10-1293
IN THE
Supreme Court of the United States
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
Petitioners,
—v.—
FOX TELEVISION STATIONS, INC., ET AL.,
Respondents.
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
BRIEF OF AMICI CURIAE
YALE LAW SCHOOL INFORMATION SOCIETY 
PROJECT SCHOLARS, NEW AMERICA FOUNDATION, 
AND PROFESSOR MONROE PRICE 
IN SUPPORT OF NEITHER PARTY
d
PRISCILLA J. SMITH, ESQ.
Counsel of Record
NICHOLAS W. BRAMBLE, ESQ.
INFORMATION SOCIETY PROJECT
YALE LAW SCHOOL
319 Sterling Place
Brooklyn, New York 11238
(718) 399-9241
priscilla.smith@yale.edu
i 
 
 
 
 
TABLE OF CONTENTS 
TABLE OF AUTHORITIES..................................... iii 
INTEREST OF AMICI CURIAE ...............................1 
SUMMARY OF ARGUMENT....................................2 
ARGUMENT ..............................................................6 
I.    The Court Should Limit Its Inquiry to the 
Facts and Justifications of Indecency 
Regulations Rather Than Using This Case 
as a Forum to Examine Unrelated 
Controversies Concerning Spectrum Policy.
..............................................................................7 
A.  When the Federal Communications 
Commission Promulgates Indecency 
Regulations, The Scarcity Rationale Is  
Not Implicated..........................................7 
B.  Indecency Regulations Are Premised 
Upon the Rationale Recognized in 
Pacifica, Not the Scarcity Rationale 
Recognized in Red Lion and Other 
Precedents...............................................11 
II.  Despite Criticism, the Scarcity Rationale 
Now Occupies a Bedrock Role in 
Telecommunications Policy, Underlying a 
Wide Variety of Spectrum-Structuring Laws 
and Regulations..............................................16 
A.   The Spectrum Scarcity Rationale 
Supports Structural Regulations That 
Enable Wide Access to Diverse 
Information Sources. ............................17 
ii 
 
 
 
 
B.  The Spectrum Scarcity Rationale 
Supports Laws Providing Wide  
Access to Political and Educational 
Information. ............................................19 
C.  The Scarcity Rationale Enables the 
FCC and NTIA to Tailor Spectrum 
Policy to Evolving Technological and  
Economic Circumstances.....................21 
D.  The Court Has Imposed Clear Limits on 
the Role of the Scarcity Rationale.....23 
III. Questioning the Scarcity Rationale in Dicta 
in This Unrelated Controversy Would 
Result In Unexpected, Systemic 
Consequences to the Current Model of 
Spectrum Allocation, Potentially 
Undermining Decades of Precedent 
Extending Far Beyond the Repeal of 
Indecency Regulations..................................26 
 
CONCLUSION........................................................30 
 
iii 
 
 
 
 
TABLE OF AUTHORITIES 
Cases 
Action for Children’s Television v. FCC,  
58 F.3d 654 (D.C. Cir. 1995) (en banc) ............passim 
Arizona Free Enterprise Club’s Freedom  
Club PAC v. Bennett, 564 U.S. __,  
131 S. Ct. 2806 (2011) ..................................16, 21, 25 
CBS v. FCC, 453 U.S. 367 (1981) ....................passim 
Citizens United v. Federal Election Comm’n,  
130 S.Ct. 876 (2010) ...........................................20, 21 
Denver Area Educ. Telecomm. Consortium  
v. FCC, 518 U.S. 727 (1996)...............................13, 15 
Dickerson v. United States, 530 U.S. 428  
(2000) ........................................................................29 
FCC v. Allentown Broadcasting Corp.,  
349 U.S. 358 (1958) ..................................................18 
FCC v. Fox Television Stations, Inc., 556 U.S. __, 129 
S. Ct. 1800 (2009) .......................................................1 
FCC v. League of Women Voters of California,  
468 U.S. 364 (1984) ..................................................24 
FCC v. Nat’l Citizens Comm. for  
Broad., 436 U.S. 775 (1978). ............................passim 
FCC v. Pacifica Found., 438 U.S. 726  
(1978) ................................................................passim 
Forsyth County, Georgia v. Nationalist  
Movement, 505 U.S. 123 (1992) ...............................27 
iv 
 
 
 
 
Fox v. FCC, 613 F.3d 317 (2d. Cir. 2010) ................13 
Greater New Orleans Broadcasting  
Ass’n v. FCC, 527 U.S. 173 (1999) ...........................24 
Hague v. CIO, 307 U.S. 496 (1939)..........................27 
Kremens v. Bartley, 431 U.S. 119 (1977) .................10 
McConnell v. Federal Election Comm’n,  
540 U.S. 93 (2003) ....................................................19 
Motor Vehicle Mfrs. Ass’n v. State Farm  
Mut. Auto. Ins. Co., 463 U.S. 29 (1983). ..................11 
Mt. Mansfield Television, Inc. v. FCC,  
442 F.2d 470 (2d Cir. 1971)......................................17 
NBC v. United States, 319 U.S. 190 (1943).....3, 6, 26 
News America Publishing Inc. v. FCC,  
844 F.2d 800 (D.C. Cir. 1988) ..................................24 
Pacific Gas & Elec. Co. v. Public Util. Comm’n of 
Cal., 475 U. S. 1 (1986). ...........................................20 
Prometheus Radio Project v. FCC,  
373 F.3d 372 (3d Cir. 2004)......................................17 
Red Lion Broadcasting Co. v. FCC,  
395 U.S. 367 (1969) ..........................................passim 
Sable Communications v. FCC,  
492 U.S. 115 (1989) ..................................................14 
Syracuse Peace Council v. FCC,  
867 F.2d 654 (D.C. Cir. 1989) ..................................25 
v 
 
 
 
 
Time Warner Entm’t Co., L.P. v. FCC,  
93 F.3d 957 (D.C. Cir 1996) .....................................17 
Turner Broadcasting Sys., Inc. v. FCC,  
512 U.S. 622 (1994) ............................................14, 28 
 
