FALL 2010
Cyberlaw
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Course ID:  85723 & 85725
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Professor Jay Dratler, Jr.
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Federal Communications Commission v. Pacifica Foundation

438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed. 2d 1073 (1978)

[*729]  Mr. Justice Stevens delivered the opinion of the Court (Parts I, II, III, and IV-C) and an opinion in which the Chief Justice and Mr. Justice Rehnquist joined (Parts IV-A and IV-B):

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, which is appended to this opinion, indicates frequent laughter from the audience.(1)

At about 2 o'clock in the afternoon on Tuesday, October 30, 1973, a New York radio station, owned by respondent Pacifica [*730] 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.  He stated that, although he could perhaps understand the "record's being sold for private use, I certainly cannot understand the broadcast of same over the air that, supposedly, you control."

The complaint was forwarded to the station for comment.  In its response, 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."
Pacifica stated that it was not aware of any other complaints about the broadcast.

On February 21, 1975, the 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."(2)

[*731] In its memorandum opinion the Commission stated that it intended to "clarify the standards which will be utilized in considering" the growing number of complaints about indecent speech on the airwaves.   Advancing several reasons for treating broadcast speech differently from other forms of expression,(3) 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."

The Commission characterized the language used in the Carlin monologue as "patently offensive," though not necessarily obscene[.] * * * [*732] * * *

* * * [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."

After the order issued, the Commission was asked to clarify its opinion by ruling that the broadcast of indecent words as part of a live newscast would not be prohibited.  The Commission issued another opinion in which it pointed out that [*733] it "never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it."  The Commission noted that its "declaratory order was issued in a specific factual context," and declined to comment on various hypothetical situations presented by the petition.(4) It relied on its "long standing policy of refusing to issue interpretive rulings or advisory opinions when the critical facts are not explicitly stated or there is a possibility that subsequent events will alter them."

The United States Court of Appeals for the District of Columbia Circuit reversed . . . .

* * * [*734] * * *

Having granted the Commission's petition for certiorari, we must decide: * * * (2) whether the Commission's order was a form of censorship forbidden by § 326; (3) whether the broadcast was indecent within the meaning of § 1464; and (4) whether the order violates the First Amendment of the United States Constitution.

* * * [*735] * * *

II

The relevant statutory questions are whether the Commission's action is forbidden "censorship" within the meaning of 47 U. S. C. § 326 and whether speech that concededly is not obscene may be restricted as "indecent" under the authority of 18 U. S. C. § 1464 (1976 ed.).  The questions are not unrelated, for the two statutory provisions have a common origin. Nevertheless, we analyze them separately.

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."

44 Stat. 1172.

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.

[*736] 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."(5)

[*737] Not only did the Federal Radio Commission so construe the statute prior to 1934; its successor, the Federal Communications Commission, has consistently interpreted the provision in the same way ever since. . . .  And, until this case, the Court of Appeals for the District of Columbia Circuit has consistently agreed with this construction. * * *

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 [*738] the anticensorship provision and the Commission's authority to impose sanctions for the broadcast of indecent or obscene language.  * * *

We conclude, therefore, that § 326 does not limit the Commission's authority to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting.

III

The only other statutory question presented by this case is whether the afternoon broadcast of the "Filthy Words" [*739] monologue was indecent within the meaning of § 1464.(6)  Even that question is narrowly confined by the arguments of the parties.

* * * Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive.  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 [*740] 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.(7)

Pacifica argues, however, that this Court has construed the term "indecent" in related statutes to mean "obscene," as that term was defined in Miller v. California, 413 U.S. 15.  * * *

[*741] The reasons [for this construction] of § 1461 do not apply to § 1464.  Although the history of the former revealed a primary concern with the prurient, the Commission has long interpreted § 1464 as encompassing more than the obscene.(8)  The former statute deals primarily with printed matter enclosed in sealed envelopes mailed from one individual to another; the latter deals with the content of public broadcasts.  It is unrealistic to assume that Congress intended to impose precisely the same limitations on the dissemination of patently offensive matter by such different means.(9)

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.  [*742]

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.

