U.S. Supreme Court Distinguishes Between "Indecent" and "Obscene"

The U.S. Supreme Court ruled that the Federal Communications Commission, or FCC, can restrict the broadcast of material that is “indecent,” that is, broadcast material does not have to be “obscene” to be restricted or prohibited by the FCC. The ruling also set a legal precedent for the “valuing” of speech by the public.

Date July 3, 1978

Also known as:Federal Communications Commission v. Pacifica Foundation

Locale Washington, D.C.

Key Figures

• John Paul Stevens (b. 1920), justice of the United States
• William Rehnquist (b. 1924), chief justice of the United States
• William J. Brennan (1906-1997), justice of the United States
• Harry M. Plotkin attorney for the Pacifica Foundation
• Joseph A. Marino chief counsel for the FCC
• George Carlin (b. 1937), comedian and actor

Summary of Event

On October 30, 1973, the Pacifica Foundation radio station WBAI (99.5 FM) in New York City had broadcast comedian George Carlin’s twelve-minute monologue “Seven Dirty Words” during a talk show discussing people’s attitudes toward expletive language. Carlin’s monologue consisted of seven four-letter words on sexual and excretory activities; words, he joked, that “you couldn’t say on the public airwaves.” Just before the broadcast, the disc jockey had asked listeners to turn the dial to another station if they believed such language offensive.

The Federal Communications Commission (FCC) received just one complaint about the Carlin monologue; the complaint came one month after the monologue from a New York City man who heard the broadcast while driving with his young son. In response, the FCC issued a declaratory order informing the Pacifica Foundation that it faced possible FCC sanctions. The order also clarified the FCC’s definition of “indecent”: “language that described, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.” Because WBAI aired the Carlin show at 2:00 p.m., a time when children were most likely to be listening, the FCC said it would fine WBAI if it received another complaint or complaints about the broadcast.

Pacifica petitioned the U.S. Court of Appeals to review the order. On March 30, 1976, Pacifica’s attorney Harry M. Plotkin argued that the station was entitled to First Amendment protection from government censorship. The FCC’s indecency standard went too far because it restricted the broadcast of artistic, political, literary, and scientific programs (in other words, programs considered to have “value”). Joseph A. Marino, counsel for the FCC, counterargued that the order neither attempted to censor indecent language nor limit valuable programming, but it did limit the broadcast of indecent language to times during the day when children were least likely to be listening.

A court of appeals overturned the FCC ruling on March 16, 1977. Despite FCC intentions, the court of appeals found that the direct effect of the order was to inhibit the free and robust exchange of ideas on a wide range of issues and subjects. The FCC had ignored both the Communications Act of 1934, which forbade the censoring of radio communications, and its previous decisions that left the question of programming content to the discretion of station owners. The FCC appealed the decision to the U.S. Supreme Court.

On July 3, 1978, the Supreme Court, in Federal Communications Commission v. Pacifica Foundation, ruled 5 to 4 in favor of the FCC. Justice John Paul Stevens, joined by Justice William Rehnquist, delivered the majority opinion of the Court. The Carlin monologue, as broadcast, was indecent and neither the First Amendment nor the Communications Act of 1934 prohibited the FCC from regulating such language. Although the First Amendment generally protected the abridgement of free speech, not all forms of free expression were entitled to absolute constitutional protection. Radio and television broadcasts were subject to lesser First Amendment protection than other communication media because children could easily access radio and television broadcasts. Therefore, it was within the “public interest” of the FCC to regulate offensive programming.

Justice William J. Brennan delivered the dissenting opinion, in which he argued that the word “indecent” can be construed only to prohibit “obscene” speech, and not speech that is “indecent,” as the majority opinion argued. Brennan argued that neither the capacity for the broadcast to intrude into unwilling listener’s homes nor the presence of children in the listening audience offered enough justification for the Court to allow the FCC to inhibit the free exchange of ideas. Inhibition of speech is allowed, he argued, only if it is “obscene.”

Significance

The Pacifica case established two legal precedents. First, it indirectly categorized “homosexual” speech as “low-value” speech: Speech whose worth depends on the value judgments of viewers and listeners. Second, it established that the government could restrict “low-value” speech when acting in the “public interest.”

In 1986, the FCC had warned KPFK (90.7 FM), a Pacifica Foundation station in Los Angeles, that its broadcast of excerpts from Jerker, a play about two terminally ill men coping with AIDS, on its 10:00 p.m. program “I Am Are You?” constituted indecency. The excerpts from the play included a conversation describing anal intercourse and masturbation. Although the station had warned its listeners that the program would contain material offensive to some listeners, the FCC had concluded that any future broadcasts of such material would be actionable under its indecency standard.

In the summer of 2004, the FCC fined CBS television $550,000 for its Super Bowl halftime broadcast earlier that year of singer Janet Jackson baring part of her breast in a reported “wardrobe malfunction” also involving singer Justin Timberlake. The FCC also fined Clear Channel $1.75 million for several profanity-laced statements made during Howard Stern’s radio talk show, which Clear Channel had broadcast nationwide.

These FCC actions have led many television and radio broadcasters to self-censor their GLBT-themed programming. For example, some viewers were unable to watch an October, 2004, broadcast of the public television program “In the Life” because the episode included a segment on the state of Texas’s decision to purchase high school textbooks that carry an abstinence-only sex-education message alleging that condoms do not work in disease prevention. The show’s distributors, American Public Television, warned stations to consult legal counsel if they planned to broadcast the program in prime time. Although the show’s producers argued that Texas’s book buying decision was national news, eleven public television stations chose to not air the show and so prevent potential FCC sanctions.

Bibliography

Heins, Marjorie. Not In Front of the Children: “Indecency,” Censorship, and the Innocence of Youth. New York: Hill and Wang, 2001.

Hunter, Brent Allen. “The First Amendment and Homosexual Expression: The Need for an Expanded Interpretation.” Vanderbilt Law Review 47 (May, 1993).

Spitzer, Matthew Laurence. Seven Dirty Words and Six Other Stories: Controlling the Content of Print and Broadcast. New Haven, Conn.: Yale University Press, 1987.