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F.C.C. v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073, 43 Rad. Reg. 2d (P & F) 493, 3 Media L. Rep. 2553

Facts

The case arose when a father complained to the FCC after hearing a broadcast of George Carlin's satirical monologue 'Filthy Words' on a New York radio station owned by Pacifica Foundation. The monologue, which included various colloquial uses of indecent language, was aired in the afternoon when children were likely to be listening. The FCC issued a declaratory order stating that the broadcast was indecent, although it did not impose formal sanctions at that time.

A radio station of respondent Pacifica Foundation (hereinafter respondent) made an afternoon broadcast of a satiric monologue, entitled 'Filthy Words,' which listed and repeated a variety of colloquial uses of 'words you couldn't say on the public airwaves.' A father who heard the broadcast while driving with his young son complained to the Federal Communications Commission (FCC), which, after forwarding the complaint for comment to and receiving a response from respondent, issued a declaratory order granting the complaint.

Issue

Whether the Federal Communications Commission has the authority to regulate a radio broadcast that is indecent but not obscene.

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.

Rule

The FCC has the authority to regulate indecent broadcasting under 18 U.S.C. § 1464, which prohibits the use of obscene, indecent, or profane language by means of radio communications.

The FCC found a power to regulate indecent broadcasting, inter alia, in 18 U.S.C. § 1464 (1976 ed.), which forbids the use of 'any obscene, indecent, or profane language by means of radio communications.'

Analysis

The Supreme Court analyzed the FCC's determination that the language used in the broadcast was indecent. The Court noted that the words 'obscene, indecent, or profane' are disjunctive, meaning that 'indecent' does not require prurient appeal, unlike 'obscene.' The Court emphasized that broadcasting has limited First Amendment protection due to its pervasive presence in society and its accessibility to children, thus justifying the regulation of indecent language.

The FCC characterized the language of the monologue as 'patently offensive,' though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to the law of nuisance where the 'law generally speaks to channeling behavior rather than actually prohibiting it.'

Conclusion

The Supreme Court reversed the Court of Appeals' decision, affirming the FCC's authority to regulate indecent broadcasts and holding that the order did not violate the First Amendment.

Held: The judgment is reversed.

Who won?

The Federal Communications Commission prevailed in the case because the Supreme Court upheld its authority to regulate indecent broadcasts, finding that the broadcast in question was indeed indecent under the law.

The Supreme Court, Mr. Justice Stevens, held that: (1) focus of review by Supreme Court was on Commission's determination that monologue was indecent as broadcast; (2) Commission's action was not forbidden 'censorship' within meaning of section of Communications Act of 1934; (3) Commission properly concluded that indecent language was used in broadcast of monologue, even though monologue was not obscene, and (4) Commission's order did not violate broadcaster's First Amendment rights.

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