181 U.S. App. D.C. 132, 556 F.2d 9, reversed.
MR. JUSTICE STEVENS delivered the opinion of the Court with respect to
Parts I-III and IV-C, finding:
1. The FCC's order was an adjudication under 5 U.S.C. 554 (e) (1976
ed.), the character of which was not changed by the general statements
in the memorandum opinion; nor did the FCC's action constitute
rulemaking or the promulgation of regulations. Hence, the Court's
review must focus on the FCC's determination that the monologue was
indecent as broadcast. Pp. 734-735.
2. Section 326 does not limit the FCC's authority to sanction
licensees who engage in obscene, indecent, or profane broadcasting.
Though the censorship ban precludes editing proposed broadcasts in
advance, the ban does not deny the FCC the power to review the content
of completed broadcasts. Pp. 735-738.
3. The FCC was warranted in concluding that indecent language within
the meaning of 1464 was used in the challenged broadcast. The words
"obscene, indecent, or profane" are in the disjunctive, implying that
each has a separate meaning. Though prurient appeal is an element of
"obscene," it is not an element of "indecent," which merely refers to
noncomformance with accepted standards of morality. Contrary to
respondent's argument, this Court in Hamling v. United States, 418
U.S. 87, has not foreclosed a reading of 1464 that authorizes a
proscription of "indecent" language that is not obscene, for the
statute involved in that case, unlike 1464, focused upon the prurient,
and dealt primarily with printed matter in sealed envelopes mailed
from one individual to another, whereas 1464 deals with the content of
public broadcasts. Pp. 738-741.
4. Of all forms of communication, broadcasting has the most limited
First Amendment protection. Among the reasons for specially treating
indecent broadcasting is the uniquely pervasive presence that medium
of expression occupies in the lives of our people. Broadcasts extend
into the privacy of the home and it is impossible completely to avoid
those that are patently offensive. Broadcasting, moreover, is uniquely
accessible to children. Pp. 748-750.
MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE, and MR. JUSTICE
REHNQUIST, concluded in Parts IV-A and IV-B:
1. The FCC's authority to proscribe this particular broadcast is not
invalidated by the possibility that its construction of the statute
may deter certain hypothetically protected broadcasts containing
patently offensive references to sexual and excretory activities. Cf.
Red Lion Broadcasting Co. v. FCC, 395 U.S. 367. Pp. 742-743.
2. The First Amendment does not prohibit all governmental regulation
that depends on the content of speech. Schenck v. United States, 249
U.S. 47, 52. The content of respondent's broadcast, which was
"vulgar," "offensive," and "shocking," is not entitled to absolute
constitutional protection in all contexts; it is therefore necessary
to evaluate the FCC's action in light of the context of that
broadcast. Pp. 744-748.
MR. JUSTICE POWELL, joined by MR. JUSTICE BLACKMUN, concluded that the
FCC's holding does not violate the First Amendment, though, being of
the view that Members of this Court are not free generally to decide
on the basis of its content which speech protected by the First
Amendment is most valuable and therefore deserving of First Amendment
protection, and which is less "valuable" and hence less deserving of
protection, he is unable to join Part IV-B (or IV-A) of the opinion.
Pp. 761-762.
STEVENS, J., announced the Court's judgment and delivered an opinion
of the Court with respect to Parts I-III and IV-C, in which BURGER, C.
J., and REHNQUIST, J., joined, and in all but Parts IV-A and IV-B of
which BLACKMUN and POWELL, JJ., joined, and an opinion as to Parts
IV-A and IV-B, in which BURGER, C. J., and REHNQUIST, J., joined.
POWELL, J., filed an opinion concurring in part and concurring in the
judgment, in which BLACKMUN, J., joined, post, p. 755. BRENNAN, J.,
filed a dissenting opinion, in which MARSHALL, J., joined, post, p.
762. STEWART, J., filed a dissenting opinion, in which BRENNAN, WHITE,
and MARSHALL, JJ., joined, post, p. 777.
