Federal Communications Commission v. Pacifica Foundation - Further Readings
Petitioner
Federal Communications Commission
Respondent
Pacifica Foundation, et al.
Petitioner's Claim
That "patently offensive," although not necessarily obscene, speech should besubject to federal regulation.
Chief Lawyer for Petitioner
Joseph A. Marino
Chief Lawyer for Respondent
Harry M. Plotkin
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, John Paul Stevens (writing for the Court)
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, Potter Stewart, Byron R. White
Place
Washington, D.C.
Date of Decision
3 July 1978
Decision
Upheld the Federal Communications Commission (FCC), overturning a court of appeals ruling that speech can only be regulated when it is obscene or has "prurient appeal."
Significance
This ruling established the authority of the FCC to regulate the broadcast of"indecent" material, restricting such broadcasts to hours of the day when children would be unlikely to be in the audience. In its decision the Court also defined broadcast obscenity as "language that describes, in terms patentlyoffensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs."
Obscene or Offensive Speech
Throughout the history of the United States, tension has existed between theright of free expression and the tastes of individuals and groups. The difficulty of defining objectionable speech is readily apparent, for, as Justice John Marshall Harlan observed, "one man's vulgarity is another man's lyric." Despite its intractability, the question of exactly what comprises obscene or offensive speech lies at the heart of many court decisions surrounding First Amendment rights. Further complicating questions of objectionable speech is the proliferation of broadcast technology and the resulting pervasiveness of speech of all forms. Generally speaking, the Supreme Court has ruled that mosttypes of speech are fully protected from censorship, although a few exceptions have been made. Libelous speech and false advertising, for instance, are not protected from censorship. Sounding of false alarms (such as yelling "fire!" in a crowded theater) or "fighting words" as defined in Chaplinsky v. New Hampshire (1942), are also forms of speech that are subject to government regulation. Short of these examples, however, lies a vast grey area of speech that is protected to some degree. Speech that could be construed as obscene falls into this latter category, with obscenity defined by the Court in Miller v. California (1973) as speech that
Filthy Words
Given the subjectiveness of the criteria for determining whether or not speech is patently offensive, it is not surprising that many performers and broadcasters have intentionally used speech that could be considered offensive in an effort to be entertaining. "Filthy Words," a monologue performed by comedian George Carlin in the early 1970s is a magnificent example of this type of entertainment. In this monologue Carlin listed seven words that he categorizedas "the words you can't say, that you're not supposed to say all the time."He then proceeded to use these words repeatedly in a number of humorous contexts throughout the remainder of the performance. Given Carlin's prominence atthe time, "Filthy Words" was recorded and distributed to radio stations across the United States.
Patently Offensive Language Hits the Fan
On 30 October 1973, at approximately 2:00 p.m., a New York City radio stationowned by the Pacifica Foundation aired "Filthy Words" in its entirety. Amongthe listeners to the program were a motorist and his young son. The motoriststrongly objected to the content of "Filthy Words," and sent a written complaint to the FCC within a few weeks of the broadcast. The FCC forwarded the complaint to the Pacifica Foundation, which responded that the monologue had been played as part of a serious examination of changing attitudes toward language, and that before the program listeners had been warned that it included "sensitive language which might be regarded as offensive to some." The Pacifica Foundation also advanced the view that George Carlin was a significant social satirist who used the potentially offensive language to "satirize as harmless and essentially silly our attitudes toward those words." The FCC ruled onthe matter on 21 February 1975, finding in favor of the complainant and stating that the Pacifica Foundation could have been "the subject of administrative sanctions." The legal basis for the FCC's decision rested in 18 U.S.C. 1464 (1976) (hereinafter referred to as 1464), which forbids use of "any obscene, indecent, or profane language by means of radio communications," and 47 U.S.C. 303, which requires the FCC to "encourage the larger and more effective use of radio in the public interest." Finally, the FCC advanced the position that it did not seek to prohibit the use of patently offensive speech but onlyto restrict its use to those times of day when it was unlikely that childrenwould be in the audience.
Legal Proceedings
The Pacifica Foundation appealed the FCC ruling to the three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. By a 2-1 countthe court of appeals reversed the FCC decision. The two judges favoring reversal were divided in their view of the case. Judge Tamm felt that the FCC hadacted in violation of section 326 of the Communications Act, which forbids censorship. Chief Judge Bazelon observed that 326 does not cover language as described in 1464, but concurred in the decision due to his feeling that the provisions of 1464 should be interpreted more narrowly than was done in this case. The FCC appealed the case to the Supreme Court, which heard arguments on18 and 19 April 1978.
