Federal Communications Commission v. Pacifica Foundation

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 count the 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 had acted 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 on 18 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 of patently 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 the definitions 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 of programming that had already aired, and that it was "perfectly clear" that 326 "was not intended to limit the Commission's power to regulate the broadcast of obscene, indecent, or profane language." Similarly, the Court ruled that the 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 into anyone'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 was the 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 of our holding . . . As Mr. Justice Sutherland wrote, `a nuisance may merely be a 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 of its regulatory power does not depend on proof that the pig is obscene.