Case Summary and Outcome

The Supreme Court of the United States, in a five-to-four vote, held that the Federal Communications Commission (FCC or Commission) had authority to regulate the broadcast of indecent content to the public under 18 U.S.C. Section 1464, and found that offensive content is not entitled to absolute protection under the First Amendment.  A radio station owned by Pacifica Foundation (Pacifica) made an afternoon broadcast of a monologue called “Filthy Words” that was recorded from a live performance by a satiric humorist.  After receiving a complaint from a father who listened to the broadcast while driving with his young son, the Commission issued an order to be associated with Pacifica’s license file stating that the broadcast contained patently offensive language and that the radio station could be subject to administrative sanctions.  The United States Court of Appeals for the District of Columbia Circuit reversed the order.  On certiorari, the Supreme Court of the United States reversed the judgment of the D.C. Circuit and confirmed the FCC’s legitimate interest and authority to regulate indecent and offensive content in broadcasting.  The Court’s opinion distinguished broadcasting from other mediums of expression and stated that broadcasting has received the most limited First Amendment protection, acknowledging its “uniquely pervasive presence in the lives of all Americans” [p. 748] and accessibility to children.  Ultimately, the Court held that (i) the scope of the judicial review was limited to the Commission’s determination that the monologue was indecent as broadcast; (ii) the order did not constitute censorship prohibited by 47 U.S.C. Section 326, because this provision would not apply to the Commission’s authority to sanction obscene, indecent, or profane broadcasting under 18 U.S.C. Section 1464; (iii) the monologue “as broadcast” constituted indecent content within the meaning of 18 U.S.C. Section 1464; and (iv) the order did not violate the First Amendment, which does not provide absolute protection to indecent content.

Facts

A radio station licensed to Pacifica (Station WBAI, in New York) made an afternoon broadcast, at 2 p.m. on a Tuesday, of a monologue entitled “Filthy Words.”  The monologue was recorded from a live performance by satiric humorist George Carlin, who presented his thoughts about “words you couldn’t say on the public airwaves,” which essentially included the use of words depicting sexual or excretory organs and activities.  The humorist listed and repeated those words in a variety of colloquialisms to a live audience that reacted with frequent laughter.

A man who listened to the broadcast while driving with his young son submitted a complaint to the FCC, which was forwarded to the radio station for comment.  The radio station replied that the recorded monologue was part of a segment about contemporary society’s attitude toward language and that listeners had been advised before the broadcast that its content included “sensitive language which might be regarded as offensive to some” [p. 730].  The Commission issued a declaratory order granting the complaint and stating that the radio station “could have been the subject of administrative sanctions” [p. 730].  Although there were no formal sanctions, the Commission stated that the order would be associated with the radio station’s license file for consideration of potential sanctions in case of subsequent complaints.

The Commission found its power to regulate indecent broadcasting in two statutes––18 U.S.C. Section 1464, which forbids the use of “any obscene, indecent, or profane language by means of radio communications” and 47 U.S.C. Section 303(g), which requires the FCC to “encourage the larger and more effective use of radio in the public interest.”  The Commission provided a conceptual definition of the term “indecent” for the purposes of the order as “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience” [p. 732].  

Borrowing principles found in cases relating to public nuisance, the Commission also emphasized the intrusive nature of broadcasting, which should be distinguished from other forms of communication and expression, and noted that the concept of indecency “is not an inherent attribute of words themselves; it is, rather, a matter of context and conduct” [p. 755] requiring regulation.  The order noted that the language in the monologue was used in a particularly offensive manner in the early afternoon, at a time when children are undoubtedly in the audience, and concluded that the radio broadcast was indecent.  In a clarifying order, the Commission stated that the order is not intended to place an absolute prohibition on the broadcast of indecent language but only sought to channel it to times of the day when children would least likely be exposed to it.

