have been full-time in the union for 30 years. >> larry cohen is president of the cwa. thank you for being on the program. >> thank you, a pleasure being with you. [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2010] . .

>> the court will decide if the f.c.c.'s indies eans policy on the broadcast of curse words during a live program violates the first amendment. this is the second time the court has heard the case. the first was in 2006. the attorneys and judges use words that some may find offensive.

viewer discretion is advised. >> here yes -- hui ye, here ye. the united states court of appeals for the second circuit is now open. >> thank you you. good afternoon. please be seated. we have one case on our calendar on remand from the supreme court. we will hear first from appellant responsibility ent respond ant, petitioner. >> good afternoon, my name is carter phillips, and i represent fox television as the petitioner in this case. the last time we were here, at the end of the argument, the

court in its opinion expressed skepticism that the f.c.c. would be able to defend its fleeting expletive rejim under constitutional attack. for better or worse, we are here to determine whether or not that skepticism may have matured into a firm conviction, that the constitution is violated by the f.c.c.'s -- >> it was clear the supreme court didn't reach the issue of the constitution a lot. >> the opinion from the court, judge, could not be clearer. the court took no position on that issue. it was very clear that the court was saying nothing about it -- >> counsel, you argued before the supreme court on state of mind, didn't you? >> we did. >> and the opinion as i read it from the supreme court doesn't mention that at all. >> no, it doesn't. >> do you have any idea why

this attracted so little interest? >> well, i think the court basically took the case up on the f.c.c.'s petition. the f.c.c. was very explicit in the petition and the way it presented the case on the merits, that it wasn't the issue evaluated on the act. since you raised the issue, in fairness to the court, obviously that is a non-constitutional alternative ground on which to set aside the f.c.c.'s order in this case. the order specifically states that fox television in these broadcasts violated section 1462 and both as a matter of statutory interpretation, that statute would require intent. even though it is not stated. the supreme court has a line of cases that state if the criminal statute is silent, you

will infer the requirement. and over and above the requirement embedded to begin with. this is a first amendment protected activity, and as such -- >> the f.c.c. says we don't need to reach that because they did not order any forfeiture. >> they say that, and i understand that argue, the problem is their opinion specifically says we violated section 1464. i think when a federal agency declares you in violation of a federal criminal statute, that is not a quibble, to suggest that that be set aside. and then in the world where this court has to evaluate the grounds by the commission given its actions, if you take that out of the equation, whether the commission would reach the same result, this can't can't assume it would be. it would ordinarily remand to assess the requirement. i know my colleagues would far

prefer the court not simply address that narrow ground and vacate for this specific outcome, that indeed there are broader principles at stake here. we think it is important the court decide the constitution a lot. >> finally and once and for all. >> as justice ginsberg said, hopefully the courts will be in a position to evaluate that first amendment issue. >> do you agree if we turn to the constitutional issue and pacifica is a case that minds us, that we would apply intermediate scrute -- scrutiny? >> i think it is dument to think of something as content specific and not-neutral as the commission has in place as subject to mere intermediate scrute scrutiny, but i don't think it makes a difference.

>> tell me where the remand order, the golden globes or the omnibus order. tell me where it fails no compelling government interest or not narrowly taylored. >> i don't think it seas either of those. i don't think there is significant injury to minors by a word. >> the supreme court said it is common sense that these words are bad for kids. >> i'm not saying the government doesn't have a legitimate state interest. it is important to vault what the court was saying. it is only considering the administrative procedure act in the case. there you are talking about the scrutiny to what the commission does. to say that is seas war the government would have to go in order to justify nonarbitrary

and contrapreeshes decision-making is a leap for me to conclude this is a con pelling state interest. i don't think it seas that and then on their narrowly tayloring, it is not narrow. there is the v-chip and the technology out there. but i think it is a mistake for the court to go through the intermediate standards. i think the more appropriate way to analyze the case is look at pacifica and second nice what the supreme court said that is what the first amendment admits. >> a prior decision of our court stated, indeed ruled, that the supreme court in pacifica had implicitly passed with approval on the vagueness of the regulatory scheme. what do you say about that? the dial information services