The approach is also consistent with Red Lion Broadcasting Co. v. FCC, 395 U.S. 367.  In that case the Court rejected an argument that the Commission's regulations defining the fairness doctrine were so vague that they would inevitably abridge the broadcasters' freedom of speech.  The Court of Appeals had invalidated the regulations because their vagueness might lead to self-censorship of controversial program [*743] content.  This Court reversed.  After noting that the Commission had indicated, as it has in this case, that it would not impose sanctions without warning in cases in which the applicability of the law was unclear, the Court stated:
    "We need not approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable, but will deal with those problems if and when they arise."
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.(10)  While some of these references may be protected, they surely lie at the periphery of First Amendment concern.  The danger dismissed so summarily in Red Lion, in contrast, was that broadcasters would respond to the vagueness of the regulations by refusing to present programs dealing with important social and political controversies.  Invalidating any rule on the basis of its hypothetical application to situations not before the Court is strong medicine to be applied sparingly and only as a last resort.  We decline to administer that medicine to preserve the vigor of patently offensive sexual and excretory speech.

[*744] 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.(11)  For if the government has any such power, this was an appropriate occasion for its exercise.

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, 249 U.S. 47, 52:
    "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 [*745] 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.  It may pay heed to the "‘commonsense differences' between commercial speech and other varieties."  It may treat libels against private citizens more severely than libels against public officials.  Obscenity may be wholly prohibited.  Miller v. California, 413 U.S. 15.  And only two Terms ago we refused to hold that a statutory classification is unconstitutional because it is based on the content of communication protected by the First Amendment.

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, 354 U.S. 476.  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 [*746] 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(12)—First Amendment protection might be required.  But that is simply not this case.  These words offend for the same reasons that obscenity offends.(13)  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."  Chaplinsky v. New Hampshire, 315 U.S., at 572.

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, [*747] 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.  Cohen v. California, 403 U.S. 15, 25.(14)

In this case it is undisputed that the content of Pacifica's broadcast was "vulgar," "offensive," and "shocking."  Because content of that character is not entitled to absolute constitutional protection under all circumstances, we must consider its [*748] context in order to determine whether the Commission's action was constitutionally permissible.

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, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 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, 395 U.S. 367.

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. Rowan v. Post Office Dept., 397 U.S. 728.  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 [*749] 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.(15)

Second, broadcasting is uniquely accessible to children, even those too young to read.  Although Cohen's written message might have been incomprehensible to a first grader, 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.  We held in Ginsberg v. New York, 390 U.S. 629, 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. [*750](16)  The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.

It is appropriate, in conclusion, to emphasize the narrowness of our holding.  This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy.  We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution.  The Commission's decision rested entirely on a nuisance rationale under which context is all-important.  The concept requires consideration of a host of variables.  The time of day was emphasized by the Commission.  The content of the program in which the language is used will also affect the composition of the audience,(17) and differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant.  As Mr. Justice Sutherland wrote, a "nuisance may be merely a right thing in the wrong place,—like a pig in the 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 the parlor, the exercise [*751] of its regulatory power does not depend on proof that the pig is obscene.

The judgment of the Court of Appeals is reversed.  It is so ordered.

* * *


Mr. Justice Powell, with whom Mr. Justice Blackmun joins, concurring in part and concurring in the judgment:

I join Parts I, II, III, and IV-C of Mr. Justice Stevens' opinion. * * * [*756] * * *

I also agree with much that is said in Part IV of Mr. Justice Stevens' opinion, and with its conclusion that the Commission's holding in this case does not violate the First Amendment.  Because I do not subscribe to all that is said in Part IV, however, I state my views separately.

I

It is conceded that the monologue at issue here is not obscene in the constitutional sense.  * * * [*757]

But it also is true that the language employed is, to most people, vulgar and offensive.  * * *

The issue, however, is whether the Commission may impose civil sanctions on a licensee radio station for broadcasting the monologue at two o'clock in the afternoon.  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."  Erznoznik v. Jacksonville, 422 U.S. 205, 212 (1975) . . . .  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."  Ginsberg v. New York, 390 U.S. 629, 649-650 (1968) (Stewart, J., concurring in result).  Thus, children may not be able to protect themselves from speech which, although shocking to most adults, generally may be avoided by the unwilling [*758] 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.