Statutes, Regulations and Legislative Materials  
Communications Act, 47 U.S.C. § 315.....................20 
18 U.S.C. § 1464 .........................................................8 
47 C.F.R. § 15.5 ........................................................23 
Amendment of Section 3.606 of Comm’n’s 
Rules & Regulations, Sixth Report &  
Order, 41 F.C.C. 148 (1952) .....................................18 
Complaints Against Various Broadcast  
Licensees Regarding Their Airing of the  
‘‘Golden Globe Awards’’ Program, 19  
F.C.C.R. 4975 (2004) ................................................11 
Complaints Regarding Various Television  
Broadcasts Between February 2, 2002  
and March 8, 2005, 21 F.C.C.R. 2664 (2006) ..........11 
Complaints Regarding Various Television  
Broadcasts Between February 2, 2002  
and March 8, 2005, 21 F.C.C.R. 13299 (2006).........11 
Service Rules for the 698-746, 747-762,  
and 777-792 MHz Bands, Second Report  
& Order, 22 F.C.C.R. 15,289 (Aug. 10, 2007) ..........22 
Unlicensed Operation in the TV Broadcast Bands, 
Additional Spectrum for Unlicensed Devices Below 
vi 
 
 
 
 
900 MHz and in the 3 GHz Band, Second 
Memorandum Opinion & Order, 25 FCC Rcd 18,661 
(Sept. 23, 2010)...................................................27, 29 
 
Miscellaneous 
Sascha D. Meinrath & Michael Calabrese, 
Unlicensed “White Space Device”  
Operations on the TV Band and the  
Myth of Harmful Interference (Mar. 2008),  
available at http://www.newamerica.net/files/ 
WSDBackgrounder.pdf. ...........................................28 
Eli Noam, Spectrum Auction: Yesterday’s  
Heresy, Today’s Orthodoxy, Tomorrow’s 
Anachronism. Taking the Next Step to  
Open Spectrum Access, 41 J. LAW  
& ECON. 765 (1998)...................................................22 
 
1 
 
 
 
 
INTEREST OF AMICI CURIAE
1
 
Amici include Yale Law School Information 
Society Project scholars, the New America 
Foundation, and Professor Monroe Price, a First 
Amendment and media scholar.
2
   
The Information Society Project at Yale Law 
School (ISP) is an intellectual center addressing the 
implications of new information technologies for law 
and society. Marvin Ammori, a Visiting Scholar at 
Stanford Law School and an Affiliated Fellow of the 
Yale ISP, publishes in First Amendment and 
Internet policy. Nicholas Bramble, a Lecturer in Law 
at Yale Law School and Director of the Law and 
Media Program at the Yale Law School ISP, has 
written articles on First Amendment law and 
information policy.  
                                                        
1
 No counsel for a party authored this brief in whole or in part, 
and no person or entity other than amici and their counsel 
made any monetary contribution toward the preparation or 
submission of this brief. Counsel for the respondents, on June 
28, 2011, June 29, 2011, and July 1, 2011, and counsel for the 
petitioners, on July 8, 2011, have filed in this Court consent to 
the filing of amicus curiae briefs in support of either party or of 
neither party in fulfillment of S. Ct. Rule 37.3. This brief was 
written by Nicholas Bramble, Lecturer in Law at Yale Law 
School and Director of the Law and Media Program at the 
Information Society Project at Yale Law School, under the 
supervision of the undersigned Senior Fellow of the ISP, 
Priscilla Smith. Portions of this brief are derived from a brief 
written by Marvin Ammori and submitted to the Court in FCC 
v. Fox Television Stations, Inc., 556 U.S. __, 129 S. Ct. 1800 
(2009).  
2
  The amici participate in this case in their personal capacity; 
titles are used only for purposes of identification.   
2 
 
 
 
 
The New America Foundation is a nonprofit, 
nonpartisan public policy institute that invests in 
new thinkers and new ideas to address the next 
generation of challenges facing the United States. 
One of its major projects is the Wireless Future 
Project, which develops and advocates policy 
proposals to promote universal, affordable and 
ubiquitous broadband and improve the public’s 
access to critical wireless communication 
technologies. 
Monroe Price, now a professor at the University 
of Pennsylvania’s Annenberg School for 
Communication, was dean of Cardozo School of Law 
from 1982 to 1991. He is the author of several books 
on free speech and new media.  
 
SUMMARY OF ARGUMENT 
This case rests on a fairly narrow question 
concerning the constitutionality of broadcasting 
regulations designed to suppress and censor indecent 
speech. However, parties on both sides of this case 
have argued that this Court, in addressing such 
indecency regulations, should consider a much 
broader set of constitutional rationales for spectrum 
regulation. Broadcasters explicitly suggest that the 
“scarcity rationale” is properly before the Court. 
Amici submit this brief in support of neither party to 
stress that this overreaching is both unnecessary and 
unwise.  
3 
 
 
 
 
First, this Court’s decision in FCC v. Pacifica
3
 
squarely addresses the constitutionality of indecency 
regulations and does not rely on the scarcity 
rationale. The Court can and should review the 
continuing vitality of Pacifica without questioning 
other lines of this Court’s precedent wholly unrelated 
to indecency regulation. Simply put, the scarcity 
rationale associated with Red Lion v. FCC,
4
 NBC v. 
United States,
5
 FCC v. Nat’l Citizens Comm. for 
Broad.,
6
 and CBS v. FCC
7
 is wholly irrelevant to this 
case. The Court should follow its prudential rule of 
avoiding constitutional questions irrelevant to the 
case or controversy before this Court and merely 
address the indecency issue actually before the 
Court. 
Moreover, a dispute over broadcasting indecency 
regulations offers an extremely ill-suited forum for 
revisiting the scarcity rationale and needlessly 
hurling into doctrinal chaos all of the spectrum 
policy that rationale supports. This rationale has 
never been invoked as a basis for indecency 
regulation. Indeed, Justice Brennan’s dissent in 
Pacifica commends the majority, with which he 
disagrees, for understanding that the scarcity 
rationale is not relevant to indecency regulation. 
Nothing in the scarcity rationale underpinning Red 
                                                        
3
 FCC v. Pacifica Found., 438 U.S. 726 (1978).  
4
 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969). 
5
 319 U.S. 190 (1943). 
6
 436 U.S. 775 (1978). 
7
 453 U.S. 367 (1981). 
4 
 
 
 