Pacifica challenged the FCC’s order, contending it violated its right to freedom of speech protected by the First Amendment to the United States Constitution.  The United States Court of Appeals for the District of Columbia Circuit reversed the challenged order and ruled  —even though the three-judge panel was unable to agree on an opinion—that either it (i) represented censorship over radio communications, which was expressly prohibited by section 326 of the Communications Act of 1934; (ii) was the functional equivalent of a rule and was overbroad; or (iii) inappropriately narrowed the protection provided by the First Amendment.

The United States Supreme Court granted certiorari to the FCC.

Decision Overview

The Supreme Court of the United States was not able to reach a consensus but in a majority formed by five members of the Court, upheld the Commission’s order and found that it did not violate the First Amendment.  Justice Stevens delivered the majority opinion for the Court and was joined by Justices Burger, Rehnquist, Powell and Blackmun, except with respect to Parts IV-A and IV-B. The central issues it analyzed were whether the broadcast of the George Carlin monologue constituted indecent content subject to sanctions by the FCC and whether the FCC, in light of the First Amendment right to freedom of speech, had the authority to regulate indecent and offensive content in broadcasting.  In order to examine the issues faced by the Court, the opinion was divided into four parts.  Part I addresses whether the scope of judicial review encompasses more than the Commission’s determination that the monologue was indecent “as broadcast.”  Part II addresses whether the Commission’s order was a form of censorship forbidden by 47 U.S.C. Section 326.  Part III addresses whether the broadcast was indecent within the meaning of 18 U.S.C. Section 1464.  And finally, Part IV addresses whether the Commission’s order violated the First Amendment of the United States Constitution. 

Justice Powell, joined by Justice Blackmun, delivered an opinion concurring in part and concurring in the judgement.  Justice Brennan, joined by Justice Marshall, delivered a dissenting opinion.  Justice Stewart, joined by Justices Brennan, White, and Marshall, also delivered a dissenting opinion.

With respect to Parts I-III and IV-C, the majority held that:

1. The Commission’s action did not constitute rulemaking or promulgation of regulations, and the general statements in the opinion did not change the character of adjudication of the order, which is subject to the Court’s judicial review of the Commission’s conclusion that the monologue, as broadcast, was indecent within the meaning of 18 USCS 1464;
2. Although 47 U.S.C. Section 326 denies the Commission power to edit proposed broadcasts in advance, the provision does not limit the Commission’s authority to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting.  The opinion also stated that the Court of Appeals for the District of Columbia Circuit, in Anti-Defamation League of B’nai B’rith v. FCC, 403 F. 2d 169 (1968) and Office of Communication of United Church of Christ v. FCC, 359 F. 2d 994 (1966), has historically recognized that “the Commission is not prevented from canceling the license of a broadcaster who persists in a course of improper programming” [p. 737].
3. There is no reason to contradict the Commission’s conclusion that the monologue, as broadcast, was indecent within the meaning of 18 U.S.C. Section 1464, considering that prurient appeal is not an essential component of indecent language, which “merely refers to nonconformance with accepted standards of morality” [p. 740].  Pacifica opposed the Commission’s definition of indecency and contended that the broadcast of the Carlin monologue was not indecent within the meaning of 18 U.S.C. Section 1464, particularly because of the lack of prurient appeal.  Pacifica argued that the Court, in Hamling v. United States, 418 U.S. 87 (1974) and in United States v. 12 200 Ft. Reels of Super 8mm Film, 413 U.S. 123 (1973), had read the term “indecent” in a related statute (18 U.S.C. Section 1461) to mean––and to be limited to––“obscene” as defined by the Court in Miller v. California, 413 U.S. 15 (1973).  In FCC v. Pacifica Foundation, however, the Court rejected that the rationale employed in Hamling for Section 1461 is not applicable to Section 1464, considering that the first statute “deals primarily with printed matter enclosed in sealed envelopes mailed from one individual to another” and the other statute “deals with the content of public broadcasts” [p. 741].  Hence, the Court concluded that each of the words “obscene, indecent, or profane” in 18 U.S.C. Section 1464 had a separate meaning and that prurient appeal is just an element of the obscene, but not of indecent.

