. You should tell those parents to get the televisions out of the bedrooms. Well, the pervasiveness of broadcast is something that the Court recognized in Pacifica and in Turner. The Court recognized that broadcast television is a pervasive part of and makes a unique contribution to our national discourse. But don't you think a parent who allows a child to have an unregulated television in the bedroom without the parent there to monitor is accepting the risk of fleeting expletives? Since all the years between Pacifica and Golden Globes, that risk was present and is still present today, depending on context. What if that child watches the news tonight without a parent there to grab the television? I think, Your Honor, that that is essentially an argument against any regulation of broadcast decency on the theory that parents can simply not allow their children to watch television. It's not an argument against any regulation. It's just that I find it disingenuous to point to the fact that parents let children have televisions in their bedrooms that are unmonitored as a reason for the FCC to go galloping to the rescue. I think parents know what they're doing when they let a child have a television in the bedroom and they're not there to monitor what is on that television, ditto with computers. That may be the case, but the point of that factual finding to the FCC's analysis was simply that the rationales that Pacifica identified that broadcasting is uniquely pervasive and uniquely accessible to children remain true. And I'm asking you, don't parents know about the unique pervasiveness? That's really what I'm asking. You want to substitute. You want to protect those children even when their parents are lax. That is the judgment that Congress made in Section 1464, and that is the judgment that the court has upheld in Pacifica. Does the FCC, I think the answer to this is no, the FCC provide any kind of a means as a guard against a chilling effect that goes beyond appropriate borders for pre-screening. Can a broadcaster come to the FCC and say, we're planning to show this? Can we get a no action letter? Can we get some kind of a guarantee? The commission does not pre-review broadcasts or issue no action letters. No, I mean, the commission has never done that. Arguably, Section 326 of the Communications Act would prevent it from doing that. Does that would be censorship? It would arguably be a system of prior restraint if the commission were to do that. But I think it's significant that even after... What's the difference between that and saying, well, if you guess wrong, we've got you. Why isn't that a prior restraint? The commission has not at all adopted that policy, and I think this very case illustrates that in the commission's treatment of SHARE at the 2002 billboard awards. The only...the state of justification for not imposing a forfeiture in that case was that it was not clear at the time of that broadcast that it would have been actionable. So that's an additional safeguard. Now you've made it clear that it is actionable. Well, that's right. My point is just that the uncertainty is mitigated by the fact that when it's not clear that something would have been actionable, the commission will stay at hand and not impose a forfeiture. So that's some measure of assurance that's given to broadcasters. And broadcasters also have the benefit of the commission's orders, not just in this case, but in other cases. The commission, rather than drawing lines through rulemaking, has chosen as it's permitted under the APA and the Constitution to proceed through adjudication and to sort of fill in the pieces in a mosaic with individual adjudications that create a picture for broadcasters of what's allowed. An example of that is in the omnibus order. In this case, Part 3C of that order looked at a couple dozen broadcasts and found them not to be indecent. The order resolving complaints by the Parents' Television Council in 2005, which we said in our brief, also looked at another couple of dozen broadcasts and found them not to be indecent. So there's a body of precedent that gives guidance to broadcasters. I want to switch topics, if I may. The FCC appears to have very little respect for the TV rating system. That is, they don't think it's sufficient, and that's why you need to police the airwaves to make sure fleeting expletives don't harm children. Why have you never rescinded your finding that the rating system is acceptable under the statute? You never have. The statute called for the Commission within a year of the enactment of the statute to make a determination of whether the plan put forward by the networks was an acceptable one, and the Commission did that. But there's nothing inconsistent between a statement that the plan was an acceptable one in 1998 and the conclusion based on eight years of experience that the plan in practice has not worked very well. What if we were to draw the inference that the first time you finally levied criticism about the rating system is when you were called upon to defend this indecency regime, that that was the animating force of the criticism? In this case, the criticism was backed by specific factual findings about the frequent mis-rating of broadcasts. In effect, as you say, for eight years, and we never heard that, and you never asked the industry to improve the rating system, not once, until you were called upon to defend this new regime. That's right, but that doesn't really go to the question of whether the Commission's findings that the regime is ineffective are supported by substantial evidence, and the broadcasters here don't really make a serious effort. I mean, they cite to the 1998 determination, but they don't make a serious effort to challenge the evidence. It doesn't have been helpful if they were on notice that you found it so useless because they would have had all these years to improve the system and improve because the system is crucial to the v-chip, and that would have been perhaps a way to do more narrow tailoring of the broadcast mediums than to bar every fleeting expletive that is offensive to community standards. Perhaps it would, and