Federal Communications Commission v. Pacifica (1978)

Federal Communications Commission v. Pacifica (1978)

438 U.S. 726

A Pacifica-owned radio station broadcast a George Carlin comedic monologue of “filthy words.” A father who heard the broadcast while driving with his son filed a complaint with the FCC. Federal law prohibits “any obscene, indecent, or profane language by means of radio communications.” The FCC found that certain words in the monologue depicted sexual and excretory activities in a particularly offensive manner, noted that they were broadcast in the early afternoon “when children are undoubtedly in the audience,” and concluded that the language as broadcast was indecent and prohibited by the law. The FCC did not impose a sanction, but declared that if further complaints were received, it would consider taking regulatory action. 

Opinion of the Court: Stevens, Burger, Blackmun, Powell, Rehnquist.

Concurring opinion: Powell, Blackmun.

Dissenting opinions: Brennan, Marshall; Stewart, White, Marshall.

JUSTICE STEVENS delivered the opinion of the Court with respect to Parts I-III, and IV-C.

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.

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 couldn’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.

A New York radio station, owned by respondent 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 Commission. . . . 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 satirist” 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 towards those words.”

. . . [T]he Commission 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.”

. . . Advancing several reasons for treating broadcast speech differently from other forms of expression, the Commission found a power to regulate indecent broadcasting in two statutes: 18 U.S.C. § 1464, which forbids the use of “any obscene, indecent, or profane language by means of radio communications,” and 47 U.S.C. § 303(g), which requires the Commission to “encourage the larger and more effective use of radio in the public interest.” . . . [T]he 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 audience (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 by 18 U.S.C. [§] 1464.”

The United States Court of Appeals for the District of Columbia Circuit reversed, with each of the three judges on the panel writing separately. Judge Tamm concluded that the order represented censorship and was expressly prohibited by § 326 of the Communications Act.  Chief Judge Bazelon’s concurrence rested on the Constitution. He was persuaded that § 326’s prohibition against censorship is inapplicable to broadcasts forbidden by § 1464. However, he concluded that § 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.

II

Section 29 of the Radio Act of 1927 provided:

“Nothing in this Act shall be understood or construed to give the licensing authority the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communications. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication.”

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. . . .During the period between the original enactment of the provision in 1927 and its re-enactment in the Communications Act of 1934, the courts and the Federal Radio Commission held that the section deprived the Commission of the power to subject “broadcasting matter to scrutiny prior to its release,” but they concluded that the Commission’s “undoubted right” to take note of past program content when considering a licensee’s renewal application “is not censorship.” . . .

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 1927 Act 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.

III

. . . 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 statute 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 or history of § 1464 supports the conclusion that prurient appeal is an essential component of indecent language, we reject Pacifica’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.

IV

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 abridgment of the right to broadcast it on the radio.

A

The first argument fails because our review is limited to the question 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.

B

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.

. . . 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 broadcast were based in part on its content. The order must therefore fall if, as Pacifica argues, the First Amendment prohibits all governmental 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’ statement for the Court in Schenck v. United States:

“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 is 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 in the years since Schenck. The government may forbid speech calculated to provoke a fight. See Chaplinsky v. New Hampshire. It may pay heed to the “ ‘commonsense differences’ between commercial speech and other varieties.” Bates v. State Bar of Arizona. It may treat libels against private citizens more severely than libels against public officials. See Gertz v. Robert Welch, Inc. Obscenity may be wholly prohibited. Miller v. California. 

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. Roth v. United States. 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. Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: “Such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Although these words ordinarily lack literary, political, or scientific value, they are not entirely outside the protection of the First Amendment. Some uses of even the most offensive words are unquestionably protected. Indeed, we may assume, arguendo, that this monologue would be protected in other contexts. Nonetheless, the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context. It is a characteristic of speech such as this that both its capacity to offend and its “social value,” to use Mr. Justice Murphy’s term, vary with the circumstances. Words that are commonplace in one setting are shocking in another. To paraphrase Mr. Justice Harlan, one occasion’s lyric is another’s vulgarity.

C

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. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve “the public interest, convenience, and necessity.” Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, it affords no such protection to broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC.

The reasons for these distinctions 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. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.

Second, broadcasting is uniquely accessible to children, even those too young to read. . . . Pacifica’s broadcast could have enlarged a child’s vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children.

JUSTICE POWELL, with whom JUSTICE BLACKMUN joins, concurring in part and concurring in the judgment.