Joseph A. Marino argued the cause for petitioner. With him on the
briefs were Robert R. Bruce and Daniel M. Armstrong.
Harry M. Plotkin argued the cause for respondent Pacifica Foundation.
With him on the brief were David Tillotson and Harry F. Cole. Louis F.
Claiborne argued the cause for the United States, a respondent under
this Court's Rule 21 (4). With him on the brief were Solicitor General
McCree, Assistant Attorney General Civiletti, and Jerome M. Feit.[*]
*Briefs of amici curiae urging reversal were filed by Anthony H. Atlas
for Morality in Media, Inc.; and by George E. Reed and Patrick F.
Geary for the United States Catholic Conference.
Briefs of amici curiae urging affirmance were filed by J. Roger
Wollenberg, Timothy B. Dyk, James A. McKenna, Jr., Carl R. Ramey,
Erwin G. Krasnow, Floyd Abrams, J. Laurent Scharff, Corydon B. Dunham,
and Howard Monderer for the American Broadcasting Companies, Inc., et
al.; by Henry R. Kaufman, Joel M. Gora, Charles Sims, and Bruce J.
Ennis for the American Civil Liberties Union et al.; by Irwin Karp for
the Authors League of America, Inc.; by James Bouras, Barbara Scott,
and Fritz E. Attaway for the Motion Picture Association of America,
Inc.; and by Paul P. Selvin for the Writers Guild of America, West
Inc.
Charles M. Firestone filed a brief for the Committee for Open Media as
amicus curiae.
FCC V. PACIFICA FOUNDATION - MAJORITY OPINION
MR. JUSTICE STEVENS delivered the opinion of the Court (Parts I, II,
III, and IV-C) and an opinion in which THE CHIEF JUSTICE and MR.
JUSTICE REHNQUIST joined (Parts IV-A and IV-B).
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.
A satiric humorist named George Carlin recorded a 12-minute monologue
entitled "Filthy Words" before a live audience in a California
theater. He began by referring to his thoughts about "the words you
couldn't say on the public, ah, airwaves, um, the ones you definitely
wouldn't say, ever." He proceeded to list those words and repeat them
over and over again in a variety of colloquialisms. The transcript of
the recording, which is appended to this opinion, indicates frequent
laughter from the audience.
At about 2 o'clock in the afternoon on Tuesday, October 30, 1973, a
New York radio station, owned by respondent Pacifica Foundation,
broadcast the "Filthy Words" monologue. A few weeks later a man, who
stated that he had heard the broadcast while driving with his young
son, wrote a letter complaining to the Commission. He stated that,
although he could perhaps understand the "record's being sold for
private use, I certainly cannot understand the broadcast of same over
the air that, supposedly, you control."
The complaint was forwarded to the station for comment. In its
response, Pacifica explained that the monologue had been played during
a program about contemporary society's attitude toward la0nguage and
that, immediately before its broadcast, listeners had been advised
that it included ++"sensitive language which might be regarded as
offensive to some." Pacifica characterized George Carlin as "a
significant social satirist" who "like Twain and Sahl before him,
examines the language of ordinary people. . . . Carlin is not mouthing
obscenities, he is merely using words to satirize as harmless and
essentially silly our attitudes towards those words." Pacifica stated
that it was not aware of any other complaints about the broadcast.
On February 21, 1975, the Commission issued a declaratory order
granting the complaint and holding that Pacifica "could have been the
subject of administrative sanctions." 56 F. C. C. 2d 94, 99. The
Commission did not impose formal sanctions, but it did state that the
order would be "associated with the station's license file, and in the
event that subsequent complaints are received, the Commission will
then decide whether it should utilize any of the available sanctions
it has been granted by Congress."[fn1]
In its memorandum opinion the Commission stated that it intended to
"clarify the standards which will be utilized in considering" the
growing number of complaints about indecent speech on the airwaves.