case. >> and the d.c. circuit has taken that view as well. are >> right. but -- >> i think the answer is that is not correct although i recognize this panel doesn't have the opportunity to revisit that issue. that is part of the reason why i think it is more sensible for this court to examine what are the outers limits of what pacifica allows as a matter of first amendment law. and if what the f.c.c. puts in place -- then it is unconstitutional. >> the case was in 1991, and it is pacifica case was way back in 1977. >> 1977. >> i wonder, even if the pacifica case did pass on the vagueness as it existed at that time, is it arguable that the vagueness is quite different now as the result of the

various rulings the commission has made in the past decade? >> well, i think there are two answers to that. yes, i think you could say that beyond vagueness, there is the separate first amendment principle of granting to the government unbridled discretion, how to apply -- >> at the time of pacifica, what the court ruled was that the commission is authorized to find indecent the filthy words, dirty words broadcast. there is a big difference between that and a passing remark that somebody is a bulls h -- [beep]. or [beep]. those are very, very different things. and the commissions arguably contradictory and bewildering

rulings as between words that are and words that are not seem to me to create a kind of bewildering vagueness which arguably results in a chill vastly beyond anything the supreme court ruled on in pacifica. >> well, that is absolutely clear, judge leval. if you read justice powell's concurring opinion in basica, he embraced what they were preparing to do was because he said the commission would narrowly define its enforcement efforts, that it would be extremely reluctant to find any form of indecease eans. when you look at this case, rather than going through strict versus intermediate scrutiny. the way to look at it is 0 say

clearly the first mend it's amendment precludes it is chill. the only thing they have to turn to is basica and there the supreme court is clear, that we are not inviting the commission to engage in a rofinge opportunity to seek out any kind of specific words that they find offensive. today the words are several. who knows what they will be tomorrow as the commission decides on a person-by-better than base basis. we sort of thought we knew what commission's rules might be, although i don't know i could go beyond the bewilderment rule, but it changes. now i don't have the idea what the new commission's idea may be. >> justice ginsberg thought they were tightly cabinned, her phrase. but the f.c.c. believes pacifica was just the beginning of a regulatory scheme.

that is what it comes down to, how we view pacifica. >> i think that is exactly right and the issue for you to resolve. if you look at the opinion on its face, particularly in the lite of the opinion of justice powell and the other. >> they made the majority. >> and therefore, what is the narrowest ground on which the constitution has been espoused, in a world where you have a very narrow enforcement rule' applied to repeated statements, intentional, deliberate, everything that depose with that, that is something the commission has the authority to pursue. i might fight that in the supreme court if i had a chance some day. but that is a long way from saying that is where we think the supreme court due the line. the other part of the case is nothing that has happened in the 30-plus years since pacifica was decided should move any court to say we should

be expanding the f.c.c.'s regulatory authority. >> actually, the majority opinion said that because broadcast is the only regulatory area, we should be expanding it. that is the same haven for kids. >> but you have to recognize what the court is analyzing in that is the administrative procedures. when you talk about that, sure, discussing it in terms of safe haven might be a rational way to proceed. but when you impose any kind of first amendment scrutiny to that, the notion of creating a safe haven for children and limiting others is something that the that the first amendment doesn't permit. >> basica has stated the question to be nothing other than where a broadcast can be found to be sbeesent --

indecent if it not obscene. >> i think the court ought to construe it as narrowly as it intended to be construed and what the f.c.c. has done here should be set aside. >> one of the things that the f.c.c. and the majority opinion below feared is that if leading -- fleeting expletives are allowed, we will be undated all the time one at a time. has that happened in the year since pacifica? >> no, and it is important to put that in context. it has been available to broadcasters. the restrictions on use of speech and other restrictions applied here simply don't exist whatsoever.

