Legal Pathways: FCC v. Pacifica Case
THE STORY
There was a comedian named George Carlin who released a live audience recording of a 12-minute monologue called “Filthy Words”. By the title, one can imagine the type of content that this piece contained. Carlin began by speaking about “words that you can never say on the air” and then talked about each word and how it fits within the English language. The comedian got very descriptive and used colorful language throughout the entirety of the program, gaining copious amounts of laughter along the way.
On the afternoon of October 30th, 1973, a radio station in New York decided to broadcast “Filthy Words”. This station was owned by Pacifica Foundation who is the respondent of this case. A father happened to be driving with his son and heard the monologue on the radio. The father was not pleased to hear this content and wrote a letter of complaint to the FCC. Pacifica responded by saying that there was a language warning at the beginning of the program. They also stated that George Carlin was a famous “satirist” who merely wanted to spread comedy about people’s attitudes towards words that are not spoken often because they hold a negative stigma.
The FCC claimed that Pacifica broke statutes in the US Code because of the “offensive” language broadcasted on the radio. Another concern was the exposure of this language to young listeners who may have been in the audience at the time of airing. Pacifica then appeals to The US Court of Appeals for the Washington DC circuit, thus starting the legal process.
THE LEGAL ROUTE
FCC Administrative Adjudication
US Court of Appeals for the Washington DC circuit – Pacifica wins by the court reversing the FCC’s statements.
Supreme Court – Now hearing the case
THE PRECEDENTS
Section 29, Radio Act of 1927 – denies FCC the power of censorship over radio broadcasts and outlaws the utterance of obscene, indecent or profane language over radio broadcast. Note these two prohibitions were later separated into 47 U.S.C. § 326 and 18 U.S.C. § 1464, respectively.
Anti-Defamation League of B’nai B’rith v. FCC – consideration of licensee’s past program content is not tantamount to censorship under the Radio Act. The Radio Act censorship prohibition (47 U.S.C. § 326) has been interpreted as preventing the FCC from engaging in prior restraint.
Miller v. California – Defining the three-part obscenity test: 1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and; 3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Red Lion v. FCC – Upholding the FCC’s authority to implement the now defunct Fairness Doctrine and dismissing the vague argument that in some cases it could encourage broadcasters to censor themselves.
Ginsburg v. New York – The government may regulate the availability of indecent but otherwise protected material in order to preserve the “well-being of its youth,” & “parents’ claim to authority in their own household.”
THE KEY QUESTION
Under the First Amendment can the FCC take control in the decision of broadcasting a radio program because of indecent language?
THE ANSWER AND VOTE
Yes, under the First Amendment the FCC can take control in the decision of broadcasting a radio program because of indecent language. The winner was the FCC. The vote was 5 to 4. Justices Stevens, Burger, Rehnquist, Blackmun and Powell were the majority.
REASONS FOR THE DECISION
Pre-program warnings are not effective enough to protect audiences of the possible profanities that may lie ahead.
Because the broadcast was played during the day a child would have been exposed this “indecent material”, which would have expanded the child’s vocabulary in quite a colorful way.
This was not a program with the occasional expletive; the words were consistently repeated throughout the entire monologue with no chance of missing them.
The “indecent” language of the programs would alter the listeners that would be attracted to the station. It may attract the wrong audiences.
Because this show was a on radio format, there may have been a greater negative impact as opposed to TV or Film formats. “Closed circuit transmissions” may also be a factor.
Other forms of indecent material, like films and books, are unavailable to children. The ease of access to publicly broadcasted material helps “justify the special treatment” towards radio broadcasting restrictions.
POINTS FROM THE DISSENT
It is the decision of the audience members whether they choose to take part in listening to certain content, such as this monologue, on public radio.
If all offensive words were banned by the FCC from the airwaves, there would be classic novels, poems and music that would not be able to be played, which would deprive audiences of literary works and make for a difficult way to find acceptable material to entertain people.
The ruling is said to be an example of “dominant culture” strongly influencing groups who do not share the same values and ways of thinking. There is a fear of trying to conform people to act, think and speak a certain way.
KEY POINT
Under the First Amendment the FCC can take control in the decision of broadcasting a radio program because of the accessibility of content to children, insufficient warnings for adult material, and the consistent use of indecent language.
