FCC vs. Pacifica
98 S.Ct. 3026 (1978)
Edited version
Edited version
A satiric humorist named George Carlin recorded a 12-minute monologue entitled "Filthy Words" before a live audience in a California theater. He began by referring to his thoughts about "the words you can't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever." He proceeded to list those words and repeat them over and over again in a variety of colloquialisms. The transcript of the recording . . . indicates frequent laughter from the audience.
At about 2 o'clock in the afternoon on Tuesday, October 30, 1973, a New York radio station,
owned by Pacifica Foundation, broadcast the "Filthy Words"
monologue. A few weeks later a man, who stated that he had heard the broadcast while
driving with his young son, wrote a letter complaining to the Federal Communications
Commission (FCC). He stated that, although he could perhaps understand the "record's
being sold for private use, I certainly cannot understand the broadcast of same over the air that,
supposedly, you control."
The complaint was forwarded to the station for comment. In its response, Pacifica explained
that the monologue had been played during a program about
contemporary society's attitude toward language and that, immediately before its broadcast,
listeners had been advised that it included "sensitive language which might be regarded as
offensive to some." Pacifica characterized George Carlin as a "significant social artist" who
"like Twain and Sahl before him, examines the language of ordinary people...Carlin is not
mouthing obscenities, he is merely using words to
satirize as harmless and essentially silly our attitudes toward those words." Pacifica stated
that it was not aware of any other complaints about the broadcast.
On February 21, 1975, the FCC issued a declaratory order granting the complaint and holding
that Pacifica "could have been the subject of administrative sanctions" . . . The commission
did not impose formal sanctions, but it did state that the order would be "associated with the
station's license file, and in the event that subsequent complaints are received, the commission
will then decide whether it should utilize any of the available sanctions it has been granted by
Congress."
The commission concluded that certain words depicted sexual and excretory activities in a
patently offensive manner, noted that they "were broadcast at a time when children were
undoubtedly in the audiences (i.e., in the early afternoon)" and that the prerecorded language,
with these offensive words "repeated over and over," was "deliberately broadcast" . . . .
In summary, the commission stated: "We therefore hold that the language as broadcast was
indecent and prohibited." . . .
The United States Court of Appeals for the District of Columbia Circuit reversed this. Justice
Stevens said: "This case requires that we decide whether the Federal Communications
Commission has any power to regulate a radio broadcast that is indecent but not obscene".
At the Court of Appeals, Judge Tamm concluded that the order represented censorship and
was expressly prohibited by Paragraph 326 of the Communications Act. Alternatively, Judge
Tamm read the commission opinion as the functional equivalent of a rule and concluded that it
was "overbroad." . . .
Chief Judge Bazelon's concurrence rested on the Constitution. He was persuaded that
Paragraph 326's prohibition against censorship is inapplicable to broadcasts forbidden by
Paragraph 1464 (prohibiting " obscene, indecent or profane
language by means of radio communications"). However, he concluded that Paragraph 1464
must be narrowly construed to cover only language that is obscene or otherwise unprotected by
the First Amendment...
Judge Leventhal, in dissent, stated that the only issue was whether the commission could
regulate the language "as broadcast." . . .
Emphasizing the interest in protecting children, not only from exposure to
indecent language, but also from exposure to the idea
that such language has official approval, . . . he concluded that the commission had correctly
condemned the daytime broadcast as indecent.
Having granted the commission's petition for certiorari, . . . we must decide:
The general statements in the commission's memorandum opinion do not change the character
of its order. Its action was an adjudication . . . It did not purport to engage in formal rule
making or in the promulgation of any regulations. The order "was issued in a specific factual
context"; questions concerning possible action in other contexts were expressly reserved for
the future. The specific holding was carefully confined to the monologue "as broadcast." . . .
The relevant statutory questions are whether the commission's action is forbidden "censorship"
within the meaning of Paragraph 326 and whether speech that concededly is not obscene may be restricted as "indecent" under the authority of Paragraph 1464 . . .
The prohibition against censorship unequivocally denies the commission any power to edit
proposed broadcasts in advance and to excise material considered inappropriate for the
airwaves. The prohibition, however, has never been construed to deny the commission the
power to review the content of completed broadcasts in the performance of its regulatory
duties.
Entirely apart from the fact that the subsequent review of program content is not the sort of
censorship at which the statute was directed, its history makes it perfectly clear that it was not
intended to limit the commission's power to regulate the broadcast of obscene, indecent, or profane language. A single section of the [Radio
Act of 1927] is the source of both the anticensorship provision and the commission's authority
to impose sanctions for the broadcast of indecent or obscene language. Quite plainly, Congress
intended to give meaning to both provisions. Respect for that intent requires that the censorship
language be read as inapplicable to the prohibition on broadcasting obscene, indecent, or
profane language.
We conclude, therefore, that Paragraph 326 does not limit the commission's authority to
impose sanctions on licensees who engage in obscene, indecent, or
profane broadcasting.
The only other statutory question presented by this case is whether the afternoon broadcast of
the "Filthy Words" monologue was indecent within the meaning of Paragraph 1464 . . .