 
Lion, NBC v. U.S., and other Court precedents 
justifies governmental decisions to engage in 
censorship or suppression of certain viewpoints.  
Casting doubt on the scarcity rationale would 
inject uncertainty into a wide variety of actions that 
the government adopted by government in reliance 
on that rationale. These actions, many of which have 
been upheld by this Court, include imposing 
ownership limits and universal service obligations, 
promoting diverse uses of spectrum, experimenting 
with the limited authorization of unlicensed 
spectrum usage, implementing new economic models 
for the allocation of spectrum, providing equal time 
for political candidates, and so on. These laws 
generally attempt to broaden access to spectrum 
rights for more speakers, and are easily 
distinguishable from the suppression of speech 
evident in indecency regulations. It is for this reason, 
in fact, that this Court has clearly held that 
indecency regulations do not rely on the scarcity 
rationale implicated by these other governmental 
decisions. 
The scarcity rationale forms the backdrop for all 
spectrum regulation, from television broadcasting to 
mobile Internet services. It suggests that because 
there are constraints on the availability and 
simultaneous usage of spectrum, the government 
must play a role in allocating rights to this spectrum, 
and the government may pursue allocations that 
ensure the widest availability of diverse and 
antagonistic sources of speech. Compared to other 
justifications for First Amendment scrutiny of 
spectrum licensing decisions, the scarcity rationale 
provides greater leeway for governmental decisions 
5 
 
 
 
 
to promote nondiscriminatory, universal access to 
diverse sources of speech.  
While scarcity was a rationale in the Red Lion 
decision, which upheld a fairness doctrine repealed 
almost 25 years ago, many other decisions also rely 
on scarcity. For example, the government is 
currently seeking to auction billions of dollars of 
spectrum both to address debt obligations and to 
transfer more spectrum from older technologies like 
broadcast television to modern technologies 
including mobile Internet access. When the 
government seeks to auction this spectrum, it will 
decide among a range of auction mechanisms 
(possibly including two-sided auctions with 
broadcasters) and will impose rules ranging from 
nondiscrimination rules to build-out and service 
obligations. Such decisions enable spectrum to be 
used widely and effectively for a range of purposes. 
Without the scarcity rationale, these speech-focused 
government regulations might be subject to intrusive 
judicial second-guessing.  
Even though, under this Court’s precedent, 
indecency regulation does not implicate the scarcity 
rationale at all, several parties before the Court use 
this appeal of an indecency order to argue that the 
scarcity rationale for limiting judicial scrutiny of 
spectrum allocations has faded in importance. But a 
case concerning indecency regulations presents a 
dangerously underdeveloped vehicle for evaluating, 
questioning, or updating the rationales underlying 
spectrum regulation. Given that scarcity currently 
serves as the primary justification for the 
government’s attempts to allocate spectrum and 
balance the claims of competing users, any effort by 
6 
 
 
 
 
the Court to evaluate this rationale requires more 
consideration than passing references in this case’s 
briefs could ever provide.  
Evaluation of this rationale should occur in the 
context of a proceeding that actually relies upon the 
scarcity rationale. Such a proceeding would offer the 
opportunity for greater analysis of the factual 
predicates for this rationale, and would give parties 
the chance to describe alternative rationales upon 
which the government might rely in allocating and 
structuring spectrum usage. 
 
ARGUMENT 
 
 Amici caution the Court not to undermine the 
continuing vitality of the scarcity rationale 
underlying Red Lion v. FCC, NBC v. United States, 
FCC v. Nat’l Citizens Comm. for Broad., and CBS v. 
FCC when determining whether the Federal 
Communications Commission’s context-based 
approach to determining indecency is 
unconstitutionally vague. The Court may wish to 
extend its analysis beyond vagueness in order to 
examine prior justifications for limiting the degree of 
First Amendment scrutiny applied to broadcasting 
indecency regulations. But in evaluating the broader 
constitutionality of indecency regulations, which 
have heretofore been justified solely by the 
pervasiveness of broadcasting, its intrusive nature, 
and its accessibility to children, the Court need not 
examine the rationales underlying other broadcast 
decisions.  
 
7 
 
 
 
 
 The scarcity rationale does not serve as a 
justification for indecency regulations and has not 
served as a justification for the FCC’s actions in 
these proceedings. To question the scarcity rationale 
in this case would cast doubt upon every spectrum 
license and jeopardize a broad range of complex 
spectrum-structuring actions entirely unrelated to 
the promulgation of indecency regulations. 
 
I. The Court Should Limit Its Inquiry to the 
Facts and Justifications of Indecency 
Regulations Rather Than Using This Case as a 
Forum to Examine Unrelated Controversies 
Concerning Spectrum Policy.  
 
This Court’s limited scrutiny of broadcasting 
indecency regulations has heretofore been justified 
by a set of rationales—pervasiveness, intrusiveness, 
and accessibility to children—having to do with the 
characteristics of broadcast media, not the scarcity of 
the spectrum on which that media is transmitted. 
The “scarcity rationale,” which has never served as a 
justification for indecency regulations, is not at issue 
in this case. The Court should confine its analysis of 
the constitutionality of indecency regulations to the 
actual rationales that have been used to support 
such regulations.  
 
A. When the Federal Communications 
Commission Promulgates 
Indecency Regulations, The 
Scarcity Rationale Is 
Not Implicated.  
 
8 
 
 
 
 
The government structures spectrum licenses 
in numerous ways. Typically, the government 
employs a wide range of spectrum allocation 
decisions, auctions, ownership limits, and 
authorizations of unlicensed use to ensure that those 
who obtain access to spectrum are not creating 
interference and are promoting wide access by the 
public to diverse and antagonistic sources of speech.
8
 
In a narrower range of cases,
9
 the government seeks 
to condition spectrum licenses upon an obligation to 
stamp out indecent or obscene speech.
10
 With the 
former set of actions, the government is attempting 
to add speech and speakers into the mix available to 
the public. With the latter set of actions, the 
government is attempting to remove certain kinds of 
speech from the mix.
11
  
 
Two different lines of precedent govern the 
constitutionality of these two different sets of 
governmental actions.
12
 Under Red Lion and 
                                                        
8
 See, e.g., CBS, Inc. v. FCC, 453 U.S. 367 (1981). 
9
 See, e.g., Action for Children’s Television v. FCC, 58 F.3d 654, 
658 (D.C. Cir. 1995) (en banc). 
10
 See, e.g., 18 U.S.C. § 1464 (prohibiting the broadcasting of 
indecent language). 
11
 See, e.g., Action for Children’s Television, 58 F.3d at 658 
(describing regulations that “ban[] all broadcasts of indecent 
material”).  
12
 Compare FCC v. Pacifica Found., 438 U.S. 726 (1978) 
(upholding the FCC’s fine for a radio broadcast of George 
Carlin’s “Seven Dirty Words” monologue) with Red Lion 
Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969) (articulating 
a less rigorous standard of scrutiny for broadcasting laws or 
9 
 
 
 
 
associated cases, constraints on the availability of 
spectrum justify governmental policies that ensure 
spectrum is used widely and effectively for a range of 
purposes. By contrast, under Pacifica and associated 
cases, the characteristics of broadcasting—including 
its pervasiveness, intrusiveness, and accessibility to 
children—have justified censorship of certain kinds 
of disfavored speech.
13
 It is important to maintain a 
firm distinction between these two lines of precedent, 
given that one is primarily about the addition of 
speech and serves to support numerous technical 
spectrum-allocation policies, while the other is 
primarily concerned with the suppression of speech 
in a narrower range of contexts.  
 