there is no evidence, indeed the networks are very careful even during those hours where they have free arena to use whatever langston they want, they still don't use that langston, not because of the first amendment, but simply as a matter of what does their audience want and how do the satisfy the greatest needs of the audience. that is precisely what you would hope the mirs amendment to do. >> thank you, counsel. three minutes for rebuttal. we will hear from co-counsel. >> thank you, your honor. >> good afternoon, your honor. my name is miguel estrada. i am from nbc universal and i am speaking for the intervenors. i have two points. the first one is that the law fullness of the policy is not

nearly the commission with respect to the [beep] shows. that is what this court saw and that is was the d.c. first act opinion, just ginsberg saw. both rejectsed the commission's effort to confine the issue of law fullness to merely the two broadcasts, because as is shown by the press enof the intervenors, the entire thrust of the commission's actions is to have a rule that they intend to apply to the broadcasting. >> they said they were issuing it as guidelines. >> correct. and so i am not nearly as confident as my brother, mr. phillips, that the court can simply dispose of the other question. of course it could, without addressing the constitutional

argument in the challenge by the intervenors. the second thing important to keep in mind is that the commission went to the supreme court in the pacifica case with repeated assurances that he would have a restraint enforcement policy. it is impossible to read what the supreme court wrote in the pacifica case without coming to the conclusion that the restrained enforcement policy was an essential ingredient for the court's to up hold by the barest of margins -- >> what if the present supreme court doesn't agree with that? what if the present supreme court doesn't agree it was a restrained policy and that was the basis of the five-vote majority? >> i don't think there is any basis for this court to conclude that even the present supreme court doesn't agree with that. if there were a question of counting votes, i will point out to you that the commission was very careful to insist on

the court dealing only with the question in which the sole issue was the bare ration a lot of its conduct, whether there was a sent yent being in the world who thinks this make sense. they actually passed that. but just as kennedy, who -- justice kennedy, who was a member of the court for ruling, pointedly declined to join part three e of the pin, which dealt with trying to reject the constitutional misgivings of the dissenters. and another member of the court, of the five, made it as clear as can be that he would rule for the networks on deprounds far broader than -- grounds far broader than those urged by the networks in front of this court.

>> one of the intervenors said if we follow justice thomas' opinions, we would take down red lion together with pacifica. do you agree with that? >> i think we all agree that the question of whether or not the supreme court will continue to follow red lion is for the superman. therefore, the red lion case does not enter in. >> is it a red herring instead of a red lion? >> it is probably that in this case, urns, because the very most that the commission gets out of that line of cases leading up to the pacifica case is intermediate scrutiny, and we can readly demonstrate that the commission's acts in this case flunth intermediate and

strict strict scrutiny. >> what is the gist of the argument that the commission's policy violets the constitution? >> -- kylates the constitution. >> well, at the get-go, it violets a restrict which is impermissible. it is behaved -- based on complaints to a rofinge band of sensors who are able through the commission to what amounts to a heckler's votto. and there are no standards as to how the commission comes to what the standards are that are applied. if you ask the commission today, the best they can say, and this is what their order says, they know what the community standards are because

they meet people. we the commissioners go out and free throw folks. that is not a judicially manageable standard. finally, once you look at what the commission has done on the entirety of what the policy has been since 2004, it doesn't change. the entirety of the policy boils down to its objective assessment of the commissioners' view of the artistic worth of or merit of the works. >> so that is why saving private ryan get in and the blues get out? >> right. but the entire system of an expert conferencor is alien to the first amendment. you could say that the policy that the commission urminged in the pacifica case was functionally different from the policy that the supreme court

struck down in the reno case because of the restrained enforcement policy, which did not go after lit uses and also gave heavyweight to the representative nature, now by discarding the restrained enforcement policy, the commission has essentially made its policy identical to the policy that the supreme court struck down in the reno case. >> it is the same language, isn't it? >> it is the identical language. and in the final analysis, you always have to consider this is a worse case than reno. in reno, the supreme court was willing to strike down the policy so framed because of a fear that it would invite arbitrary enforcement. here we have a number of years of a demonstrated track record of inarguable arbitrary

enforcement. we have a track record where the best a court can say out of the work load of the commission is they seem to like spielberg but don't much care for score saze -- score say si. there is a whole second -- >> i was wondering. it seemed to me as i entered the argument today on the constitutional issue that to me it seems that the soft underbelly of the commission's position has less to do with the things that you are talking about than with the vagueness and confusing nature of what

they have laid down with the consequent chill which, when the commission is applying, is prepared to apply forfeitures to a single utterance and to a fairly trivial and arguable yooges would lead them to suppress a variety of things for which there is no earthly reason to censor, such as sex has been a primary preoccupation of people, and human thought forever. shakespeare's plays are full of references to sex. can a broadcaster make reference to that with confidence that this commission would not find it indecent?