In most instances, the dissemination of this kind of speech to children may be limited without also limiting willing adults' access to it.  Sellers of printed and recorded matter and exhibitors of motion pictures and live performances may be required to shut their doors to children, but such a requirement has no effect on adults' access.  The difficulty is that such a physical separation of the audience cannot be accomplished in the broadcast media.  During most of the broadcast hours, both adults and unsupervised children are likely to be in the broadcast audience, and the broadcaster cannot reach willing adults without also reaching [*759] children.  This, as the Court emphasizes, is one of the distinctions between the broadcast and other media to which we often have adverted as justifying a different treatment of the broadcast media for First Amendment purposes.  In my view, the Commission was entitled to give substantial weight to this difference in reaching its decision in this case.

A second difference, not without relevance, is that broadcasting—unlike most other forms of communication—comes directly into the home, the one place where people ordinarily have the right not to be assaulted by uninvited and offensive sights and sounds.  Although the First Amendment may require unwilling adults to absorb the first blow of offensive but protected speech when they are in public before they turn away, a different order of values obtains in the home.  That we are often "captives" outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere.  The Commission also was entitled to give this factor appropriate weight in the circumstances of the instant case.  This is not to say, however, that the Commission has an unrestricted license to decide what speech, protected in other media, may be banned from the airwaves in order to protect [*760] unwilling adults from momentary exposure to it in their homes.(18)  Making the sensitive judgments required in these cases is not easy.  But this responsibility has been reposed initially in the Commission, and its judgment is entitled to respect.

* * * It is said that this ruling will have the effect of reducing the adult population to hearing only what is fit for children.  This argument is not without force.  The Commission certainly should consider it as it develops standards in this area.  But it is not sufficiently strong to leave the Commission powerless to act in circumstances such as those in this case.

The Commission's holding does not prevent willing adults from purchasing Carlin's record, from attending his performances, or, indeed, from reading the transcript reprinted as an appendix to the Court's opinion.  On its face, it does not prevent respondent Pacifica Foundation from broadcasting the monologue during late evening hours when fewer children are likely to be in the audience, nor from broadcasting discussions of the contemporary use of language at any time during the day.  The Commission's holding, and certainly the Court's holding today, does not speak to cases involving the isolated [*761] use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here.  In short, I agree that on the facts of this case, the Commission's order did not violate respondent's First Amendment rights.

II

* * * I do not[,] . . . however, . . . 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.  In my view, the result in this case does not turn on whether Carlin's monologue, viewed as a whole, or the words that constitute it, have more or less "value" than a candidate's campaign speech.  This is a judgment for each person to make, not one for the judges to impose upon him.(19)

* * * [*762] * * *

Mr. Justice Brennan, with whom Mr. Justice Marshall joins, dissenting:

I agree with Mr. Justice Stewart that, under [precedent] the word "indecent" in 18 U. S. C. § 1464 must be construed to prohibit only obscene speech.  I would, therefore, normally refrain from expressing my views on any constitutional issues implicated in this case.  However, 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.

I

For the second time in two years, the Court refuses to embrace the notion, completely antithetical to basic First Amendment values, that the degree of protection the First [*763] Amendment affords protected speech varies with the social value ascribed to that speech by five Members of this Court.  * * * [*764] * * *

A

Without question, the privacy interests of an individual in his home are substantial and deserving of significant protection.  In finding these interests sufficient to justify the content regulation of protected speech, however, the 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.
    "The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.  Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections."
Cohen v. California, supra, at 21.

* * * I believe that an individual's actions in switching on [*765] and listening to communications transmitted over the public airways and directed to the public at large do not implicate fundamental privacy interests, even when engaged in within the home.  Instead, because the radio is undeniably a public medium, these actions are more properly viewed as a decision to take part, if only as a listener, in an ongoing public discourse.  Although an individual's decision to allow public radio communications into his home undoubtedly does not abrogate all of his privacy interests, the residual privacy interests he retains vis-a-vis the communication he voluntarily admits into his home are surely no greater than those of the people present in the corridor of the Los Angeles courthouse in Cohen who bore witness to the words "Fuck the Draft" emblazoned across Cohen's jacket.  Their privacy interests were held insufficient to justify punishing Cohen for his offensive communication.

