Federal Communications Commission v. Pacifica Foundation

Throughout the history of the United States, tension has existed between the right 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 most types 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.