Yet broadcast network respondents, in their 
opposition to the government’s petition for certioriari 
in this case, indicated that they plan to bring up 
“fundamental questions” relating to “the underlying 
constitutionality of regulating broadcast speech” as 
well as “whether the Court’s decisions in Pacifica 
and Red Lion should be overruled.”
14
 ABC argues 
that “developments since Red Lion have rendered 
the predicate for that decision untenable today” and 
                                                                                                                  
regulations that promote the wide dissemination of diverse 
content). 
13
 Pacifica, 438 U.S. at 748-49; see also Action for Children’s 
Television, 58 F.3d at 660-61 (identifying governmental 
interests in “support for parental supervision of children” and 
“a concern for children's well-being” as sufficient to support 
indecency regulations).  
14
 Brief in Opp’n of Fox, On Petition for a Writ of Certiorari, No. 
10-1293, May 23, 2011, at 27. 
10 
 
 
 
 
suggests that the Court subject all “content-based 
restrictions on broadcasters’ expression” to strict 
scrutiny.
15
 The government itself attempts to link 
Red Lion and the spectrum-scarcity rationale to this 
case by describing scarcity as one of three primary 
justifications—along with the pervasive presence of 
broadcast media and the unique accessibility of such 
media to children—for limited First Amendment 
scrutiny of a requirement that licensees “accept 
content-based restrictions that could not be imposed 
on other communications media.”
16
 
 
In seeking review of these “fundamental 
questions,” respondents are attempting to bootstrap 
their opposition to the Pacifica indecency regime into 
a much broader attack upon the FCC’s ability to 
structure spectrum licenses. Petitioners, meanwhile, 
attempt to frame this case around fundamental 
questions about the sources of authority for 
broadcast regulation, rather than defending 
indecency regulations solely on the narrower 
“pervasive and uniquely accessible” rationales set 
forth in Pacifica. But both sides reach far beyond the 
facts of this case. The Court need not and should not 
deal with these broader theoretical questions when it 
is capable of tethering its analysis to the facts and 
rationales of the indecency regulations presently 
before it.
17
 This case concerns the constitutionality of 
                                                        
15
 Brief in Opp’n of ABC, Inc. et al., On Petition for a Writ of 
Certiorari, No. 10-1293, May 23, 2011, at 30, 32. 
16
 Pet’r’s Br. 42-44. 
17
 See Kremens v. Bartley, 431 U.S. 119, 136 (1977) (“[The] 
Court will not formulate a rule of constitutional law broader 
11 
 
 
 
 
regulations that suppress speech, not the 
constitutionality of rules and requirements that 
promote wider access by the public to more diverse 
types of speech. To support this distinction in its 
analysis of the constitutionality of indecency 
regulations, the Court should train its attention on 
Pacifica, not on Red Lion.  
B. Indecency Regulations Are 
Premised Upon the Rationale 
Recognized in Pacifica, Not the 
Scarcity Rationale Recognized in 
Red Lion and Other Precedents. 
 
Although Red Lion, NBC v. United States, 
FCC v. NCCB, and CBS v. FCC rest upon a set of 
rationales that have been the subject of strenuous 
academic debate, these rationales are simply not at 
issue in this case, and this case does not present a 
proper vehicle for questioning such rationales. 
 
First, the FCC did not rely upon the scarcity 
rationale of Red Lion in issuing the broadcasting 
indecency orders at issue here.
18
 This Court cannot 
                                                                                                                  
than is required by the precise facts to which it is to be 
applied.”). 
18
 See Complaints Regarding Various Television Broadcasts 
Between February 2, 2002 and March 8, 2005, 21 FCC Rcd 
2664 (2006); Complaints Against Various Broadcast Licensees 
Regarding Their Airing of the ‘‘Golden Globe Awards’’ Program, 
19 FCC Rcd 4975, at ¶ 3 n.4 (2004); Complaints Regarding 
Various Television Broadcasts Between February 2, 2002 and 
March 8, 2005, 21 FCC Rcd 13299, n.18 (2006). 
12 
 
 
 
 
supply and then evaluate a basis for the FCC’s 
actions that the FCC itself did not provide.
19
  
 
Second, this Court has explicitly rejected the 
FCC’s attempt to offer the Red Lion scarcity 
rationale as a basis for its indecency regulations. 
Justice Brennan, dissenting in Pacifica, approvingly 
described the majority’s rejection of scarcity as a 
basis for indecency regulation: “The opinions . . . 
rightly refrain from relying on the notion of 
‘spectrum scarcity’ to support their result. . . . 
‘[A]lthough scarcity has justified increasing the 
diversity of speakers and speech, it has never been 
held to justify censorship.’”
20
  
 
Third, this Court has cited three primary 
reasons for limiting its scrutiny of government 
regulation of broadcasters’ indecent speech: the 
broadcast media “have established a uniquely 
pervasive presence in the lives of all Americans,” 
“confront[] the citizen . . . in the privacy of the home,” 
and are “uniquely accessible to children, even those 
too young to read.”
21
 Pacifica thus squarely 
articulates the rationale for broadcasting indecency 
regulations. Because this case concerns the 
constitutionality of such indecency regulations, the 
rationales in Pacifica for limited scrutiny of 
indecency regulations are now open to reanalysis. 
The Court may wish to consider whether 
                                                        
19
 See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. 
Co., 463 U.S. 29, 43 (1983). 
20
 Pacifica, 438 U.S. at 770 n.4. 
21
 Id. at 748-49. 
13 
 
 
 
 
broadcasting retains its characteristics of 
pervasiveness, intrusiveness, and accessibility to 
children, particularly in light of the diminishing 
power of broadcasting in a world with countless new 
sources of information and media distribution.
22
  
 
But these rationales for limiting scrutiny of 
indecency regulations—pervasiveness, intrusiveness, 
and accessibility to children—are absent from cases 
that justify the constitutionality of spectrum 
regulations. Red Lion rests on a different set of 
bases: “the scarcity of broadcast frequencies,” the 
government’s “role in allocating” those frequencies, 
and the “legitimate claims” of competing “possible 
users.”
23
 In a case concerning the constitutionality of 
regulations designed to suppress and censor indecent 
speech, it is the rationales in Pacifica, not those in 
Red Lion, that are at issue. 
 