>> no. we have a record here that a broadcaster cannot play that the commissioner has ruled are not indecent. the evidence of the chill in this case, involving even saving private ryan, involve a number of cases in which broadcast have been put on television without incident are now turned down by the affiliate because of the enormous pressure of the astronomical fine and the lack of predictable of the commission is such that it is impossible to determine what the standards are or what the consequences are. >> if the commission were to say you can't say -- you can't broadcast the following list of words, except that you may be able to broadcast some of them in dramas about patriotism during a war, but you can't do it in programs about jazz

musicians. threat broadcasters would know what they can do and can't do. there might be a different argument. there might be an argument that it was arbitrary and no rational basis for it, but at least they would know what they can and can't broadcast. under the present, i wonder whether they can have any idea what they can broadcast? >> no. in fact, we have said to this court and to the supreme court, and we expect well say to the supreme court again in due course that the system is untenable for all those reasons. there is also the fact that we haven't even discussed today that the technology has advanced so far that the need for this sort of intrusive conduct on the part of the government is really nonexistent. >> if we were to leave this policy in place, would it be the end of any live broadcasts

of breaking news? >> well, certainly you would have to accept whether it is a lit end, it would deter coverage of news and other live events, and that it would be felt more harshly in those areas where you need that local station. one of the ironies of this policy is that in any other context, the commission urges localism -- >> but they don't use those words in small towns. >> well, there are some who think that, judge. wells have a whole track record in front of the commission and in front of this court involving the small town football team. this is one of my client's

cases, who came up to victory, to beat notre dame. and in the thrill of victory said in the thrill of victory i am so [beep] proud of this team, and the commission did not think it applied to that, and the letter came in the mail. so the notion that you can leave this policy in force in any way, shape or form and not be prepared to except that you are sanctioning censorship and constitutionally covered speech is unfounded. thank you. >> thank you, counsel. you have reserved some time for rebuttal. >> may it please the court, jacob lewis for the f.c.c.

>> mr. bruce, your clients were just described as a ruofing band of censors. >> thank thank you, i am happy to be here. i want to present this and ask if the f.c.c.'s position was still the same. i hypothesized this was being broadcast over which the f.c.c. had authority within the hour sarah of the regular news program, and the use of the f word and s word did take place previously, although not in the supreme court. and then i hypothesized that the person reporting on this case displayed to the viewers and the listeners the pack story, and actually broadcast clips of cher and nicole richie

from the golden globe awards, and i was told that would not be a violation of the f.c.c. policy even though it was the same language and incident that gave rise to the order. is that still the f.c.c.'s position? >> that is still the f.c.c.'s position. >> what is the basis for that? >> there are two distinctions between doing a news show. one, the clips would be broadcast as part of a news show. >> is there a news exception? >> there is not a news exception, but the commission bends over backwards -- >> do we rely on the commission bending over backwards? >> broadcasters have been able to rely on the fact that with regard to news programming, and long ago there was something that n.p.r. broadcast the tapes of john gotti with expletives.

>> what if mr. estrada's example, and i am not aware of it, i missed it i guess i will say. >> they have never issued an order. i think he was referring to a letter of inquiry. >> so no pent was assessed? -- so no penalty was assessed or contemplated. let's say that was on a sports broadcast and the coach came up and said that. abc news sports, section of abc news. today in a miracle, notre dame got beaten and the coach said, and then they broadcast it live? >> the commission has relied on responsible journalistic practices. i'm not sure how listed your hypothetical to be.

one wouldn't have to report the expletive to report the victory. in fact, the broadcasters do apply their own standards -- >> but it was live. as i understand it, this was a live brought cast. >> i thought your honor's hype they will -- >> my hype thet colorado was rebroadcast. >> at some point the broadcasters apply their own standards, and if they nonetheless decided there was a crucial aspect of the reporting that required the broadcast of the expletive, then they would have a an argument. >> in the words of justice ginsberg, they had emotive content? >> i don't think the commission disputes that. even offensive words have an emotive content. the facts of this case are quite different, and i think the broadcaster's