Even if an individual who voluntarily opens his home to radio communications retains privacy interests of sufficient moment to justify a ban on protected speech if those interests are invaded in an essentially intolerable manner, the very fact that those interests are threatened only by a radio broadcast precludes any intolerable invasion of privacy; for unlike other intrusive modes of communication, such as sound trucks, the radio can be turned off—and with a minimum of effort.  * * *  Whatever the minimal discomfort suffered by a [*766] listener who inadvertently tunes into a program he finds offensive during the brief interval before he can simply extend his arm and switch stations or flick the "off" button, it is surely worth the candle to preserve the broadcaster's right to send, and the right of those interested to receive, a message entitled to full First Amendment protection.  To reach a contrary balance, as does the Court, is clearly, to follow Mr. Justice Stevens' reliance on animal metaphors, to burn the house to roast the pig.

* * * [*767] * * *

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.(20)  It thus ignores our recent admonition [*768] that speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.(21)  The Court's refusal to follow its own pronouncements is especially lamentable since it has the anomalous subsidiary effect, at least in the radio context at issue here, of making completely unavailable to adults material which may not constitutionally be kept even from children. * * * [*769]

* * * The opinion of my Brother Powell acknowledges that there lurks in today's decision a potential for reducing the adult population to hearing only what is fit for children but expresses faith that the FCC will vigilantly prevent this potential from ever becoming a reality.  I am far less certain than my Brother Powell that such faith in the Commission is warranted; and even if I shared it, I could not so easily shirk the responsibility assumed by each Member of this Court jealously to guard against encroachments on First Amendment freedoms.

* * * [T]he timehonored right of a parent to raise his child as he sees fit . . . . supports a [*770] result directly contrary to that reached by the Court.  * * *  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.(22)

C

As demonstrated above, neither of the factors relied on by both the opinion of my Brother Powell and the opinion of my Brother Stevens—the intrusive nature of radio and the presence of children in the listening audience—can, when taken on its own terms, support the FCC's disapproval of the Carlin monologue.  These two asserted justifications are further plagued by a common failing: the lack of principled limits on their use as a basis for FCC censorship.  No such limits come readily to mind . . . .  Taken to their logical extreme, these rationales would support the cleansing of public [*771] radio of any "four-letter words" whatsoever, regardless of their context.  The rationales could justify the banning from radio of a myriad of literary works, novels, poems, and plays by the likes of Shakespeare, Joyce, Hemingway, Ben Jonson, Henry Fielding, Robert Burns, and Chaucer; they could support the suppression of a good deal of political speech, such as the Nixon tapes; and they could even provide the basis for imposing sanctions for the broadcast of certain portions of the Bible.(23)

* * * [M]y Brother Powell is content to rely upon the judgment of the [*772] Commission while my Brother Stevens deems it prudent to rely on this Court's ability accurately to assess the worth of various kinds of speech.(24)  For my own part, even accepting that this case is limited to its facts, I would place the responsibility and the right to weed worthless and offensive communications from the public airways where it belongs and where, until today, it resided: in a public free to choose those communications worthy of its attention from a marketplace unsullied by the censor's hand.

II

* * * [*773] * * * The idea that the content of a message and its potential impact on any who might receive it can be divorced from the words that are the vehicle for its expression is transparently fallacious.  A given word may have a unique capacity to capsule an idea, evoke an emotion, or conjure up an image.  Indeed, for those of us who place an appropriately high value on our cherished First Amendment rights, the word "censor" is such a word.  * * * [E]ven if an alternative phrasing may communicate a speaker's abstract ideas as effectively as those words he is forbidden to use, it is doubtful that the sterilized message will convey the emotion that is an essential part of so many communications.  This, too, was apparent to Mr. Justice Harlan and the Court in Cohen:
    "[We] cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys [*774] not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well.  In fact, words are often chosen as much for their emotive as their cognitive force.  We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated."
* * *  The opinions of my Brethren display both a sad insensitivity to the fact that . . . alternatives [to radio] involve the expenditure of money, time, and effort that many of those wishing to hear Mr. Carlin's message may not be able to afford, and a naive innocence of the reality that in many cases, the medium may well be the message.

