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FCC v. Pacifica Foundation

Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), was a landmark decision of the United States Supreme Court that upheld the ability of the Federal Communications Commission (FCC) to regulate indecent content sent over the broadcast airwaves.[1]

FCC v. Pacifica Foundation
Supreme Court of the United States
Argued April 18–19, 1978
Decided July 3, 1978
Full case nameFederal Communications Commission v. Pacifica Foundation, et al.
Citations438 U.S. 726 (more)
98 S. Ct. 3026; 57 L. Ed. 2d 1073; 1978 U.S. LEXIS 135; 43 Rad. Reg. 2d (P & F) 493; 3 Media L. Rep. 2553
Case history
PriorComplaint granted, 56 F.C.C.2d 94 (1975); reversed, 556 F.2d 9 (D.C. Cir. 1977); cert. granted, 434 U.S. 1008 (1978).
Holding
Because of the pervasive nature of broadcasting, it has less First Amendment protection than other forms of communication. The F.C.C. was justified in concluding that Carlin's "Filthy Words" broadcast, though not obscene, was indecent, and subject to restriction.
Court membership
Chief Justice
Warren E. Burger
Associate Justices
William J. Brennan Jr. · Potter Stewart
Byron White · Thurgood Marshall
Harry Blackmun · Lewis F. Powell Jr.
William Rehnquist · John P. Stevens
Case opinions
MajorityStevens (Parts I, II, III, and IV-C), joined by Burger, Blackmun, Powell, Rehnquist
ConcurrenceStevens (Parts IV-A and IV-B), joined by Burger, Rehnquist
ConcurrencePowell, joined by Blackmun
DissentBrennan, joined by Marshall
DissentStewart, joined by Brennan, White, Marshall
Laws applied
U.S. Const. amend. I; 18 U.S.C. § 1464

Background

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On the afternoon of October 30, 1973, radio station WBAI in New York City, owned by the nonprofit Pacifica Foundation, aired a program about societal attitudes toward language and included the monologue "Seven Words You Can Never Say on Television" by comedian George Carlin, from his 1972 album Class Clown. The broadcast included Carlin's recitation of the words "shit", "piss", "fuck", "cunt", "cocksucker", "motherfucker", and "tits".[2][3]

 
In reference to this case, a poster in a WBAI broadcast studio warns radio broadcasters against using the seven dirty words.

John Douglas, an active member of Morality in Media, filed a complaint with the Federal Communications Commission (FCC) claiming that he had heard the broadcast on his car radio while driving with his young son, and that the content was inappropriate for minors per the FCC's rules on indecency over the public broadcast airwaves.[4] Douglas also noted that the material should not have been broadcast during the daytime (it was approximately 2:00pm) when minors were more likely to be listening, per the FCC's rule requiring adult-oriented programming to only be broadcast during late-night hours.[1]

The FCC forwarded Douglas's complaint to Pacifica Foundation for comment. The foundation replied that the program was intended to be educational, addressing public attitudes toward language, and that Carlin was "a significant social satirist" who "like Twain and Sahl before him, examines the language of ordinary people... using words to satirize as harmless and essentially silly our attitudes towards those words." Pacifica also noted that it had received no other public complaints about the broadcast.[1]

In February 1975, the FCC issued a declaratory order stating that Pacifica and WBAI "could have been the subject of administrative sanctions."[1] While no such sanctions were enacted, the FCC recorded the incident in the station's file for later consideration if there were customer complaints about the station in the future or if its broadcasting license was up for renewal. The order noted that regulations on indecent broadcast content had indeed been violated by WBAI.[5] The order also explained that the Carlin routine was "patently offensive" and "deliberately broadcast" at a time when minors could have been listening, which were forbidden per the Communications Act of 1934.[1]