The Court delivered its decision on 3 July 1978, reversing the decision of the court of appeals and upholding the FCC's right to regulate the broadcast ofpatently offensive language. Justice Stevens, writing for the majority, viewed the case as hinging on three questions: whether the form of censorship suggested by the FCC violated 326; whether the monologue was indecent within thedefinitions set forth in 1464; and whether the FCC order against the Pacifica Foundation constituted a violation of the First Amendment. On the first question the Court concluded that 326 did not preclude the subsequent review ofprogramming that had already aired, and that it was "perfectly clear" that 326 "was not intended to limit the Commission's power to regulate the broadcastof obscene, indecent, or profane language." Similarly, the Court ruled thatthe language contained in "Filthy Words" did qualify as indecent within the parameters of 1464. Finally, the Court ruled that the FCC's sanction of the Pacifica Foundation did not constitute a violation of the First Amendment, citing a precedent in the case of Red Lion Broadcasting Co. v. Federal Communications Commission (1969). In Red Lion the Court ruled that individuals do not have a constitutional right to communicate by broadcasting, since the electromagnetic spectrum can accommodate only a finite number of transmission frequencies. As such broadcasters are required to act in the public interest, since they, in effect, must represent the views of all those unable to obtain a broadcasting license. In fact, the Court decided that the pervasive nature of broadcasting technology, which can project words and images intoanyone's home, justified unique forms of regulation of potentially objectionable material. Despite the apparent decisiveness of the ruling, Justice Stevens took pains to narrow the context of the case. The limited nature of the FCC's action in the case, that is, to merely issue what amounted to a warning and suggest that similar programming should air at hours of the day when children were unlikely to be in the audience, was a factor in the decision, as wasthe obviously intentional offensiveness of "Filthy Words." In the final analysis, however, the actual degree of offensiveness was relatively unimportant:
Impact
Federal Communications Commission v. Pacifica Foundation established the principle that indecent, as opposed to obscene, speech that is broadcast on the public airwaves is subject to some degree of regulation. The Court's reliance on the definition of obscenity set forth in Miller v. California solidified the use of that definition in adjudicating First Amendment cases. The problem of determining the exact extent of an individual's freedom of speech remains intractable, as the Court was clear that its decision rested onnarrow grounds peculiar to this case, thereby severely constraining the applicability of Federal Communications Commission v. Pacifica Foundationas a legal precedent.
Related Cases
Freedom to Broadcast
The Supreme Court clearly extended First Amendment protections to the electronic media of radio and television. However, since these media can only operate over a limited number of public airways or frequencies, the government mayregulate them to assure operational effectiveness and public benefit. Such limitations are considered prior restraint in the print media and not allowed.
Congress created the Federal Communications Commission (FCC) to implement itsregulations over broadcasting. The FCC issues licenses to broadcast over specific airways, requires broadcasters to provide coverage of public interest issues, and prohibits certain language on the air. Licenses must be awarded neutrally so as not to favor one broadcaster's views over another's.
In the 1940s, the FCC developed a policy known as the "fairness doctrine." The doctrine required broadcasters to provide the opportunity for an individualwhose views or records were attacked on air to respond. However, in 1987 theFCC voted to discard the doctrine. In two rulings in the 1970s the Court held that airing all views was not possible. Broadcasters retained the discretion of which views to air. Despite legal challenges, the FCC maintains authority to restrict hours during which offensive programming may be aired.
Sources
Hindman, Elizabeth B. Rights vs. Responsibilities: The Supreme Court and the Media. Westport, CT: Greenwood Press, 1997.
Should Stand-Up Comics Be Censored?
In 1964, Lenny Bruce was brought to trial for using obscene words during a stand-up routine. Whereas mainstream comedians of his era remain in the popularimagination chiefly for their jokes, Bruce , who died in 1966, is viewed asan avant-garde figure who stood for free speech.
But some would ask if Bruce stood for free speech or filthy speech. Using thestandards adopted by the Supreme Court in later obscenity cases, was there any "redeeming social value" to Bruce's humor?
Defenders of Bruce, on the other hand--a group which includes a number of civil libertarians--would say that the free speech of a foul-mouthed comedian isall the more to be protected precisely because it does offend many people. If a society can decide which types of free speech to protect, and which to let fall prey to censorship, who can say where the lines will be drawn? Perhapsthe very religious groups who would be least likely to feel sympathetic toward a Lenny Bruce might find themselves the next target for censorship.
Sources
Daniel, Clifton, ed. Chronicle of the Twentieth Century. Mt. Kisko, NY: Chronicle, 1987.
Federal Communications Commission
Respondent
Pacifica Foundation, et al.
Petitioner's Claim
That "patently offensive," although not necessarily obscene, speech should besubject to federal regulation.
Chief Lawyer for Petitioner
Joseph A. Marino
Chief Lawyer for Respondent
Harry M. Plotkin
Justices for the Court
Harry A. Blackmun, Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, John Paul Stevens (writing for the Court)
Justices Dissenting
William J. Brennan, Jr., Thurgood Marshall, Potter Stewart, Byron R. White
Place
Washington, D.C.