Fourth, the Court has articulated two starkly 
different approaches towards speech in Pacifica and 
Red Lion. The line of precedent associated with 
Pacifica is about censorship and suppression of 
                                                        
22
 See Fox v. FCC, 613 F.3d 317, 326 (2d. Cir. 2010) (“[W]e face 
a media landscape that would have been almost unrecognizable 
in 1978. Cable television was still in its infancy. The Internet 
was a project run out of the Department of Defense with several 
hundred users. . . . The same cannot be said today. The past 
thirty years has seen an explosion of media sources, and 
broadcast television has become only one voice in the chorus.”).  
23
 395 U.S. at 400-01. 
14 
 
 
 
 
indecent speech.
24
 In Red Lion, by contrast, the 
Court was not concerned with censorship of speech.
25
 
Red Lion focused on something different: the 
addition and diversification of speech.
26
 The point of 
Red Lion and associated cases is that when (a) there 
are constraints on the availability of spectrum and 
(b) the government is responsible for allocating this 
spectrum, the government can try to ensure that this 
spectrum facilitates diverse, antagonistic, and high-
value speech. Such cases pertain to communications 
laws and regulations that are designed to promote 
the availability of diverse and antagonistic sources of 
information and the wide distribution of this 
information to all members of the public.
27
  
 
Fifth, the two lines of cases rest on different 
and sometimes incompatible governmental interests. 
Pacifica and related cases set forth a governmental 
interest—protecting children from harmful 
information—squarely related to the regulations at 
                                                        
24
 See, e.g., Action for Children’s Television, 58 F.3d at 660; 
Denver Area Educ. Telecomm. Consortium v. FCC, 518 U.S. 
727, 743-47 (1996) (Breyer, J., plurality). 
25
 See 395 U.S. at 396 (declining to address whether the First 
Amendment authorizes “government censorship of a particular 
program”). 
26
 Id. at 401 n.28 (freedom of speech is not abridged where the 
government “directly or indirectly multipl[ies] the voices and 
views presented to the public.”). 
27
 See, e.g., Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 
663 (1994) (summarizing the underlying principle of 
communications laws and policies “that the dissemination of 
information from diverse and antagonistic sources is essential 
to the welfare of the public”). 
15 
 
 
 
 
issue in this case.
28
 The Court acknowledged a 
separate set of governmental interests in Red Lion: 
ensuring public access to “the widest dissemination 
of diverse and antagonistic sources,” allowing the 
public to “receive suitable access to social, political, 
esthetic, moral and other ideas and experiences,” and 
promoting effective use of the spectrum for 
communication.
29
 These governmental interests in 
promoting wide access to diverse speech are 
unrelated to the suppression of speech and the 
protection of children.  
 
Finally, the laws that have been built up 
around these two contrasting lines of cases differ in 
their focus and function. The constitutional holding 
in Pacifica justifies laws or regulations that allow 
the government to engage in suppression of certain 
content or viewpoints.
30
 In contrast, Red Lion 
justifies (1) laws structuring the media environment 
to ensure the widest dissemination of information 
from diverse sources (such as ownership limits, 
must-carry rules, and universal service mandates); 
(2) laws ensuring an informed citizenry through 
promotion of political, educational, or noncommercial 
information; and (3) spectrum policy rules governing 
technologies as diverse as satellite television and the 
wireless internet. The laws enabled by Pacifica 
                                                        
28
 See Sable Communications v. FCC, 492 U.S. 115, 126 (1989). 
29
 Red Lion, 395 U.S. at 360. 
30
 See e.g., Action for Children’s Television v. FCC, 58 F.3d 654, 
660 (D.C. Cir. 1995) (en banc); Denver Area Educ. Telecomm. 
Consortium v. FCC, 518 U.S. 727, 743-47 (1996) (Breyer, J., 
plurality). 
16 
 
 
 
 
target and restrict speech, whereas the structural 
laws and regulations enabled by Red Lion support 
wide access to diverse speech.  
 
 
II. Despite Criticism, the Scarcity Rationale 
Now Occupies a Bedrock Role in 
Telecommunications Policy, Underlying a Wide 
Variety of Spectrum-Structuring Laws and 
Regulations. 
 
If this Court concludes that justifications for 
limited scrutiny of indecency regulations are no 
longer sustainable, such a conclusion should not 
affect the constitutional status of laws and 
regulations premised on the spectrum-scarcity 
rationale associated with Red Lion. If anything, the 
reevaluation of the constitutional basis for indecency 
regulations—in conjunction with the repeal of other 
regulations that had the potential to reduce media 
diversity and accessibility—offers an opportunity to 
clarify that the rationales for censorious broadcast 
regulation are irrelevant to the rationales for 
spectrum access regulation in general.  
 
Red Lion and its associated line of cases serve 
as bedrock precedent for several classes of laws, all of 
which differ from indecency regulations and enable 
what this Court recently reaffirmed as a guiding 
First Amendment principle: “the unfettered 
exchange of ideas” in a variety of forums.
31
 Revisiting 
                                                        
31
 See Arizona Free Enterprise Club’s Freedom Club PAC v. 
Bennett, 564 U.S. __, 131 S. Ct. 2806 (2011) (citing Buckley v. 
Valeo, 424 U. S. 1, 14 (1976)). 
17 
 
 
 
 
or questioning Red Lion in this proceeding would 
have numerous unpredictable effects upon these 
foundational laws governing United States media, 
spectrum, and Internet policy. 
A. The Spectrum Scarcity Rationale 
Supports Structural Regulations 
That Enable Wide Access to Diverse 
Information Sources. 
 
The spectrum scarcity rationale underpins a 
wide variety of laws and regulations—including 
ownership limits, access rules, and universal service 
rules—that attempt to foster broad access to 
communications tools and broad distribution of 
information via those tools.  
 