Pacifica Foundation challenged the declaratory order, on First Amendment grounds, to the Circuit Court for the District of Columbia. In March 1977, the circuit court reversed the FCC's order against Pacifica, ruling it to be censorship of a type that was also prohibited by the Communications Act of 1934. The court also held that the order was overbroad by failing to define the public interest that it was trying to serve, beyond poorly-defined protection of an unknown number of children in the audience, while confusing the definition of obscenity (unacceptable for all audiences) as opposed to content that is merely indecent (acceptable for some audiences such as consenting adults).[6]

Given the apparently conflicting provisions of the 1934 Act that were raised in the circuit court ruling, the FCC appealed to the U.S. Supreme Court. The high court accepted the case in 1978 and resolved to reconcile the Act's restrictions on indecent broadcasting content with its prohibition of censorship.[1]

Supreme Court opinion

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The Supreme Court primarily addressed the matter of whether government regulation of broadcasting content comports with the free speech rights of broadcast operators under the First Amendment.[7] The high court ruled 5–4 in favor of the FCC, holding that the Carlin routine was "indecent but not obscene". Therefore, the Commission could not ban such content outright, but it could restrict broadcasts to certain times of day. This was because the Commission had the authority to shield children from potentially offensive material, and to ensure that unwanted speech does not intrude on the privacy of one's home.[1]

In light of First Amendment concerns, the high court held that government regulation of broadcasting content, when in the form of a partial restriction but not a total ban, is not considered censorship. This is because of the "uniquely pervasive" nature of the broadcast airwaves, that in turn are "uniquely accessible to children". The court held that these two concerns were sufficient to "justify special treatment of indecent broadcasting," thereby allowing the FCC to sanction broadcasters for airing inappropriate content that violates the provisions of the Communications Act of 1934.[1] Thus, the Commission's warning to Pacifica about broadcasting the Carlin routine in the afternoon was found to be an acceptable regulatory action.[8]

If the Carlin routine had included obscenity, the FCC could have banned it from the broadcast airwaves outright. Since the routine was merely indecent (unacceptable for some audiences but acceptable for others), the FCC could not ban the content but could restrict it to certain times of day. This became known as the FCC's safe harbor rule.[9]

The ruling gave the FCC broad leeway to determine what constituted indecency in different contexts.[10] Conversely, it would be acceptable for Pacifica or any other radio station to broadcast the Carlin routine, or any similarly indecent material, outside of the daytime safe harbor hours when vulnerable audiences like children are more likely to be listening.[11]

Impact

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The Pacifica ruling is often cited as one of the most important precedents in American broadcasting law and the U.S. government's ability to regulate mass media content.[12] The case is also cited for clarifying the potential conflict between the government's interest in protecting audiences and a broadcaster's First Amendment rights,[13] though the Supreme Court's interpretation is sometimes criticized for its inconsistency and inability to adapt to new media technologies or trends in popular content.[14][15] The case is also an important precedent for determining the differences between obscene and indecent content and appropriate regulatory reactions to them.[16]

George Carlin has been credited for his role in this turning point for the law. In 1997, Pacifica Radio host Larry Bensky prefaced an interview with Carlin by saying: "George Carlin, you're a very unusual guest for Pacifica Radio. You're probably the only person in the United States that we don't have to give The Carlin Warning to about which words you can't say on this program, because it's named after you."[17][18]

Despite its victory in Pacifica, the FCC at first used its new safe harbor regulatory powers sparingly. In the 1990s, however, the FCC ramped up sanctions for indecent broadcasts. By the early 2000s, the Commission began to levy more sanctions with higher dollar amounts–with fines of up to $500,000 for some offenses.[19] Such actions have been inconsistent and sometimes raise accusations of selective enforcement.[20]