* * * [*775] * * *

Both those desiring to receive Carlin's message over the radio and those wishing to send it to them are prevented from doing so by the Commission's actions.  Although, as my Brethren point out, Carlin's message may be disseminated or received by other means, this is of little consolation to those broadcasters and listeners who, for a host of reasons, not least among them financial, do not have access to, or cannot take advantage of, these other means.

Moreover, it is doubtful that even those frustrated listeners in a position to follow my Brother Powell's gratuitous advice and attend one of Carlin's performances or purchase one of his records would receive precisely the same message Pacifica's radio station sent its audience.  The airways are capable not only of carrying a message, but also of transforming it.  A satirist's monologue may be most potent when delivered to a live audience; yet the choice whether this will in fact be the manner in which the message is delivered and received is one the First Amendment prohibits the government from making.

III

[*776] * * * The words that the Court and the Commission find so unpalatable may be the stuff of everyday conversations in some, if not many, of the innumerable subcultures that compose this Nation.  Academic research indicates that this is indeed the case.  As one researcher concluded, "[words] generally considered obscene like ‘bullshit' and ‘fuck' are considered neither obscene nor derogatory in the [black] vernacular except in particular contextual situations and when used with certain intonations."  C. Bins, "Toward an Ethnography of Contemporary African American Oral Poetry," Language and Linguistics Working Papers No. 5, p. 82 (Georgetown Univ. Press 1972).  Cf. Keefe v. Geanakos, 418 F.2d 359, 361 (1st Cir. 1969) (finding the use of the word "motherfucker" commonplace among young radicals and protesters).

Today's decision will thus have its greatest impact on broadcasters desiring to reach, and listening audiences composed of, persons who do not share the Court's view as to which words or expressions are acceptable and who, for a variety of reasons, including a conscious desire to flout majoritarian conventions, express themselves using words that may be regarded as offensive by those from different socio-economic backgrounds.(25) [*777]  In this context, the Court's decision may be seen for what, in the broader perspective, it really is: another of the dominant culture's inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking.

* * *

Mr. Justice Stewart, with whom Mr. Justice Brennan, Mr. Justice white, and Mr. 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. * * *

[*778]  The statute pursuant to which the Commission acted, 18 U. S. C. § 1464,(26) makes it a federal offense to utter "any obscene, indecent, or profane language by means of radio communication."  The Commission held, and the Court today agrees, that "indecent" is a broader concept than "obscene" as the latter term was defined in Miller v. California, 413 U.S. 15, because language can be "indecent" although it has social, political, or artistic value and lacks prurient appeal.  But this construction of § 1464, while perhaps plausible, is by no means compelled.  To the contrary, 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 [*779] would be constitutionally protected outside the context of electronic broadcasting.

* * *


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Footnotes

1.   [Professor's note: to read Carlin's monologue, click on button below, wait for your browser to load, and then click on the button labeled "Jump to cited page 751 within this case" at upper left. Warning: the monologue contains indecent language that may be shocking to some. Read monologue]


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2.   [Court's footnote 1] The Commission noted:

    "Congress has specifically empowered the FCC to (1) revoke a station's license (2) issue a cease and desist order, or (3) impose a monetary forfeiture for a violation of Section 1464, 47 U. S. C. [§§] 312 (a), 312 (b), 503 (b)(1)(E).  The FCC can also (4) deny license renewal or (5) grant a short term renewal, 47 U. S. C. [§§] 307, 308."

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3.   [Court's footnote 2]

    "Broadcasting requires special treatment because of four important considerations: (1) children have access to radios and in many cases are unsupervised by parents; (2) radio receivers are in the home, a place where people's privacy interest is entitled to extra deference; (3) unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast; and (4) there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest.  Of special concern to the Commission as well as parents is the first point regarding the use of radio by children."