The commission identified several words that referred to excretory or sexual activities or
organs, stated that the repetitive, deliberate use of those words in an afternoon broadcast when
children are in the audience was patently offensive and held that the broadcast was indecent. Pacifica takes issue with the commission's
definition of indecency, but does not dispute the commission's preliminary determination that
each of the components of its definition was present. Specifically, Pacifica does not quarrel
with the conclusion that this afternoon broadcast was patently offensive. Pacifica's claim that
the broadcast was not indecent within the meaning of the statute rests entirely on the absence of
prurient appeal.
The plain language of the statutue does not support Pacifica's argument. The words "
obscene, indecent, or profane" are written in the disjunctive,
implying that each has a separate meaning. Prurient appeal is an element of the obscene, but the
normal definition of "indecent" merely refers to nonconformance with accepted standards of
morality.
Because neither our prior decisions nor the language of history of Paragraph 1464 supports the
conclusion that prurient appeal is an essential component of
indecent language, we reject Pacificia's construction of the statute. When that construction
is put to one side, there is no basis for disagreeing with the commission's conclusion that
indecent language was used in this broadcast.
Pacifica makes two constitutional attacks on the commission's order. First, it argues that the
commission's construction of the statutory language broadly encompasses so much
constitutionally protected speech that reversal is required even if Pacifica's broadcast of the
"Filthy Words" monologue is not itself protected by the First Amendment. Second, Pacifica argues that inasmuch as the
recording is not obscene, the Constitution forbids any
abridgement of the right to broadcast it on the radio.
The first argument fails because our review is limited to the question of whether the
commission has the authority to proscribe this particular broadcast. As the commission itself
emphasized, its order was "issued in a specific factual context." . . .
That approach is appropriate for courts as well as the commission when regulation of
indecency is at stake, for indecency is largely a
function of context - it cannot be adequately judged in the abstract.
It is true that the commission's order may lead some broadcasters to censor themselves. At
most, however, the commission's definition of indecency will deter only the broadcasting of patently
offensive references to excretory and sexual organs and activities. While some of these
references may be protected, they surely lie at the periphery of First Amendment concern . . .
When the issue is narrowed to the facts of this case, the question is whether the First Amendment denies government any power to restrict the
public broadcast of indecent language in any
circumstances. For if the government has any such power, this was an appropriate occasion for
its exercise.
The words of the Carlin monologue are unquestionably "speech"
within the meaning of the First Amendment. It is equally
clear that the commission's objections to the broadscast were based in part on its content. The
order must therefore fall if, as Pacifica argues, the First Amendment prohibits all govermental
regulation that depends on the content of speech. Our past cases demonstrate, however, that no
such absolute rule is mandated by the Constitution.
The classic exposition of the proposition that both the content and the context of speech are
critical elements of First Amendment analysis is Mr. Justice
Holmes's statement . . .
We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it was done . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent.
Other distinctions based on content have been approved . . . The government may forbid
speech calculated to provoke a fight . . . It may pay heed to the "commonsense differences
between commercial speech and other varieties." . . . It may treat libels against private citizens
more severely than libels against public officials . . . Obscenity may be wholly prohibited . . .
The question in this case is whether a broadcast of patently offensive words dealing with sex
and excretion may be regulated because of its content. Obscene materials have been denied the protection of the
First Amendment because their content is so offensive to
contemporary moral standards . . . But the fact that society may find speech offensive is not a
sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that
consequence is a reason for according it constitutional protection. For it is a central tenet of
the First Amendment that the government must remain neutral in the marketplace of ideas. If
there were any reason to believe that the commission's characterization of the Carlin monologue as offensive could be traced to its political content
- or even to the fact that it satirized contemporary attitudes about four-letter words - First
Amendment protection might be required. But that is simply not this case. These words offend
for the same reasons that obscenity offends . . .
In this case it is undisputed that the content of Pacifica's broadcast was "vulgar," "offensive,"
and "shocking." Because content of that character is not entitled to absolute constitutional
protection under all circumstances, we must consider its context in order to determine whether
the commission's action was constitutionally permissible.
We have long recognized that each medium of expression presents special First Amendment problems . . . And of all forms of
communication, it is broadcasting that has received the most limited First Amendment
protection . . . The reasons for [that distinction] are complex, but two have relevance to the
present case. First, the broadcast media have established a uniquely pervasive presence in the
lives of all Americans. Patently offensive, indecent
material presented over the airwaves confronts the citizen, not only in public, but also in the
privacy of the home, where the individual's right to be left alone plainly outweighs the First
Amendment rights of an intruder . . . Because the broadcast audience is constantly tuning in and
out, prior warnings cannot completely protect the listener or viewer from unexpected program
content . . .
Second, broadcasting is uniquely accessible to children, even those too young to read . . .
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does
not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast
of an Elizabethan comedy. We have not decided that an occasional expletive in either setting
would justify any saction or, indeed, that this broadcast would justify a criminal prosecution.
The commission's decision rested entirely on a nuisance rationale under which context is
all-important. The concept requires consideration of a host of variables. The time of day was
emphasized by the commission. The content of the program in which the language is used will
also affect the composition of the audience, and differences between radio, television, and
perhaps closed-circuit transmissions, may also be relevant . . .
The judgment of the court of appeals is reversed.
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