FCC v. pacifica foundation, 438 U.S. 726 (1973)


The issue at stake here was whether the FCC had authority to regulate indecent broadcasts without violating the First Amendment.

A New York radio station owned by Pacifica Foundation broadcast at 2 p.m. a monologue by George Carlin containing “words you couldn’t say on the public, ah, airwaves… the ones you definitely wouldn’t say, ever.” A listener complained to the FCC saying he and his child had heard the show while driving. The FCC issued an order which, although did not impose any sanction, stated that Pacifica could be held liable for indecent broadcast under statute 18 U.S.C. § 1464.

The Court of Appeals for the District of Columbia ruled that FCC’s order constituted censorship, and furthermore that the statute defining indecency and indecent material was overbroad. The FCC appealed to the U.S. Supreme Court which granted certiorari.

The highest Court of the land reversed the previous holding and ruled that, given the special nature of broadcast media, regulation of indecent material does not violate the First Amendment.

Looking at past cases, the rule of free speech has never been absolute. In Schenck v. United States (249 U.S. 47), Justice Holmes stated that “the character of every act depends upon the circumstances in which it is done.” Obscene material is not protected by the First Amendment. However, the indecent radio monologue could enjoy some protection depending upon context.

Broadcasters may loose their licenses, be fined, or punished otherwise if that serves the public interest. Broadcasting is easily accessible to children, and in Ginsberg v. New York (390 U.S. 629), the Court recognized that the well-being of children and authority of parents were most important.

In this case, the Court cannot rule whether indecent broadcast needs to be punished. FCC has full authority to decide either way depending upon the context of broadcast. Such "time, place, and manner" type of regulation takes into account time of the day, content of program, composition of audience, and the medium of broadcast.

Issue 1
Of all media, broadcasting has the most pervasive presence in the lives of citizens. Prior on-the-air warning about indecent content cannot effectively protect viewers or listeners, since audiences switch back and forth between channels.

Issue 2
Audience, medium, time of day, and method of transmission are relevant factors in determining whether to impose sanctions and/or restrictions. "[W]hen the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene."

Read full PACIFICA case

Read George Carlin's Filthy Words monologue



intro | indecency | obscenity | sources | author

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