constitutional challenge is foreclosed. to the extent they are challenging the commission's authority to elaborate on indies eans regulations. >> wasn't it tightly cabinned in the words of justice ginsberg, and weren't the five votes achieved including two people, two members of the court, two justices, who only voted with the majority on the basis of a narrow reading of the case in front of them, the shock value of george carlin? >> there is no question that pacifica itself involved a narrow set of facts. >> every case involves a narrow set of facts. >> well, particularly -- and that is true. and this case is no exception i

would like to add. >> but i think your point -- >> i'm sorry. >> go ahead. >> don't you agree the policy is before us as well? >> the change in policy, a relatively modest change that eliminated immunity for fleeting. >> i don't that is the change necessarily being talked about. the change in policy since pacifica has been gigantic. >> well, i'm not sure that is the case, your honor. maybe it is time to talk about the vagueness question, but the definition that the commission ememploys of patently offensive, description of sexual or other organs, that is the same definition applied in pacifica. our first point is the vagueness challenge is foreclosed by precedent. as this court recognized in

dial information services, and as the d.c. circuit recognized, the supreme court application of the definition in pacifica implicitly holds that that definition is not so vague that you can't apply it and therefore unconstitutional. but things have only gotten better in terms of guidance from the commission since pacifica. the commission issued industry guidance in 2001, which goes through many prior positions and lab rates on its framework. in a number of cases, including a number of cases in this very order. section 3-a sets forth a number of cases where the commission has found it is not indecent. it has gotten guidance on specific days law -- >> is this the case where you found the person who said

bull-[beep] was not label to forfeiture because it was a news program? >> well, i will admit that was the commission bending over backwards to defer to cbs' plausible characterization of the show. >> but do we make a policy based on your characterization of the f.c.c. as bending over backwards? doesn't the first amendment rely on us to rely on you bending over backwards, which is a funny image. maybe even close to the line. already i don't think so, your honor. the commission analysis essentially diverse to broadcasters, in light of the first amendment values concerned with news programming. i don't think the broadcasters

have any reason to complain about that policy, and i don't think that is particularly vague. they get a break. that was not really a news segment. they get a break in cases -- >> what about the next time when they don't get a break because the commission thinks talking about survivor is not real news? >> then they will have an argument that the commission didn't explain a change in its policy. the fact is i don't know that that particular example makes the policy any more vague. even apart from the precedent, the broadcasters are being a little bit oblivious i guess to their own standards. here we had a case where nicole richie and cher got up to the podium and uttered the f word and the s word. fox wasn't paralyzed in knowing

whether that comported with its standards or. they had an unself play system in play. they tried to bleep out the word, and they missed it in both cases. in later instances, they omitted it. they understood in that kind of program where there was a number of children in the audience -- >> but your position would be substantially different, it seems to me if you were coming to us saying we have made very clear you can't use the f word and you can't use the s worth, and there are a few other words you can't use as well. but that is not what you have done. what you have done is the commission says in addition to the words you can't use, unless it is in a patriotic context, there is this vast miasma of

unspecified things and that if they per contain in some way to sex or sexre torii -- correction corey tore functioning, can bring fines on your head. why doesn't the vagueness of that, the capacity resulting from the vagueness and the catastrophic possibilities resulting from the imposition of forfeit ures, having the capacity to chill all sorts of references, indirect, direct or otherwise to sex or to sexre tore -- excretory functions --

>> you are talking about pambinga. >> basica was extremely narrow, and if you haven't read it enough to know how many times the judges said we are only talking about this case and this extreme thing, read it again. stop telling us pacifica ruled on it. it didn't. give us arguments other than that one. >> all right. the supreme court said the demigs' decision to look at patent offensiveness fits with the context-based approach we sanctioned in pacifica. that is at page 1812 of the court's opinion. >> may i remind you what my question is? why doesn't the capacity to chill resulting from the vagueness and all-encompassing potential finding of forfeiture

because of some reference to sex or other functions, why doesn't that amount to censorship? >> there is no dispute that the broadcasters knew about the utter ands of the f word did not >> we are not just talking about the these two carses. we are talking about the broadness of the commission's menace. >> and the commission has tried to provide guidance over the years. >> has tried to narrow? >> tried to provide specific guide ands -- >> what is the guidance as to whether it would be decent or indecent? >> it sets forth a framework. it has to be sexual or other depictions. >> it set three standards. they were one, explicitness of the reference. two, amount of repetition, and three, whether it was pandering.