References

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  1. ^ a b c d e f g h FCC v. Pacifica Foundation, 438 U.S. 726 (S. Ct., 1978).
  2. ^ "George Carlin, Filthy Words". Exploring Constitutional Conflicts. Retrieved December 18, 2016. The following is a verbatim transcript of "Filthy Words" (the George Carlin monologue at issue in the Supreme Court case of FCC v. Pacifica Foundation) prepared by the Federal Communications Commission...
  3. ^ James Sullivan: Seven Dirty Words: The Life and Crimes of George Carlin. ISBN 9780786745920. p. 4
  4. ^ "Boca Man Forever Linked To George Carlin". WPEC. June 23, 2008. Archived from the original on June 28, 2008. Retrieved February 18, 2014.
  5. ^ Samaha, Adam. "The Story of FCC v. Pacifica Foundation (and Its Second Life)" (PDF). Archived from the original (PDF) on April 19, 2011. Retrieved October 5, 2011.
  6. ^ Pacifica Foundation v. FCC, 556 F. 2d 9 (D.C. Cir., 1977).
  7. ^ Arnold, Fran Avery; Cameron, Cara Ebert (1979). "Broadcasters' First Amendment Rights through the Courts with the Seven Dirty Words: F.C.C. v. Pacifica Foundation". Nova Law Journal. 3 (1): 271 – via HeinOnline.
  8. ^ Eichman, Gregor (Spring 1979). "A Pig in the Parlor: F.C.C. v. Pacifica Foundation". Western State University Law Review. 6 (2): 290–292 – via HeinOnline.
  9. ^ Kerrigan, Wade (October 1993). "FCC Regulation of the Radio Industry: A Safe Harbor for Indecent Programming". Iowa Law Review. 79 (1): 150–152 – via HeinOnline.
  10. ^ Levi, Lili (2013). "'Smut and Nothing But': The FCC, Indecency, and Regulatory Transformations in the Shadows". Administrative Law Review. 65 (3): 523 – via HeinOnline.
  11. ^ Spade, Dana R. (Spring 1993). "Incentives and Methods for Compliance with FCC Regulations in Broadcast". Preventive Law Reporter. 12 (1): 19–20 – via HeinOnline.
  12. ^ Tremblay, R. Wilfred (2003). "FCC v. Pacifica Foundation". In Parker, Richard A. (ed.). Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. Tuscaloosa, AL: University of Alabama Press. pp. 218–233. ISBN 978-0-8173-1301-2.
  13. ^ Bloom, Theodore Samuel (1979). "FCC v. Pacifica Foundation: An Indecent (Speech) Decision? – (George Carlin's Filthy Words)". Ohio State Law. 40 (1): 159–161 – via HeinOnline.
  14. ^ Mustin, Scott H. (Winter 1979). "FCC Content Regulation of Cable Pay-Television: The Threat of Pacifica". Cumberland Law Review. 9 (3): 829 – via HeinOnline.
  15. ^ Susca, Margot A.; Proffitt, Jennifer M. (2011). "Patently Offensive: What Pacifica Tells Us About Regulating Broadcast Violence". Free Speech Yearbook. 45 (1): 87–91.
  16. ^ Billingsley, Robert T. (Winter 1979). "Indecent Language: A New Class of Prohibitable Speech - FCC v. Pacifica Foundation". University of Richmond Law Review. 13 (2): 311 – via HeinOnline.
  17. ^ Bensky, Larry (June 4, 1997), Living Room : Interview With Comedian George Carlin, Pacifica Radio Archives, retrieved February 18, 2014
  18. ^ Bensky, Larry (June 4, 1997), PZ0624b Radical Comedians Box Set DISC TWO, Pacifica Radio Archives, retrieved February 18, 2014
  19. ^ Butler, Jordan (Summer 2011). "The FCC in 2010: Seventy-Six Years of Obscenity, Indecency, and Inconsistency". Capital University Law Review. 39 (3): 640–642 – via HeinOnline.
  20. ^ Goldsamt, Seth T. (Winter 1995). "'Crucified by the FCC'? - Howard Stern, the FCC, and Selective Prosecution". Columbia Journal of Law and Social Problems. 28 (2): 220–224 – via HeinOnline.
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