Id., at 94. Advancing several reasons for treating broadcast speech
differently from other forms of expression,[fn2] the Commission found
a power to regulate indecent broadcasting in two statutes: 18 U.S.C.
1464 (1976 ed.), which forbids the use of "any obscene, indecent, or
profane language by means of radio communications,"[fn3] and 47 U.S.C.
303 (g), which requires the Commission to "encourage the larger and
more effective use of radio in the public interest."[fn4]
The Commission characterized the language used in the Carlin monologue
as "patently offensive," though not necessarily obscene, and expressed
the opinion that it should be regulated by principles analogous to
those found in the law of nuisance where the "law generally speaks to
channeling behavior more than actually prohibiting it. . . . [T]he
concept of `indecent' is intimately connected with the exposure of
children to language that describes, 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." 56
F. C. C. 2d, at 98.[fn5]
Applying these considerations to the language used in the monologue as
broadcast by respondent, 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." Id., at 99. In summary, the
Commission stated: "We therefore hold that the language as broadcast
was indecent and prohibited by 18 U.S.C. [] 1464."[fn6] Ibid.
After the order issued, the Commission was asked to clarify its
opinion by ruling that the broadcast of indecent words as part of a
live newscast would not be prohibited. The Commission issued another
opinion in which it pointed out 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." 59 F. C. C. 2d 892 (1976). The Commission
noted that its "declaratory order was issued in a specific factual
context," and declined to comment on various hypothetical situations
presented by the petition.[fn7] Id., at 893. It relied on its "long
standing policy of refusing to issue interpretive rulings or advisory
opinions when the critical facts are not explicitly stated or there is
a possibility that subsequent events will alter them." Ibid.
The United States Court of Appeals for the District of Columbia
Circuit reversed, with each of the three judges on the panel writing
separately. 181 U.S. App. D.C. 132, 556 F.2d 9. Judge Tamm concluded
that the order represented censorship and was expressly prohibited by
326 of the Communications Act.[fn8] Alternatively, Judge Tamm read the
Commission opinion as the functional equivalent of a rule and
concluded that it was "overbroad." 181 U.S. App. D.C., at 141, 556
F.2d, at 18. Chief Judge Bazelon's concurrence rested on the
Constitution. He was persuaded that 326's prohibition against
censorship is inapplicable to broadcasts forbidden by 1464. However,
he concluded that 1464 must be narrowly construed to cover only
language that is obscene or otherwise unprotected by the First
Amendment. 181 U.S. App. D.C., at 140-153, 556 F.2d, at 24-30. Judge
Leventhal, in dissent, stated that the only issue was whether the
Commission could regulate the language "as broadcast." Id., at 154,
556 F.2d, at 31. Emphasizing the interest in protecting children, not
only from exposure to indecent language, but also from exposure to the
idea that such language has official approval, id., at 160, and n. 18,
556 F.2d, at 37, and n. 18, he concluded that the Commission had
correctly condemned the daytime broadcast as indecent.
Having granted the Commission's petition for certiorari, 434 U.S.
1008, we must decide: (1) whether the scope of judicial review
encompasses more than the Commission's determination that the
monologue was indecent "as broadcast"; (2) whether the Commission's
order was a form of censorship forbidden by 326; (3) whether the
broadcast was indecent within the meaning of 1464; and (4) whether the
order violates the First Amendment of the United States Constitution.
I
The general statements in the Commission's memorandum opinion do not
change the character of its order. Its action was an adjudication
under 5 U.S.C. 554 (e) (1976 ed.); it did not purport to engage in
formal rulemaking or in the promulgation of any regulations. The order
"was issued in a specific factual context"; questions concerning
possible action in other contexts were expressly reserved for the
future. The specific holding was carefully confined to the monologue
"as broadcast."
"This Court . . . reviews judgments, not statements in opinions."