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4.   [Court's footnote 7] The Commission did, however, comment:

    "[In] some cases, public events likely to produce offensive speech are covered live, and there is no opportunity for journalistic editing.  Under these circumstances we believe that it would be inequitable for us to hold a licensee responsible for indecent language. . . .  We trust that under such circumstances a licensee will exercise judgment, responsibility, and sensitivity to the community's needs, interests and tastes."

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5.   [Court's footnote 10] In KFKB Broadcasting Assn. v.  Federal Radio Comm'n, 47 F.2d 670 (D.C. Cir. 1931), a doctor who controlled a radio station as well as a pharmaceutical association made frequent broadcasts in which he answered the medical questions of listeners.  He often prescribed mixtures prepared by his pharmaceutical association.  The Commission determined that renewal of the station's license would not be in the public interest, convenience, or necessity because many of the broadcasts served the doctor's private interests.  In response to the claim that this was censorship in violation of § 29 of the 1927 Act, the Court held:

    "This contention is without merit.  There has been no attempt on the part of the commission to subject any part of appellant's broadcasting matter to scrutiny prior to its release.  In considering the question whether the public interest, convenience, or necessity will be served by a renewal of appellant's license, the commission has merely exercised its undoubted right to take note of appellant's past conduct, which is not censorship."
In Trinity Methodist Church, South v. Federal Radio Comm'n, 62 F.2d 850 (D. C. Cir.), cert. denied 288 U.S. 599 (1932), the station was controlled by a minister whose broadcasts contained frequent references to "pimps" and "prostitutes" as well as bitter attacks on the Roman Catholic Church.  The Commission refused to renew the license, citing the nature of the broadcasts.  The Court of Appeals affirmed, concluding that First Amendment concerns did not prevent the Commission from regulating broadcasts that "offend the religious susceptibilities of thousands . . . or offend youth and innocence by the free use of words suggestive of sexual immorality."  The court recognized that the licensee had a right to broadcast this material free of prior restraint, but "this does not mean that the government, through agencies established by Congress, may not refuse a renewal of license to one who has abused it."

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6.   [Court's footnote 11] In addition to § 1464, the Commission also relied on its power to regulate in the public interest under 47 U. S. C. § 303 (g).  We do not need to consider whether § 303 may have independent significance in a case such as this.  The statutes authorizing civil penalties incorporate § 1464, a criminal statute.  See 47 U. S. C. §§ 312 (a)(6), 312 (b)(2), and 503 (b)(1)(E).  But the validity of the civil sanctions is not linked to the validity of the criminal penalty.  * * * Accordingly, we need not consider any question relating to the possible application of § 1464 as a criminal statute.


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7.   [Court's footnote 14] Webster defines the term as "a: altogether unbecoming: contrary to what the nature of things or what circumstances would dictate as right or expected or appropriate: hardly suitable: UNSEEMLY . . . b: not conforming to generally accepted standards of morality: . . . ." Webster's Third New International Dictionary (1966).


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8.   [Court's footnote 16]

    "[While] a nudist magazine may be within the protection of the First Amendment . . . the televising of nudes might well raise a serious question of programming contrary to 18 U. S. C. § 1464. . . .  Similarly, regardless of whether the ‘4-letter words' and sexual description, set forth in ‘Lady Chatterly's Lover,' (when considered in the context of the whole book) make the book obscene for mailability purposes, the utterance of such words or the depiction of such sexual activity on radio or TV would raise similar public interest and section 1464 questions."  En banc Programming Inquiry, 44 F. C. C. 2303, 2307 (1960).  * * *

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9.   [Court's footnote 17] This conclusion is reinforced by noting the different constitutional limits on Congress' power to regulate the two different subjects.  Use of the postal power to regulate material that is not fraudulent or obscene raises "grave constitutional questions."  But it is well settled that the First Amendment has a special meaning in the broadcasting context.  See, e. g., . . . Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 . . . .  For this reason, the presumption that Congress never intends to exceed constitutional limits, which supported [narrow construction] of § 1461, does not support a comparable reading of § 1464.


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10.   [Court's footnote 18] A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication.  There are few, if any, thoughts that cannot be expressed by the use of less offensive language.


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11.   [Court's footnote 19] Pacifica's position would, of course, deprive the Commission of any power to regulate erotic telecasts unless they were obscene under Miller v. California.  Anything that could be sold at a newsstand for private examination could be publicly displayed on television.