Relying in part on the Red Lion interest in 
fostering diverse and antagonistic sources of 
information, this Court and lower courts have upheld 
broadcast media ownership limits
32
 and must-carry 
rights.
33
 In Turner Broadcasting Sys., Inc. v. FCC, 
which relied on the spectrum scarcity rationale,
34
 the 
                                                        
32
 See, e.g., FCC v. NCCB, 436 U.S. at 802; Prometheus Radio 
Project v. FCC, 373 F.3d 372 (3d Cir. 2004); Mt. Mansfield 
Television, Inc. v. FCC, 442 F.2d 470, 476-77 (2d Cir. 1971) 
(upholding financial interest and syndication rules and prime 
time access rules);  
33
 Time Warner Entm’t Co., L.P. v. FCC, 93 F.3d 957, 975-79 
(D.C. Cir 1996).  
34
 512 U.S. at 637 (“As a general matter, there are more would-
be broadcasters than frequencies available in the 
electromagnetic spectrum. And if two broadcasters were to 
attempt to transmit over the same frequency in the same locale, 
18 
 
 
 
 
Court held that “assuring that the public has access 
to a multiplicity of information sources is a 
governmental purpose of the highest order, for it 
promotes values central to the First Amendment.”
35
 
And relying on the separate Red Lion interest in 
promoting the wide dissemination of information, 
this Court has upheld the FCC’s attempt to 
implement universal service goals
36
 through its 
allocation of broadcast licenses.
37
  
 
Unlike indecency laws, these structural laws 
and regulations do not suppress disfavored content, 
and have been subject to only minimal First 
Amendment scrutiny. Questioning the spectrum 
scarcity rationale in this case would, as discussed 
infra, likely lead to unintended and wide-ranging 
consequences for a range of laws and regulations 
unrelated to those at issue in this case.
38
 
                                                                                                                  
they would interfere with one another's signals, so that neither 
could be heard at all.”).  
35
 Id. at 663.  
36
 See, e.g., Amendment of Section 3.606 of Comm’n’s Rules & 
Regulations, Sixth Report & Order, 41 F.C.C. 148, 167 (1952) 
(providing as the first three priorities of allocation: “(1) To 
provide at least one television service to all parts of the United 
States. (2) To provide each community with at least one 
television broadcast station. (3) To provide a choice of at least 
two television services to all parts of the United States.”). 
37
 FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 360 
(1958). 
38
 See infra Part III. 
19 
 
 
 
 
B. The Spectrum Scarcity Rationale 
Supports Laws Providing Wide 
Access to Political and Educational 
Information. 
 
Second, Red Lion retains precedential value 
for laws that seek to promote an informed electorate 
through encouraging the provision of wide access to 
political, educational, and noncommercial 
programming. Many such laws are currently in 
place.  
 
In CBS, Inc. v. FCC, the Court upheld the 
requirement that broadcasters grant access to 
federal candidates, because the rule promoted “the 
ability of candidates to present, and the public to 
receive, information necessary for the effective 
operation of the democratic process.”
39
 This Court 
has permitted governmental efforts “to enhance the 
volume and quality of coverage of public issues 
through regulation of broadcasting.”
40
 And Red Lion 
served as one basis for the implementation of a 
campaign disclosure requirement,
41
 which this Court 
has noted “can provide shareholders and citizens 
                                                        
39
 453 U.S. at 396.   
40
 FCC v. Nat’l Citizens Comm. for Broad., 436 U.S. at 800, 802 
(upholding broadcasting ownership limitations as reasonable 
means to “enhance the diversity of information heard by the 
public”).  
41
 McConnell v. Federal Election Comm’n, 540 U.S. 93, 237, 240-
41 (2003) (reasoning that record-keeping requirements would 
assist in determining whether “broadcasters are too heavily 
favoring entertainment, and discriminating against broadcasts 
devoted to public affairs”).  
20 
 
 
 
 
with the information needed to hold corporations and 
elected officials accountable for their positions and 
supporters.”
42
 
 
Even laws that more directly solicit diverse 
speech, such as equal time provisions, are dependent 
upon the scarcity rationale. Section 315 of the 
Communications Act, for instance, states that “[i]f 
any licensee shall permit any person who is a legally 
qualified candidate for any public office to use a 
broadcasting station, he shall afford equal 
opportunities to all other such candidates for that 
office in the use of such broadcasting station.”
43
  
 
Such laws are best seen as speech-promoting 
alternatives to the direct regulation of political 
speech. Rather than suppressing or chilling speech, 
Section 315, which seeks to give lower-cost time to a 
broader array of candidates and thereby increase 
decentralized public participation in the political 
process, helps ensure that no candidate or issue is 
“free from vigorous debate.”
44
 Impeding the operation 
of this law would harm discussion of public issues by 
narrowing the scope of political speech to those 
candidates and those issues that a small handful of 
broadcasters deemed worthy of airtime.  
 
                                                        
42
 Citizens United v. Federal Election Comm’n, 130 S.Ct. 876, 
916 (2010).  
43
 47 U.S.C. § 315. 
44
 See Pacific Gas & Elec.  Co. v.  Public Util. Comm’n of Cal., 
475 U. S. 1, 14 (1986). 
21 
 
 
 
 
As this Court has recently affirmed, 
“‘[d]iscussion of public issues and debate on the 
qualifications of candidates are integral to the 
operation’ of our system of government.”
45
 “The right 
of citizens to inquire, to hear, to speak, and to use 
information to reach consensus is a precondition to 
enlightened self-government and a necessary means 
to protect it.”
46
 Red Lion and associated cases 
support the creation of infrastructure in which this 
right can be effectively exercised. Questioning the 
scarcity rationale would risk dismantling this 
infrastructure by casting serious doubt upon laws 
and policies that ensure the doors to debate are open 
and the discussions taking place therein are vigorous 
and antagonistic. This case, narrowly concerned with 
the constitutionality of indecency regulations, does 
not represent a useful forum for considering such 
consequences.  
C. Red Lion Enables the FCC and 
NTIA to Tailor Spectrum Policy to 
Evolving Technological and 
Economic Circumstances. 
 