Black v. Cutter Laboratories, 351 U.S. 292, 297. That admonition has
special force when the statements raise constitutional questions, for
it is our settled practice to avoid the unnecessary decision of such
issues. Rescue Army v. Municipal Court, 331 U.S. 549, 568-569. However
appropriate it may be for an administrative agency to write broadly in
an adjudicatory proceeding, federal courts have never been empowered
to issue advisory opinions. See Herb v. Pitcairn, 324 U.S. 117, 126.
Accordingly, the focus of our review must be on the Commission's
determination that the Carlin monologue was indecent as broadcast.
II
The relevant statutory questions are whether the Commission's action
is forbidden "censorship" within the meaning of 47 U.S.C. 326 and
whether speech that concededly is not obscene may be restricted as
"indecent" under the authority of 18 U.S.C. 1464 (1976 ed.). The
questions are not unrelated, for the two statutory provisions have a
common origin. Nevertheless, we analyze them separately.
Section 29 of the Radio Act of 1927 provided:
"Nothing in this Act shall be understood or construed to give the
licensing authority the power of censorshipover the radio
communications or signals transmitted byany radio station, and no
regulation or condition shall be promulgated or fixed by the licensing
authority whichshall interfere with the right of free speech by means
ofradio communications. No person within the jurisdictionof the United
States shall utter any obscene, indecent,or profane language by means
of radio communication."44 Stat. 1172.
The prohibition against censorship unequivocally denies the Commission
any power to edit proposed broadcasts in advance and to excise
material considered inappropriate for the airwaves. The prohibition,
however, has never been construed to deny the Commission the power to
review the content of completed broadcasts in the performance of its
regulatory duties.[fn9]
During the period between the original enactment of the provision in
1927 and its re-enactment in the Communications Act of 1934, the
courts and the Federal Radio Commission held that the section deprived
the Commission of the power to subject "broadcasting matter to
scrutiny prior to its release," but they concluded that the
Commission's "undoubted right" to take note of past program content
when considering a licensee's renewal application "is not
censorship."[fn10]
Not only did the Federal Radio Commission so construe the statute
prior to 1934; its successor, the Federal Communications Commission,
has consistently interpreted the provision in the same way ever since.
See Note, Regulation of Program Content by the FCC, 77 Harv. L. Rev.
701 (1964). And, until this case, the Court of Appeals for the
District of Columbia Circuit has consistently agreed with this
construction.[fn11] Thus, for example, in his opinion in
Anti-Defamation League of B'nai B'rith v. FCC, 131 U.S. App. D.C. 146,
403 F.2d 169 (1968), cert. denied, 394 U.S. 930, Judge Wright
forcefully pointed out that the Commission is not prevented from
canceling the license of a broadcaster who persists in a course of
improper programming. He explained:
"This would not be prohibited `censorship,' . . . any more than would
the Commission's considering on a license renewal application whether
a broadcaster allowed `coarse, vulgar, suggestive, double-meaning'
programming; programs containing such material are grounds for denial
of a license renewal." 131 U.S. App. D.C., at 150-151, n. 3. 403 F.2d,
at 173-174, n. 3.See also Office of Communication of United Church of
Christ v. FCC, 123 U.S. App. D.C. 328, 359 F.2d 994 (1966).
Entirely apart from the fact that the subsequent review of program
content is not the sort of censorship at which the statute was
directed, its history makes it perfectly clear that it was not
intended to limit the Commission's power to regulate the broadcast of
obscene, indecent, or profane language. A single section of the 1927
Act is the source of both the anticensorship provision and the
Commission's authority to impose sanctions for the broadcast of
indecent or obscene language. Quite plainly, Congress intended to give
meaning to both provisions. Respect for that intent requires that the
censorship language be read as inapplicable to the prohibition on
broadcasting obscene, indecent, or profane language.