perhaps in the future it would be possible with additional regulatory or perhaps technological developments to develop a more effective rating system. But that does not make it a less restrictive alternative because a less restrictive alternative has to be something that could actually be put into place that actually exists today. And whatever else can be said about the v-chip or a hypothetical improved v-chip, there isn't that alternative that actually exists today. Is there no further questions? I have no further questions. Thank you, Council, very much. Mr. Phillips, you've reserved five minutes for a battle. Thank you, Your Honor. Let me begin with all due respect to Mr. Miller. His argument in this Court is extraordinarily reminiscent of the approach that the FCC took in Pacifica itself when called to account for the broad positions that the Commission has adopted. The Commission, when it gets to court, immediately retreats to some narrower position, one he couldn't even sustain today. In their brief, they go to great lengths to say that there are two orders at issue here and that the underlying Golden Globes is not at issue and under any circumstances. And yet when pushed on it, obviously Golden Globes is at least at issue in this context because it is the only basis upon which the Commission can go down the path of going after fleeting expletives because the policy that precedes Golden Globes would consistently have permitted precisely what the network did in this particular case without any liability, whether with a forfeiture or without a forfeiture. And it seems to me that the Court has to take a very careful look at the risks that come from affirming the Commission under these circumstances and what will be poured into that vessel. If you read NBC's reply brief, it does an excellent job of saying that simply by giving some kind of leeway to the Commission in this context, you end up down the road with a set of rules that are even more terroristic than the ones that we had in place at the outset of this litigation. So that's the first point I want to make. The second point, Judge LaValle, is I want to go back to your question, which goes to sort of the core issue of when do you know that community standards tell you that something is patently offensive. And in candor, having listened to the argument on the other side, I have no clue at this point what it is that is offensive. We know that the Commission focuses on first blow. Now, that can't be the problem if the Commission says tonight you can broadcast this argument live and you can broadcast, share, and Nicole Richie presenting exactly the same words that were out there. That first blow argument is completely set aside. So how are we to know now under what circumstances the community, whatever that means, will find particular use patently offensive? And the answer is the only way you know that is after the Commission's five unelected individuals take a vote and decide up or down with respect to which of these statements are permissible. They have a lot of interaction with the entire world. Have they ever interacted in advance with your client? I'm still waiting for the call. The reality is I'm sure that the Commission has been interacting with the world for the last 30 years. I can't imagine that they were sitting in their offices up until 2004 not listening to anybody and then suddenly turned on the phone and started or maybe turned on the computer. I do think they probably get a lot more emails than they used to, but I'm not sure that that's necessarily a source of great interaction. At a minimum, it certainly doesn't remotely justify, and either as a reason to explanation or as a factual matter, a fundamental 180 degree change. And the other part that makes that impermissible is this is not just an APA challenge. It is that, to be sure. But we are talking about 180 degree change with respect to protected First Amendment activities. And so when you're going to change your enforcement approach and you're dealing with First Amendment rights, you have an even greater, the Commission has a greater burden in this context than in another context. And that burden is not satisfied by some allegation that this speech is gratuitous. That's not the issue. This is First Amendment protected. The burden is on them to demonstrate that there's some reason why that speech isn't allowed to be broadcast, and that's a burden they're unwilling to sustain. Their claim that we have never defended this speech is nonsense. That we have never defended this speech is nonsense. It is First Amendment protected statement. That's what the Court said in Pacifica. That's what the Commission has recognized for more than 30 years. Indeed, even in this order they recognize... Because it's indecent and not obscene. There's no allegation anywhere that what we're talking about is obscene speech. Exactly. And that's the fundamental difference. In the D.C. Circuit, this speech is protected by the fullest extent of the least restrictive means, compelling state interest standards. And nothing, and what the Commission has suggested to you, remotely satisfies that standard. Now to be sure, you can decide it on a narrower ground that this is simply arbitrary, that the creation of the Commission as a sensorial board, using the kind of loose standards they're using here, violates any notions of reason decision-making, that that's arbitrary as an APA matter. But at some point those two positions become dovetail, and it not only violates the APA, but frankly it violates the First Amendment as well. Unless there are additional questions, Your Honours, I would urge you to set aside the Commission's order. I have no additional questions. I want to thank you both for a lively and very helpful argument, and all of the participants for a wonderful briefing. Thank you, Your Honour. Thank you. We'll take a 10-minute adjournment now. The Second Circuit Court of Appeals hasn't yet announced when it would rule on this case. Coming up, President Bush talks about Iraq at his end-of-the-year news conference. And later, author Michael Lind with his assessment of U.S. foreign policy.