Third, beyond structural rules and political 
and educational access rules, a large number of the 
government’s spectrum policies also rest upon 
rationales articulated in Red Lion and associated 
cases. The FCC structures spectrum for private use, 
while the National Telecommunications and 
                                                        
45
 Arizona Free Enterprise Club, 564 U.S. at __, 131 S.Ct. __ 
(quoting Buckley v.  Valeo, 424 U.S. 1, 14 (1976)).   
46
 Citizens United, 130 S.Ct. at 898.  
22 
 
 
 
 
Information Administration allocates, assigns, and 
regulates government spectrum. The framework of 
Red Lion continues to allow these agencies to take 
into consideration a wide-ranging set of regulatory 
choices when adapting spectrum licenses to private 
and governmental parties. 
 
Red Lion enables the FCC to experiment with 
different possible technical and economic plans in 
structuring spectrum allocation and use. The FCC 
can tailor different licenses to different types of use, 
including terrestrial radio broadcasting, terrestrial 
television broadcasting, satellite television 
broadcasting, satellite radio broadcasting, wireless 
cell phone networks, taxi dispatching, public safety, 
unlicensed uses, and microwaves. It can assign 
licenses via comparative hearings, lotteries, auctions, 
and on a first-come first-served basis. It can exercise 
its authority to clear bands of existing users to 
enable new uses.
47
 
 
Beyond licensing, the FCC has used its 
spectrum policy authority to authorize a variety of 
“unlicensed” uses of spectrum. Rather than assigning 
licenses to particular users, these allocations of 
unlicensed spectrum rely upon “smart radios” 
possessed by end users that are capable of managing 
interference on their own using advanced computing 
                                                        
47
 See, e.g., Service Rules for the 698-746, 747-762, and 777-792 
MHz Bands, Second Report & Order, 22 FCC Rcd 15,289, 
15,296 (Aug. 10, 2007) (“The DTV Act set a firm deadline of 
February 17, 2009 for the 700 MHz Band spectrum to be 
cleared of analog transmissions and made available for public 
safety and commercial services as part of the DTV transition.”). 
23 
 
 
 
 
technologies.
48
 A large variety of laptops and mobile 
telephones today, for instance, are equipped with wi-
fi radios that enable wireless connections to Internet 
routers. The FCC has a minimal certification process 
in place to ensure that these and other devices can 
take advantage of the broad potential uses of 
unlicensed spectrum without creating interference.
49
  
 
As spectrum becomes increasingly important 
to the satisfaction of basic communications needs, 
and as control over existing spectrum becomes more 
concentrated, it becomes correspondingly important 
for the government to have the tools it needs to 
ensure broad and open access to this communications 
capability.  
 
It would be particularly unfortunate if, in a 
case about the constitutionality of broadcast 
indecency regulations, the Court inadvertently 
undermined the authority for these technical policy 
decisions and handcuffed the FCC’s broad, flexible 
mandate to regulate the spectrum to serve the 
public’s interest. 
D. When the Federal Communications 
Commission Promulgates 
Indecency Regulations, The 
                                                        
48
 See Eli Noam, Spectrum Auction: Yesterday’s Heresy, Today’s 
Orthodoxy, Tomorrow’s Anachronism. Taking the Next Step to 
Open Spectrum Access, 41 J. LAW & ECON. 765, 778-80 (1998) 
(discussing how to enable dynamic real-time markets in 
spectrum usage).  
49
 See, e.g., 47 C.F.R. § 15.5. 
24 
 
 
 
 
Scarcity Rationale Is  
Not Implicated. 
 
Nothing in the rationale for the laws and 
regulations listed above should be understood to 
justify laws that support the censorship or 
suppression of certain viewpoints. Were the 
government to use Red Lion as a pretext to target 
and suppress particular views and particular 
content, courts can rely upon heightened standards 
of First Amendment scrutiny for laws or regulations 
that suppress editorializing,
50
 commercial speech,
51
 
indecency,
52
 and particular political viewpoints.
53
 
This particular case—and the effort to evaluate the 
constitutionality of censorship and content 
regulation separately from the constitutionality of 
access and structural regulation—is in large part 
about ensuring that the government does not engage 
in censorship under the cover of decisions regarding 
spectrum licensing and access.  
 
Some have argued that Red Lion serves to 
justify viewpoint- and content-based restrictions of 
speech based on the Court’s approving references to 
the fairness doctrine in that case. But Red Lion is 
                                                        
50
 See FCC v. League of Women Voters of California, 468 U.S. 
364 (1984).  
51
 See, e.g., Greater New Orleans Broadcasting Ass’n v. FCC, 
527 U.S. 173 (1999).  
52
 See Action for Children’s Television v. FCC, 58 F.3d 654, 660 
(D.C. Cir. 1995) (en banc).  
53
 See News America Publishing Inc. v. FCC, 844 F.2d 800 (D.C. 
Cir. 1988). 
25 
 
 
 
 
not the fairness doctrine. Indeed, in Red Lion, the 
Court said it would revisit the issue of the fairness 
doctrine’s constitutionality if evidence demonstrated 
that the doctrine reduced, rather than enhanced, the 
quality and diversity of political coverage.
54
 When 
the fairness doctrine was later repealed, neither the 
FCC nor courts suggested that Red Lion itself should 
be overturned.
55
 
 
With the repeal of the personal attack rule 
and the fairness doctrine, the government took 
affirmative steps to ensure that spectrum access 
policies could be justified without reference to 
regulations that censor, target certain viewpoints, or 
seek to level a playing field.
56
 In separating its 
analysis of the justification for indecency regulations 
from any analysis of the spectrum scarcity rationale, 
the Court can continue to maintain this firm 
distinction between censorship-promoting rationales 
and access-promoting rationales. Maintaining the 
separateness of these rationales will ensure that this 
case does not inadvertently hinder Congress, the 
FCC, and the NTIA from tailoring longstanding 
                                                        
54
 395 U.S. at 393 (“And if experience with the administration of 
these doctrines indicates that they have the net effect of 
reducing rather than enhancing the volume and quality of 
coverage, there will be time enough to reconsider the 
constitutional implications.”). 
55
 See, e.g., Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. 
Cir. 1989). 
56
 Cf. Arizona Free Enterprise Club, 564 U.S. at __ (“We have 
repeatedly rejected the argument that the government has a 
compelling state interest in ‘leveling the playing field’ that can 
justify undue burdens on political speech.”). 
26 
 
 
 
 
public interest concerns to the challenges brought 
about by new technologies and communications tools. 
 