There is nothing in the legislative history to contradict this
conclusion. The provision was discussed only in generalities when it
was first enacted.[fn12] In 1934, the anticensorship provision and the
prohibition against indecent broadcasts were re-enacted in the same
section, just as in the 1927 Act. In 1948, when the Criminal Code was
revised to include provisions that had previously been located in
other Titles of the United States Code, the prohibition against
obscene, indecent, and profane broadcasts was removed from the
Communications Act and re-enacted as 1464 of Title 18. 62 Stat. 769
and 866. That rearrangement of the Code cannot reasonably be
interpreted as having been intended to change the meaning of the
anticensorship provision. H. R. Rep. No. 304, 80th Cong., 1st Sess.,
A106 (1947). Cf. Tidewater Oil Co. v. United States, 409 U.S. 151,
162.
We conclude, therefore, that 326 does not limit the Commission's
authority to impose sanctions on licensees who engage in obscene,
indecent, or profane broadcasting.
III
The only other statutory question presented by this case is whether
the afternoon broadcast of the "Filthy Words" monologue was indecent
within the meaning of 1464.[fn13] Even that question is narrowly
confined by the arguments of the parties.
The Commission identified several words that referred to excretory or
sexual activities or organs, stated that the repetitive, deliberate
use of those words in an afternoon broadcast when children are in the
audience was patently offensive, and held that the broadcast was
indecent. Pacifica takes issue with the Commission's definition of
indecency, but does not dispute the Commission's preliminary
determination that each of the components of its definition was
present. Specifically, Pacifica does not quarrel with the conclusion
that this afternoon broadcast was patently offensive. Pacifica's claim
that the broadcast was not indecent within the meaning of the statute
rests entirely on the absence of prurient appeal.
The plain language of the statute does not support Pacifica's
argument. The words "obscene, indecent, or profane" are written in the
disjunctive, implying that each has a separate meaning. Prurient
appeal is an element of the obscene, but the normal definition of
"indecent" merely refers to nonconformance with accepted standards of
morality.[fn14]
Pacifica argues, however, that this Court has construed the term
"indecent" in related statutes to mean "obscene," as that term was
defined in Miller v. California, 413 U.S. 15. Pacifica relies most
heavily on the construction this Court gave to 18 U.S.C. 1461 in
Hamling v. United States, 418 U.S. 87. See also United States v. 12
200-ft. Reels of Film, 413 U.S. 123, 130 n. 7 (18 U.S.C. 1462)
(dicta). Hamling rejected a vagueness attack on 1461, which forbids
the mailing of "obscene, lewd, lascivious, indecent, filthy or vile"
material. In holding that the statute's coverage is limited to
obscenity, the Court followed the lead of Mr. Justice Harlan in Manual
Enterprises, Inc. v. Day, 370 U.S. 478. In that case, Mr. Justice
Harlan recognized that 1461 contained a variety of words with many
shades of meaning.[fn15] Nonetheless, he thought that the phrase
"obscene, lewd, lascivious, indecent, filthy or vile," taken as a
whole, was clearly limited to the obscene, a reading well grounded in
prior judicial constructions: "[T]he statute since its inception has
always been taken as aimed at obnoxiously debasing portrayals of sex."
370 U.S., at 483. In Hamling the Court agreed with Mr. Justice Harlan
that 1461 was meant only to regulate obscenity in the mails; by
reading into it the limits set by Miller v. California, supra, the
Court adopted a construction which assured the statute's
constitutionality.
The reasons supporting Hamling's construction of 1461 do not apply to
1464. Although the history of the former revealed a primary concern
with the prurient, the Commission has long interpreted 1464 as
encompassing more than the obscene.[fn16] The former statute deals
primarily with printed matter enclosed in sealed envelopes mailed from
one individual to another; the latter deals with the content of public
broadcasts. It is unrealistic to assume that Congress intended to
impose precisely the same limitations on the dissemination of patently
offensive matter by such different means.[fn17]
Because neither our prior decisions nor the language or history of
1464 supports the conclusion that prurient appeal is an essential
component of indecent language, we reject Pacifica's construction of
the statute. When that construction is put to one side, there is no
basis for disagreeing with the Commission's conclusion that indecent
language was used in this broadcast.
IV
Pacifica makes two constitutional attacks on the Commission's order.