IV-C. Broadcasting “has received the most limited First Amendment protection” (see Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495) [p. 748], considering broadcast media “have established a uniquely pervasive presence in the lives of all Americans” [p. 748] and are “uniquely accessible to children” [p. 749].  First, relying on Rowan v. Post Office Dept., 397 U.S. 728 (1970), the Court found that an individual’s privacy right outweighed the First Amendment rights of an intruder, in this case, the pervasive radio broadcast of patently offensive, indecent material to the public.  Second, the Court found reason for special treatment of indecent broadcasting because of how easily children may obtain access to broadcast material.  Referencing Ginsberg v. New York, 390 U. S. 629 (1968), the Court found that “the government’s interest in the ‘well-being of its youth’ and in supporting ‘parents’ claim to authority in their own household’ justified the regulation of otherwise protected expression” [p. 749].

Thus the Court reversed the decision issued by the United States Court of Appeals for the District of Columbia.

Justice Stevens, joined by Justices Burger and Rehnquist on Parts IV-A and IV-B, not writing for the Court on these points, also found that the Commission’s order was limited to the particular broadcast of the monologue and did not broadly apply to speech otherwise protected by the First Amendment.  To address Pacifica’s argument that the Commission’s order was overbroad and would inadvertently affect otherwise constitutionally protected speech, Justice Stevens’ opinion, while recognizing that the Commission’s order could lead to potential self-censorship, stated that “[i]nvalidating any rule on the basis of its hypothetical application to situations not before the Court is ‘strong medicine’ . . . [that we] decline to administer” [p. 396] , relying on the Court’s position in Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) and Broadrick v. Oklahoma, 413 U. S. 601, 413 U. S. 613.  Justice Stevens, following the case law laid out in Schenck v. United States, 249 U.S. 47 (1919), also noted that past cases showed that the First Amendment does not prevent government regulation and that “both the content and the context of speech are critical elements of First Amendment analysis” [p. 744]. Moreover, the opinion recognized that the government has the power to regulate the broadcast of patently offensive words based on its content and, specifically with respect to the Carlin monologue, that it contained “vulgar,” “offensive,” and “shocking” language given the context, acknowledging “arguendo, that this monologue would be protected in other contexts” [p. 746].

Justice Powell, joined by Justice Blackmun, delivered an opinion concurring in part and concurring in the judgment that the Commission’s order did not violate the First Amendment.  Justice Powell, however, did not agree with the view that the Court would be allowed to decide, on the basis of content, which forms of speech were more valuable than others and therefore more deserving of First Amendment protection.  For this reason, Justice Powell and Justice Blackmun did not join Justice Stevens’ opinion in Parts IV-A and IV-B.

Justice Brennan, joined by Justice Marshall, delivered a dissenting opinion, holding that the broadcasted monologue constituted protected speech and that the Commission’s order amounted to censorship in violation of the First Amendment right to freedom of speech.  Criticizing the majority opinion for “misapplication of fundamental First Amendment principles” [p. 762] and alluding to the public’s free choice to reject indecent material being broadcast, Justice Brennan found that “the privacy interests of an individual” and “the presence of children in the listening audience” were insufficient factors to support the Commission’s order.  The dissent expressed concerns with the authority granted to the government to regulate speech based on its content and subjective judgment and emphasized that all forms of expression, including those that are offensive or indecent to some individuals, deserve protection under the First Amendment.

Justice Stewart, joined by Justices Brennan, White, and Marshall, also delivered a dissenting opinion.  While acknowledging that the Commission’s order raised substantial constitutional questions, the opinion advocated for an interpretation of the “obscene, indecent, or profane language” in 18 U.S.C. Section 1464 and, relying on Hamling, held that “indecent” has the same meaning as “obscene.”  The dissent, hence, concluded that the Commission lacked statutory authority to issue the order against the radio station for the broadcast of the “Filthy Words” monologue.