Date of Decision
3 July 1978
Decision
Upheld the Federal Communications Commission (FCC), overturning a court of appeals ruling that speech can only be regulated when it is obscene or has "prurient appeal."
Significance
This ruling established the authority of the FCC to regulate the broadcast of"indecent" material, restricting such broadcasts to hours of the day when children would be unlikely to be in the audience. In its decision the Court also defined broadcast obscenity as "language that describes, in terms patentlyoffensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs."
Obscene or Offensive Speech
Throughout the history of the United States, tension has existed between theright of free expression and the tastes of individuals and groups. The difficulty of defining objectionable speech is readily apparent, for, as Justice John Marshall Harlan observed, "one man's vulgarity is another man's lyric." Despite its intractability, the question of exactly what comprises obscene or offensive speech lies at the heart of many court decisions surrounding First Amendment rights. Further complicating questions of objectionable speech is the proliferation of broadcast technology and the resulting pervasiveness of speech of all forms. Generally speaking, the Supreme Court has ruled that mosttypes of speech are fully protected from censorship, although a few exceptions have been made. Libelous speech and false advertising, for instance, are not protected from censorship. Sounding of false alarms (such as yelling "fire!" in a crowded theater) or "fighting words" as defined in Chaplinsky v. New Hampshire (1942), are also forms of speech that are subject to government regulation. Short of these examples, however, lies a vast grey area of speech that is protected to some degree. Speech that could be construed as obscene falls into this latter category, with obscenity defined by the Court in Miller v. California (1973) as speech that
(1) the average person, applying contemporary community standards, would find, taken as a whole, to appeal to a prurient interest; (2) depicts or describes in a patently offensive way sexual conduct specifically defined by state law; (3) lacks serious literary, artistic, political, or scientific value.
Filthy Words
Given the subjectiveness of the criteria for determining whether or not speech is patently offensive, it is not surprising that many performers and broadcasters have intentionally used speech that could be considered offensive in an effort to be entertaining. "Filthy Words," a monologue performed by comedian George Carlin in the early 1970s is a magnificent example of this type of entertainment. In this monologue Carlin listed seven words that he categorizedas "the words you can't say, that you're not supposed to say all the time."He then proceeded to use these words repeatedly in a number of humorous contexts throughout the remainder of the performance. Given Carlin's prominence atthe time, "Filthy Words" was recorded and distributed to radio stations across the United States.
Patently Offensive Language Hits the Fan
On 30 October 1973, at approximately 2:00 p.m., a New York City radio stationowned by the Pacifica Foundation aired "Filthy Words" in its entirety. Amongthe listeners to the program were a motorist and his young son. The motoriststrongly objected to the content of "Filthy Words," and sent a written complaint to the FCC within a few weeks of the broadcast. The FCC forwarded the complaint to the Pacifica Foundation, which responded that the monologue had been played as part of a serious examination of changing attitudes toward language, and that before the program listeners had been warned that it included "sensitive language which might be regarded as offensive to some." The Pacifica Foundation also advanced the view that George Carlin was a significant social satirist who used the potentially offensive language to "satirize as harmless and essentially silly our attitudes toward those words." The FCC ruled onthe matter on 21 February 1975, finding in favor of the complainant and stating that the Pacifica Foundation could have been "the subject of administrative sanctions." The legal basis for the FCC's decision rested in 18 U.S.C. 1464 (1976) (hereinafter referred to as 1464), which forbids use of "any obscene, indecent, or profane language by means of radio communications," and 47 U.S.C. 303, which requires the FCC to "encourage the larger and more effective use of radio in the public interest." Finally, the FCC advanced the position that it did not seek to prohibit the use of patently offensive speech but onlyto restrict its use to those times of day when it was unlikely that childrenwould be in the audience.
Legal Proceedings
The Pacifica Foundation appealed the FCC ruling to the three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. By a 2-1 countthe court of appeals reversed the FCC decision. The two judges favoring reversal were divided in their view of the case. Judge Tamm felt that the FCC hadacted in violation of section 326 of the Communications Act, which forbids censorship. Chief Judge Bazelon observed that 326 does not cover language as described in 1464, but concurred in the decision due to his feeling that the provisions of 1464 should be interpreted more narrowly than was done in this case. The FCC appealed the case to the Supreme Court, which heard arguments on18 and 19 April 1978.