It is conceded that the monologue at issue here is not obscene in the constitutional sense. Nor, in this context, does its language constitute “fighting words” within the meaning of Chaplinsky v. New Hampshire. Some of the words used have been held protected by the First Amendment in other cases and contexts. I do not think Carlin, consistently with the First Amendment, could be punished for delivering the same monologue to a live audience composed of adults who, knowing what to expect, chose to attend his performance.  And I would assume that an adult could not constitutionally be prohibited from purchasing a recording or transcript of the monologue and playing or reading it in the privacy of his own home.

. . . The Commission’s primary concern was to prevent the broadcast from reaching the ears of unsupervised children who were likely to be in the audience at that hour. In essence, the Commission sought to “channel” the monologue to hours when the fewest unsupervised children would be exposed to it. In my view, this consideration provides strong support for the Commission’s holding.  The Court has recognized society’s right to “adopt more stringent controls on communicative materials available to youths than on those available to adults.”  This recognition stems in large part from the fact that “a child . . . is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.” Thus, children may not be able to protect themselves from speech which, although shocking to most adults, generally may be avoided by the unwilling through the exercise of choice. At the same time, such speech may have a deeper and more lasting negative effect on a child than on an adult. For these reasons, society may prevent the general dissemination of such speech to children, leaving to parents the decision as to what speech of this kind their children shall hear and repeat.

. . . The Commission properly held that the speech from which society may attempt to shield its children is not limited to that which appeals to the youthful prurient interest. The language involved in this case is as potentially degrading and harmful to children as representations of many erotic acts.

II

. . . I do not join Part IV–B, however, because I do not subscribe to the theory that the Justices of this Court are free generally to decide on the basis of its content which speech protected by the First Amendment is most “valuable” and hence deserving of the most protection, and which is less “valuable” and hence deserving of less protection.

JUSTICE BRENNAN, with whom Justice MARSHALL joins, dissenting.

. . . I find the Court’s misapplication of fundamental First Amendment principles so patent, and its attempt to impose its notions of propriety on the whole of the American people so misguided, that I am unable to remain silent.

[D]espite the Court’s refusal to create a sliding scale of First Amendment protection calibrated to this Court’s perception of the worth of a communication’s content, and despite our unanimous agreement that the Carlin monologue is protected speech, a majority of the Court1 nevertheless finds that, on the facts of this case, the FCC is not constitutionally barred from imposing sanctions on Pacifica for its airing of the Carlin monologue. This majority apparently believes that the FCC’s disapproval of Pacifica’s afternoon broadcast of Carlin’s “Dirty Words” recording is a permissible time, place, and manner regulation.

. . . [T]he Court commits two errors. First, it misconceives the nature of the privacy interests involved where an individual voluntarily chooses to admit radio communications into his home. Second, it ignores the constitutionally protected interests of both those who wish to transmit and those who desire to receive broadcasts that many—including the FCC and this Court—might find offensive.

. . . Because the Carlin monologue is obviously not an erotic appeal to the prurient interests of children, the Court, for the first time, allows the government to prevent minors from gaining access to materials that are not obscene, and are therefore protected, as to them.

. . . Yoder and Pierce hold that parents, not the government, have the right to make certain decisions regarding the upbringing of their children. As surprising as it may be to individual Members of this Court, some parents may actually find Mr. Carlin’s unabashed attitude towards the seven “dirty words” healthy, and deem it desirable to expose their children to the manner in which Mr. Carlin defuses the taboo surrounding the words. Such parents may constitute a minority of the American public, but the absence of great numbers willing to exercise the right to raise their children in this fashion does not alter the right’s nature or its existence. Only the Court’s regrettable decision does that.

JUSTICE STEWART, with whom JUSTICE BRENNAN, JUSTICE WHITE, and JUSTICE MARSHALL join, dissenting.

The Court today recognizes the wise admonition that we should “avoid the unnecessary decision of [constitutional] issues.” But it disregards one important application of this salutary principle—the need to construe an Act of Congress so as to avoid, if possible, passing upon its constitutionality.

. . . I think that “indecent” should properly be read as meaning no more than “obscene.” Since the Carlin monologue concededly was not “obscene,” I believe that the Commission lacked statutory authority to ban it. Under this construction of the statute, it is unnecessary to address the difficult and important issue of the Commission’s constitutional power to prohibit speech that would be constitutionally protected outside the context of electronic broadcasting.