FCC v. Pacifica Foundation

438 U.S. 726 (1978)

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Nature of the Case

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Facts

A New York radio station owned by the Pacifica Foundation (P) played a satire of swearing and censorship done by George Carlin. The monologue was called Filthy Words. The monologue contained several indecent, but not obscene, words. Before this was done, P warned listeners the broadcast would include sensitive language which might be regarded as sensitive. The FCC (D) claimed the power to regulate indecent words. D’s federal enabling statutes forbid any obscene, indecent, or profane radio communications. A man who listened to the show while driving his son complained to D. P responded to the complaint contending that the words were not obscene and it was merely social commentary. D issued a declaratory order admonishing P it could have been subject to administrative actions. No action was taken against P, but D put the information in P’s license file for future further action if necessary when future complaints for new transgressions may occur. P appealed, claiming that the broadcast was not obscene and that broadcasting freedom was protected under the 1st amendment. The Commission concluded that certain words depicted sexual and excretory activities in a patently offensive manner, noted that they 'were broadcast at a time when children were undoubtedly in the audience (i.e., in the early afternoon),' and that the prerecorded language, with these offensive words 'repeated over and over,' was 'deliberately broadcast.' It held that the language as broadcast was indecent and prohibited by § 1464. The Commission issued a secondary opinion, which held that it 'never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.' The United States Court of Appeals for the District of Columbia Circuit reversed on grounds of censorship, being overbroad, or that § 1464 must be narrowly construed to cover only language that is obscene or otherwise unprotected by the First Amendment.