The Court delivered its decision on 3 July 1978, reversing the decision of the court of appeals and upholding the FCC's right to regulate the broadcast ofpatently offensive language. Justice Stevens, writing for the majority, viewed the case as hinging on three questions: whether the form of censorship suggested by the FCC violated 326; whether the monologue was indecent within thedefinitions set forth in 1464; and whether the FCC order against the Pacifica Foundation constituted a violation of the First Amendment. On the first question the Court concluded that 326 did not preclude the subsequent review ofprogramming that had already aired, and that it was "perfectly clear" that 326 "was not intended to limit the Commission's power to regulate the broadcastof obscene, indecent, or profane language." Similarly, the Court ruled thatthe language contained in "Filthy Words" did qualify as indecent within the parameters of 1464. Finally, the Court ruled that the FCC's sanction of the Pacifica Foundation did not constitute a violation of the First Amendment, citing a precedent in the case of Red Lion Broadcasting Co. v. Federal Communications Commission (1969). In Red Lion the Court ruled that individuals do not have a constitutional right to communicate by broadcasting, since the electromagnetic spectrum can accommodate only a finite number of transmission frequencies. As such broadcasters are required to act in the public interest, since they, in effect, must represent the views of all those unable to obtain a broadcasting license. In fact, the Court decided that the pervasive nature of broadcasting technology, which can project words and images intoanyone's home, justified unique forms of regulation of potentially objectionable material. Despite the apparent decisiveness of the ruling, Justice Stevens took pains to narrow the context of the case. The limited nature of the FCC's action in the case, that is, to merely issue what amounted to a warning and suggest that similar programming should air at hours of the day when children were unlikely to be in the audience, was a factor in the decision, as wasthe obviously intentional offensiveness of "Filthy Words." In the final analysis, however, the actual degree of offensiveness was relatively unimportant:
It is appropriate, in conclusion, to emphasize the narrowness ofour holding . . . As Mr. Justice Sutherland wrote, `a nuisance may merely bea right thing in a wrong place,--like a pig in a parlor instead of the barnyard.' Euclid v. Ambler Realty Co., 272 U.S. 365, 388. We simply hold that when the Commission finds that a pig has entered a parlor, the exercise ofits regulatory power does not depend on proof that the pig is obscene.
Impact
Federal Communications Commission v. Pacifica Foundation established the principle that indecent, as opposed to obscene, speech that is broadcast on the public airwaves is subject to some degree of regulation. The Court's reliance on the definition of obscenity set forth in Miller v. California solidified the use of that definition in adjudicating First Amendment cases. The problem of determining the exact extent of an individual's freedom of speech remains intractable, as the Court was clear that its decision rested onnarrow grounds peculiar to this case, thereby severely constraining the applicability of Federal Communications Commission v. Pacifica Foundationas a legal precedent.
Related Cases
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
- Red Lion Broadcasting Co. v. Federal Communications Commission, 395 U.S. 367 (1969).
- Miller v. California, 413 U.S. 15 (1973).
- New York v. Ferber, 458 U.S. 747 (1982).
Freedom to Broadcast
The Supreme Court clearly extended First Amendment protections to the electronic media of radio and television. However, since these media can only operate over a limited number of public airways or frequencies, the government mayregulate them to assure operational effectiveness and public benefit. Such limitations are considered prior restraint in the print media and not allowed.
Congress created the Federal Communications Commission (FCC) to implement itsregulations over broadcasting. The FCC issues licenses to broadcast over specific airways, requires broadcasters to provide coverage of public interest issues, and prohibits certain language on the air. Licenses must be awarded neutrally so as not to favor one broadcaster's views over another's.
In the 1940s, the FCC developed a policy known as the "fairness doctrine." The doctrine required broadcasters to provide the opportunity for an individualwhose views or records were attacked on air to respond. However, in 1987 theFCC voted to discard the doctrine. In two rulings in the 1970s the Court held that airing all views was not possible. Broadcasters retained the discretion of which views to air. Despite legal challenges, the FCC maintains authority to restrict hours during which offensive programming may be aired.
Sources
Hindman, Elizabeth B. Rights vs. Responsibilities: The Supreme Court and the Media. Westport, CT: Greenwood Press, 1997.
Should Stand-Up Comics Be Censored?
In 1964, Lenny Bruce was brought to trial for using obscene words during a stand-up routine. Whereas mainstream comedians of his era remain in the popularimagination chiefly for their jokes, Bruce , who died in 1966, is viewed asan avant-garde figure who stood for free speech.
But some would ask if Bruce stood for free speech or filthy speech. Using thestandards adopted by the Supreme Court in later obscenity cases, was there any "redeeming social value" to Bruce's humor?
Defenders of Bruce, on the other hand--a group which includes a number of civil libertarians--would say that the free speech of a foul-mouthed comedian isall the more to be protected precisely because it does offend many people. If a society can decide which types of free speech to protect, and which to let fall prey to censorship, who can say where the lines will be drawn? Perhapsthe very religious groups who would be least likely to feel sympathetic toward a Lenny Bruce might find themselves the next target for censorship.
Sources
Daniel, Clifton, ed. Chronicle of the Twentieth Century. Mt. Kisko, NY: Chronicle, 1987.
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