Federal Communications Commission v. Pacifica Foundation

PETITIONER: Federal Communications Commission
RESPONDENT: Pacifica Foundation
LOCATION: WBAI Station

DOCKET NO.: 77-528
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 438 US 726 (1978)
ARGUED: Apr 18, 1978 / Apr 19, 1978
DECIDED: Jul 03, 1978

ADVOCATES:
Harry M. Plotkin - Argued the cause for respondent Pacifica Foundation
Joseph A. Marino - Argued the cause for the petitioner
Louis F. Claiborne - Argued the cause for the United States, a respondent under this Court's Rule 21 (4)

Facts of the case

During a mid-afternoon weekly broadcast, a New York radio station aired George Carlin's monologue, "Filthy Words." Carlin spoke of the words that could not be said on the public airwaves. His list included shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. The station warned listeners that the monologue included "sensitive language which might be regarded as offensive to some." The FCC received a complaint from a man who stated that he had heard the broadcast while driving with his young son.

Question

Does the First Amendment deny government any power to restrict the public broadcast of indecent language under any circumstances?

Media for Federal Communications Commission v. Pacifica Foundation

Audio Transcription for Oral Argument - April 18, 1978 in Federal Communications Commission v. Pacifica Foundation
Audio Transcription for Oral Argument - April 19, 1978 in Federal Communications Commission v. Pacifica Foundation

Audio Transcription for Opinion Announcement - July 03, 1978 in Federal Communications Commission v. Pacifica Foundation

Warren E. Burger:

The judgment and opinion of the Court in 77-528, Federal Communications Commission against Pacifica Foundation will be announced by Mr. Justice Stevens.

John Paul Stevens:

The ultimate question in this case is whether the Federal Communications Commission has any power to regulate a radio broadcast that is indecent, but not obscene.

On a Tuesday afternoon, in October of 1973, the respondent Pacifica Corporation which operates a radio station in New York City, broadcast a record of a monologue by George Carlin entitled "Filthy Words."

The broadcast was heard by a gentleman riding an automobile with his young son who wrote a letter of complaint to the Commission, complaining that contained words that were improper for public broadcast

.The Commission ultimately decided that the broadcast was indecent because it contained words that referred to excretory and sexual activities or organs and such words were indecent and the Commission let the respondent know that although no sanction would be imposed for this broadcast, that the fact that such a broadcast had been made would be noted in it's file and kept available for future reference in the event the similar broadcast were made in the future or at the question of license renewal came up.

The radio appealed to the Court of Appeals for the district of Columbia which reversed.

In three different opinions, the Court of Appeals in effect held that the regulation -- that the announcement of the Commission was improper, that it too broadly condemned in decent language.

The Commission asked for certiorari in this Court and we granted certiorari to review the case.

There are four questions that the Court decides.

The first is whether the case involves a review of the general rule or merely a determination that the particular broadcast as given in the afternoon to an audience which included large numbers of children as well as the adult audience could be regulated as indecent and the Court first holds that the focus is on the particular broadcast rather than a general rule.

Secondly, the Court considers whether the Section of the Communications Act which prohibits censorship prohibited, the Commission from reviewing the matter and the Court holds that prohibition which was enacted as part of the same statute to prohibit the use of indecent profane or obscene language is not applicable to the subsequent review of program contents such as this.

And there is no dissent within the court on that proposition.

The third question the court considers is whether the broadcast is indecent within the meaning of the statute when it does not appeal to the prurient interest and therefore is not obscene.

And on this issue the court holds by majority five to four that the broadcast was indecent within the meaning of the statute.

Justice Stewart has written a dissent in which justice Brennan, justice Marshall and justice White have joined taking the position that the statute does not prohibit the broadcast.

Then the fourth issue is whether the commission has whether the First Amendment to the United States Constitution precludes the commission from exercising any sort of censorship or regulatory power over an indecent broadcast of this kind.

On this issue the court has also divided five members the court hold that the First Amendment does not prohibit the exercise of this kind of power and therefore sustains the action of the commission in asserting its regulatory jurisdiction over this kind of broadcast.

The opinion which I have filed although joined by a majority on the first three issues is only joined by the Chief Justice and justice Rehnquist on this issue.

Mr. Justice Powell has filed a concurring opinion joined by Mr. Justice Blackmun on this issue and Mr. Justice Brennan has filed a dissenting opinion in which he notes that although they were not normally reach the constitutional issue, that he feels the court is so flagrantly wrong in this case that it should be discussed and he is joined by Mr. Justice Marshall.

Warren E. Burger:

Thank you Mr. Justice Stevens.