We are assured by Pacifica that the free play of market forces will discourage indecent programming.  "Smut may," as Judge Leventhal put it, "drive itself from the market and confound Gresham;" the prosperity of those who traffic in pornographic literature and films would appear to justify skepticism.


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12.   [Court's footnote 22] The monologue does present a point of view; it attempts to show that the words it uses are "harmless" and that our attitudes toward them are "essentially silly."  The Commission objects, not to this point of view, but to the way in which it is expressed.  The belief that these words are harmless does not necessarily confer a First Amendment privilege to use them while proselytizing, just as the conviction that obscenity is harmless does not license one to communicate that conviction by the indiscriminate distribution of an obscene leaflet.


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13.   [Court's footnote 23] The Commission stated: "Obnoxious, gutter language describing these matters has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions . . . ."  Our society has a tradition of performing certain bodily functions in private, and of severely limiting the public exposure or discussion of such matters.  Verbal or physical acts exposing those intimacies are offensive irrespective of any message that may accompany the exposure.


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14.   [Court's footnote 25] The importance of context is illustrated by the Cohen case.  That case arose when Paul Cohen entered a Los Angeles courthouse wearing a jacket emblazoned with the words "Fuck the Draft."  After entering the courtroom, he took the jacket off and folded it.  So far as the evidence showed, no one in the courthouse was offended by his jacket.  Nonetheless, when he left the courtroom, Cohen was arrested, convicted of disturbing the peace, and sentenced to 30 days in prison.

In holding that criminal sanctions could not be imposed on Cohen for his political statement in a public place, the Court rejected the argument that his speech would offend unwilling viewers; it noted that "there was no evidence that persons powerless to avoid [his] conduct did in fact object to it."  In contrast, in this case the Commission was responding to a listener's strenuous complaint, and Pacifica does not question its determination that this afternoon broadcast was likely to offend listeners.  It should be noted that the Commission imposed a far more moderate penalty on Pacifica than the state court imposed on Cohen.  Even the strongest civil penalty at the Commission's command does not include criminal prosecution.


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15.   [Court's footnote 27] Outside the home, the balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker, requiring the offended listener to turn away.  As we noted in Cohen v. California:

    "While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue . . . , we have at the same time consistently stressed that we are often ‘captives' outside the sanctuary of the home and subject to objectionable speech."
The problem of harassing phone calls is hardly hypothetical.  Congress has recently found it necessary to prohibit debt collectors from "[placing] telephone calls without meaningful disclosure of the caller's identity"; from "engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number"; and from "[using] obscene or profane language or language the natural consequence of which is to abuse the hearer or reader." Consumer Credit Protection Act Amendments, 91 Stat. 877, 15 U. S. C. § 1692d.

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16.   [Court's footnote 28] The Commission's action does not by any means reduce adults to hearing only what is fit for children.  Adults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear these words.  In fact, the Commission has not unequivocally closed even broadcasting to speech of this sort; whether broadcast audiences in the late evening contain so few children that playing this monologue would be permissible is an issue neither the Commission nor this Court has decided.


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17.   [Court's footnote 29] Even a prime-time recitation of Geoffrey Chaucer's Miller's Tale would not be likely to command the attention of many children who are both old enough to understand and young enough to be adversely affected by passages such as:  "And prively he caughte hire by the queynte."  The Canterbury Tales, Chaucer's Complete Works (Cambridge ed. 1933), p. 58, l.3276.


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18.   [Justice Powell's footnote 2] It is true that the radio listener quickly may tune out speech that is offensive to him.  In addition, broadcasters may preface potentially offensive programs with warnings.  But such warnings do not help the unsuspecting listener who tunes in at the middle of a program.  In this respect, too, broadcasting appears to differ from books and records, which may carry warnings on their face, and from motion pictures and live performances, which may carry warnings on their marquees.