ok. then in total disregard of that, it goes and imposes, not forfeitures, but findings of violation whether there is neither explicitness of references because calling somebody that is hardly a something like that. there is no repetition or pandering. how does that guidance help? >> to be fair, your honor, the commission explained in this case, which did not involve the early show, but the utter ands of the -- the utterance was. >> richie was, but the others were not. none of the four or five others, bono, the early show, cher. none of those others are

repeated, they are not scomplitted, they are not explicitly referring to sexual or other functions. >> the networks are not disputing that the decision in this case that the commission reasonable -- reasonably explained that. >> in which case? >> in the case you have before you of nicole richie and cher. >> it is wide open. >> but i don't think the parties would agree with you that each of these instances meets it. >> if they didn't agree, they could have run an a.p.a. argument. they have never done that. let me get what to your honor's question. the commission tried -- in 1987 enenforced a policy that essentially said if you utter the seven words in the carlin

monologue, we will go after you. otherwise we take a pass. we found that enforcement policy didn't comply with their responsibilities. the creative community, which includes radio as well as television simply came up with highly offensive utterances that didn't use those words. >> such as? >> well, i can't repeat all of them. i can't remember all of them. >> give me one or two? >> it wasn't dick-head. >> no. descriptions of sexual activities that were explicit but didn't use the f word or s worth. the others were highly offensive and the commission understood that simply limiting its policy had a tremendous cost with regard to the effective nets doctor

effectiveness of enforcement. >> we are back to the f word and the s worth. >> if the commission say by the way, we will flip things, that is one of our points. the fmp word and the s word in the carlin monologue, the broadcasters have been on notice and their policies are to rate such shows or to delete the material. the commission's regulations have a safe harbor for programming after 10:00 p.m. or before 6:00 p.m. they simply have to put the programming in the safe harbor. >> you tell us in your brief that the purpose of the commission's policy is two-fold. to protect the physical and psychological well-being of

children, and to enforce the parents' authority over their household, is that correct? >> yes. >> my first question is what are you protecting children from? protect their physical and psychological well-being from what? >> the idea is the same point made in basica is a broadcast with indecent description or language can enlarge a child's vocabulary in an instant. the courts have found that to be a harm. courts that have considered this issue since have found that. the supreme court last term may specific the point that you don't have to prove a scientific -- >> common sense. >> exactly. it is common sense. >> do you believe they don't use these words in small town? >> i'm not sure i have any -- >> but that is also commen

sense, i guess, too. >> satisfies to know -- i am quoting from the supreme court's opinion mimic the behavior they deserve. programming with one-word indecent scomplitiffs will produce children who do that. that has been the sufficient basis for constitutional action in authorizing the commission to regulate broadcast inin decency. >> under an a.p.a. analysis, not under a first amendment analysis. >> yes. >> which is more denchings, would you agree? >> some of the statements the court made last term relate equally to the first amendment

issue? >> really? i thought they didn't touch the first amendment. this is where on this harm question, the court says we have a case that talks about that the government interest and well-being -- they are quoting from begins aboutberg, which was a first amendment says, justifies the regulations. in the ginsberg case didn't require a show of harm. if they don't require certain criteria, neither does the a.p.a. the court was looking to the first amendment law. >> it seems to me you have just contradicted yourself. unless i misunderstand you, you told me that when the demigs tried to rely on listing words, then prod casters went around

it by researching to sex without using those words. are you trying to protect children from hearing about sex or certain words? >> the regulation is of indies si. an indecent broadcast can consist of the repeated utterance of words, as it was in the carlin monologue. or it could be an actual depicks. >> how are you protecting the children from those words when they come up on the 6:00 news? >> i think there are countervealing -- counterveiling interesting at hand. >> how do you protect them? >> but the context is different. >> how do we know? >> but it is not different. they are seeing the very film that gave rise to this case. it has been in the f.c.c.,