III.  Questioning the Scarcity Rationale in 
Dicta in This Unrelated Controversy Would 
Result In Unexpected, Systemic Consequences 
to the Current Model of Spectrum Allocation, 
Potentially Undermining Decades of Precedent 
Extending Far Beyond the Repeal of Indecency 
Regulations. 
 
Any reconsideration of the scarcity rationale 
for spectrum allocation and regulation should occur 
in the context of a proceeding that tees up the 
numerous complex issues that would arise in the 
event that the current rationale for spectrum 
licensing were undermined. These complex 
technological and legal issues include: whether 
current allocations of spectrum are defensible under 
strict scrutiny; whether any shift away from 
spectrum licensing should involve the assignment of 
property rights in spectrum or the facilitation of 
unlicensed uses of spectrum; how to handle the 
sudden jeopardization of thousands of spectrum 
licenses conferred by the FCC or held by the 
government; and other unforeseeable consequences 
of the abandonment of relied-upon rules of the road.  
 
Questioning the justifications for Red Lion, 
NBC v. United States, FCC v. NCCB, and CBS v. 
FCC in a case where these issues have not been 
properly briefed would both distract from the 
reevaluation of the constitutional basis for limited 
First Amendment scrutiny of indecency regulations 
and likely generate wide-ranging unintended effects. 
27 
 
 
 
 
 
First, if the scarcity rationale were deemed an 
invalid basis for spectrum licensing, any licenses to 
use spectrum to engage in speech would be subject to 
a more rigorous standard of scrutiny, given the 
general presumption that the government should not 
be in the business of licensing speakers.
57
 If the 
standard in Forsyth County were held to prevail, the 
government would need to defend each spectrum 
license under a standard of strict scrutiny, 
particularly where it was granting disproportionate 
benefits and spectrum to certain types of speakers 
over others. 
 
Under intermediate or strict scrutiny, the 
government might be unable to justify the current 
highly broad allocation of spectrum to broadcasters. 
Such allocations of spectrum to broadcasters include 
the vast “white spaces” of spectrum set aside to 
protect broadcasting signals from interference. The 
FCC has recognized that these “white spaces” could 
instead be used to provide high-speed, mobile 
Internet access to millions of underserved 
Americans.
58
A decision to continue to dedicate this 
valuable swath of spectrum to over-the-air 
broadcasting, which provides access to limited 
                                                        
57
 See Forsyth County, Georgia v. Nationalist Movement, 505 
U.S. 123 (1992); see also Hague v. CIO, 307 U.S. 496 (1939). 
58
 See Unlicensed Operation in the TV Broadcast Bands, 
Additional Spectrum for Unlicensed Devices Below 900 MHz 
and in the 3 GHz Band, Second Memorandum Opinion & Order, 
25 FCC Rcd 18,661 (Sept. 23, 2010) (updating rules authorizing 
the operation of unlicensed wireless devices in areas of 
broadcast television spectrum unused by licensed services).  
28 
 
 
 
 
programming upon which an increasingly 
diminishing number of Americans rely,
59
 as opposed 
to Internet access, which provides access to a wider 
breadth of diverse and antagonistic information 
sources, would be difficult to justify under any form 
of heightened First Amendment scrutiny.  
 
Even if the lesser standard of intermediate 
scrutiny under Turner were to apply, such a 
standard would subject the FCC’s decisions to 
constant scrutiny as spectrum licensees argued that 
burdens placed upon their speech by a variety of 
structural rules were disproportionate to the 
governmental interests thereby furthered.
60
 
Applying Turner to spectrum policy would mire the 
FCC in years of litigation with respect to decisions 
regarding spectrum allocation, licensing, 
authorization for unlicensed use, band-clearing, and 
conditioning existing licenses for data roaming or 
open access. Such action by the Court would disturb 
reliance interests based upon current spectrum 
allocation and structuring policies. Such action 
would additionally constitutionalize a framework for 
judicial supervision of FCC action that is far less 
conducive to public interest regulation and less 
                                                        
59
 A study from 2008 estimated that only 13% of American 
households with television service relied primarily on broadcast 
programming over the air, compared to 87% of households 
subscribing to cable and satellite television services. See Sascha 
D. Meinrath & Michael Calabrese, Unlicensed “White Space 
Device” Operations on the TV Band and the Myth of Harmful 
Interference (Mar. 2008), available at 
http://www.newamerica.net/files/WSDBackgrounder.pdf.  
60
 See Turner I, 512 U.S. at 662.  
29 
 
 
 
 
responsive to evolving industry characteristics than 
the current model of agency rulemaking. 
 
For example, the FCC is in the process of 
making difficult technical and policy decisions as to 
whether and where unlicensed uses of spectrum 
should be expanded and licensed uses reduced.
61
 For 
this Court to question the scarcity rationale and 
require that the government shift away from its 
current model for spectrum-allocation decisions 
would cast doubt upon the constitutionality of such 
ongoing regulatory processes. This judicial resolution 
of a highly technical issue regarding spectrum 
allocation would be troubling in its own right, and 
particularly troubling given that parties to a case 
concerning indecency regulations are unlikely to 
brief this issue—or any of the other issues described 
above—in detail.  
 
There may be some “special justification” in 
the evolving character of the technology and media 
landscape to support a departure from precedent in 
the context of broadcasting indecency regulations,
62
 
but this case does not offer a clear forum for 
examining the risks and justifications of a sharp 
departure from precedent in the context of scarcity-
based regulations.  
 
                                                        
61
 See Unlicensed Operation in the TV Broadcast Bands, Second 
Memorandum Opinion & Order, 25 FCC Rcd 18,661.  
62
 See Dickerson v. United States, 530 U.S. 428, 443 (2000). 
30 
 
 
 
 
CONCLUSION 
Upon reassessing the basis for limited 
constitutional scrutiny of broadcast indecency 
regulations, the Court may choose to strike down the 
government’s reliance on Pacifica to limit speech. 
But in fighting back this censorship, the Court 
should not reach beyond the immediate case and 
controversy surrounding indecency regulations and 
jeopardize the feasibility of an array of spectrum-
structuring laws and policies. 
 
Respectfully submitted, 
  PRISCILLA J. SMITH, ESQ. 
      (Counsel of Record) 
  NICHOLAS W. BRAMBLE, ESQ. 
  INFORMATION SOCIETY PROJECT 
YALE LAW SCHOOL 
319 STERLING PLACE 
  BROOKLYN, NY 11238 
 
Counsel for Amici Curiae 
 
September 14, 2011