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19.   [Justice Powell's footnote 4] For much the same reason, I also do not join Part IV-A.  I had not thought that the application vel non of overbreadth analysis should depend on the Court's judgment as to the value of the protected speech that might be deterred.  Except in the context of commercial speech, it has not in the past.  As Mr. Justice Stevens points out, however, the Commission's order was limited to the facts of this case; "it did not purport to engage in formal rulemaking or in the promulgation of any regulations."  In addition, since the Commission may be expected to proceed cautiously, as it has in the past, I do not foresee an undue "chilling" effect on broadcasters' exercise of their rights.  I agree, therefore, that respondent's overbreadth challenge is meritless.


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20.   [Justice Brennan's footnote 2] Even if the monologue appealed to the prurient interest of minors, it would not be obscene as to them unless, as to them, "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."  Miller v. California, 413 U.S. 15, 24 (1973).


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21.   [Justice Brennan's footnote 3] It may be that a narrowly drawn regulation prohibiting the use of offensive language on broadcasts directed specifically at younger children constitutes one of the "other legitimate [proscriptions]" alluded to in Erznoznik.  This is so both because of the difficulties inherent in adapting the Miller formulation to communications received by young children, and because such children are "not possessed of that full capacity for individual choice which is the presupposition of the First Amendment guarantees."  Ginsberg v. New York, 390 U.S. 629, 649-650 (1968) (Stewart, J., concurring).  I doubt, as my Brother Stevens suggests, that such a limited regulation amounts to a regulation of speech based on its content, since, by hypothesis, the only persons at whom the regulated communication is directed are incapable of evaluating its content.  To the extent that such a regulation is viewed as a regulation based on content, it marks the outermost limits to which content regulation is permissible.


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22.   [Justice Brennan's footnote 4] The opinions of my Brothers Powell and Stevens rightly refrain from relying on the notion of "spectrum scarcity" to support their result.  As Chief Judge Bazelon noted below, "although scarcity has justified increasing the diversity of speakers and speech, it has never been held to justify censorship."  556 F.2d, at 29 (emphasis in original).  See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 396 (1969).


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23.   [Justice Brennan's footnote 5] See, e. g., I Samuel 25:22: "So and more also do God unto the enemies of David, if I leave of all that pertain to him by the morning light any that pisseth against the wall"; II Kings 18:27 and Isaiah 36:12: "[Hath] he not sent me to the men which sit on the wall, that they may eat their own dung, and drink their own piss with you?"; Ezekiel 23:3: "And they committed whoredoms in Egypt; they committed whoredoms in their youth; there were their breasts pressed, and there they bruised the teats of their virginity."; Ezekiel 23:21: "Thus thou calledst to remembrance the lewdnes of thy youth, in bruising thy teats by the Egyptians for the paps of thy youth." The Holy Bible (King James Version) (Oxford 1897).


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24.   [Justice Brennan's footnote 6] Although ultimately dependent upon the outcome of review in this Court, the approach taken by my Brother Stevens would not appear to tolerate the FCC's suppression of any speech, such as political speech, falling within the core area of First Amendment concern.  The same, however, cannot be said of the approach taken by my Brother Powell, which, on its face, permits the Commission to censor even political speech if it is sufficiently offensive to community standards.  A result more contrary to rudimentary First Amendment principles is difficult to imagine.


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25.   [Justice Brennan's footnote 8] Under the approach taken by my Brother Powell, the availability of broadcasts about groups whose members constitute such audiences might also be affected.  Both news broadcasts about activities involving these groups and public affairs broadcasts about their concerns are apt to contain interviews, statements, or remarks by group leaders and members which may contain offensive language to an extent my Brother Powell finds unacceptable.


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26.   [Justice Stewart's footnote 3] The Court properly gives no weight to the Commission's passing reference in its order to 47 U. S. C. § 303 (g).  For one thing, the order clearly rests only upon the Commission's interpretation of the term "indecent" in § 1464; the attempt by the Commission in this Court to assert that § 303 (g) was an independent basis for its action must fail.  Moreover, the general language of § 303 (g) cannot be used to circumvent the terms of a specific statutory mandate such as that of § 1464.  "[The] Commission's power in this respect is limited by the scope of the statute.  Unless the [language] involved here [is] illegal under § [1464], the Commission cannot employ the statute to make [it] so by agency action."  FCC v. American Broadcasting Co., 347 U.S. 284, 290.


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