here, in the supreme court and back here and as mr. estrada suggested, maybe it will go back up to the supreme court fen. >> the parent can say i am not going to allow my child to watch the news because there may be indies si or other things inappropriate for the child to watch. the fact that broadcast programming is regulated gives parents a tool, a place to go so they can be sure -- >> so why doesn't the v-chip do this? why doesn't the v-chip permit parents to disable the receipt of television that doesn't have the kind of content they want to watch. if there is a football game where there is a risk that the microphone may overhear a

player something offensive, or if there is a news program where people are going to appear, and you can't know what they are going to say, they can say sorry, kids, you can't watch that. you can only have -- only watch ones that have preapproved content. >> the v-chip is a voluntary rating system. >> it can't apply? >> this was a vol tore rating system in the industry. >> but it can apply, can't it? isn't it possible to require of broadcasters that they identify shows on which there is going to be no control because it is a live show with participants? that would permit people to obscure those? >> under the --

>> or block it. i don't know that the commission has the authority to do anything, but they could secure their scomplines with it. >> putting that exemption aside, in this case it was entertainment programming. the programming was misrated. this is an interactible problem right now. >> but that is not my question. my question is can't it be devised in such a manner that if parents don't want to run the risk -- if they are never going to let their children outdoors for narrow that i might here a nasty, they may not want them to watch television because they might hear a nasty. and isn't it possible to schedule the v-chip to label the show, so it could be

blocked? is that not possible? >> technological, anything is happen. >> if they know it is live, isn't that enough? you can't control cher. >> let me point out something else. the broadcasters would not be in this if their audio delay system worked. there is a way to put an effective audio delay system in. the record here shows that -- >> so you are saying that a huge network can afford any amount of personnel necessary. what about a local broadcast of the sort justice briar specks about? what about a small broadcastor barely getting by and it sets up a camera and a microat a

public hearing. how is it going to ensure that somebody doesn't say something that you would find offensive? >> perhaps in that sick stance the local broad katz would have an argument to the commission that they had taken reasonable and diligent measures? >> what reasonable? they just set up the camera and the microphone. >> one thing -- >> core first amendment values to broadcast a zoning thing? >> sure, absolutely. >> what if someone says this zoning plan is messing up my house? >> the commission habit addressed the situation of a broadcaster had no other means to impose an audio delay. but this case illustrates did not >> we are talking about the policy.

you keep talking about this case? >> the policy takes acounsel of the quet its. >> isn't the problem -- or the problem at least as i understand it is that the equities themselves of vague so that the broadcasters aren't sure where the line is. >> but yours, i don't think the lines are vague with regard to audio delay at all. networks have deployed an audio declare mechanism for decades. they had one here, but they knew it was uneffective. it didn't work in the 2002 billboard awards, and now they use it in 2003. now they employ more effective resources to employ an audio delay. >> if i am a network, can i broadcast a program where there is a debate over whether young people should remain a virgin,

pure, until marriage, in which one act in favor it and the other against? or say they are experts, and they are going to discuss this in the most serious down sides? can i broadcast? >> i suspect you can. >> you suspect i can? that is very reassuring. >> you could point to a number of decisions that talk about that in the context of sexual education. >> but the best you can't answer my question is you suspect it can. i agree with you, it is the best way, because there is no way of telling, is there? >> no, your honor, that is not true. my broadcast lawyer worth his salt, and there are sofrle sitting at that table. could look at that question.

to the commission's framework for analysis and come to in most cases >> >> they will say if in doubt, don't run it. that is what we are talking about, the chill. >> i am going to ask them whether they can be more confident than the commission's lawyer was when i asked them the question. would they say sure? each for the commission lawyer could answer the question with confidence, we will tell them to do so. >> that points to a situation in which broadcast stations -- or some affiliates did not broadcast saving private ryan. >> or the 9/11 program. >> but if broadcasters are not airing programs when the commission has already said it is not indecent, there is a little bit of gamesmanship going on here. there is a wide swath of

hypotheticals one can imagine. there is always going to be cases at the margin that are going to be difficult. the question is do broadcasters have sufficient guidance with brar -- with regard to what the main run of cases are -- >> can they play hamlet with impunity without bleeping when hamlet talks -- >> i believe urns, post haste with dixon taret twixt sheets. >> i'm sure that the broadcasters can broadcast that. >> you are sure? >> counselor i have two short questions. are you prepared to agree that if this policy stays in effect, there will not be live wrod cast