First, it argues that the Commission's construction of the statutory
language broadly encompasses so much constitutionally protected speech
that reversal is required even if Pacifica's broadcast of the "Filthy
Words" monologue is not itself protected by the First Amendment.
Second, Pacifica argues that inasmuch as the recording is not obscene,
the Constitution forbids any abridgment of the right to broadcast it
on the radio.
A
The first argument fails because our review is limited to the question
whether the Commission has the authority to proscribe this particular
broadcast. As the Commission itself emphasized, its order was "issued
in a specific factual context." 59 F. C. C. 2d, at 893. That approach
is appropriate for courts as well as the Commission when regulation of
indecency is at stake, for indecency is largely a function of context
it cannot be adequately judged in the abstract.
The approach is also consistent with Red Lion Broadcasting Co. v. FCC,
395 U.S. 367. In that case the Court rejected an argument that the
Commission's regulations defining the fairness doctrine were so vague
that they would inevitably abridge the broadcasters' freedom of
speech. The Court of Appeals had invalidated the regulations because
their vagueness might lead to self-censorship of controversial program
content. Radio Television News Directors Assn. v. United States, 400
F.2d 1002, 1016 (CA7 1968). This Court reversed. After noting that the
Commission had indicated, as it has in this case, that it would not
impose sanctions without warning in cases in which the applicability
of the law was unclear, the Court stated:
"We need not approve every aspect of the fairness doctrine to decide
these cases, and we will not now pass upon the constitutionality of
these regulations by envisioning the most extreme applications
conceivable, United States v. Sullivan, 332 U.S. 689, 694 (1948), but
will deal with those problems if and when they arise." 395 U.S., at
396.
It is true that the Commission's order may lead some broadcasters to
censor themselves. At most, however, the Commission's definition of
indecency will deter only the broadcasting of patently offensive
references to excretory and sexual organs and activities.[fn18] While
some of these references may be protected, they surely lie at the
periphery of First Amendment concern. Cf. Bates v. State Bar of
Arizona, 433 U.S. 350, 380-381. Young v. American Mini Theatres, Inc.,
427 U.S. 50, 61. The danger dismissed so summarily in Red Lion, in
contrast, was that broadcasters would respond to the vagueness of the
regulations by refusing to present programs dealing with important
social and political controversies. Invalidating any rule on the basis
of its hypothetical application to situations not before the Court is
"strong medicine" to be applied "sparingly and only as a last resort."
Broadrick v. Oklahoma, 413 U.S. 601, 613. We decline to administer
that medicine to preserve the vigor of patently offensive sexual and
excretory speech.
B
When the issue is narrowed to the facts of this case, the question is
whether the First Amendment denies government any power to restrict
the public broadcast of indecent language in any circumstances.[fn19]
For if the government has any such power, this was an appropriate
occasion for its exercise.
The words of the Carlin monologue are unquestionably "speech" within
the meaning of the First Amendment. It is equally clear that the
Commission's objections to the broadcast were based in part on its
content. The order must therefore fall if, as Pacifica argues, the
First Amendment prohibits all governmental regulation that depends on
the content of speech. Our past cases demonstrate, however, that no
such absolute rule is mandated by the Constitution.
The classic exposition of the proposition that both the content and
the context of speech are critical elements of First Amendment
analysis is Mr. Justice Holmes' statement for the Court in Schenck v.
United States, 249 U.S. 47, 52:
"We admit that in many places and in ordinary times the defendants in
saying all that was said in the circular would have been within their
constitutional rights. But the character of every act depends upon the
circumstances in which it is done. . . . The most stringent protection
of free speech would not protect a man in falsely shouting fire in a
theatre and causing a panic. It does not even protect a man from an
injunction against uttering words that may have all the effect of
force. . . . The question in every case is whether the words used are
used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent."
Other distinctions based on content have been approved in the years
since Schenck. The government may forbid speech calculated to provoke
a fight. See Chaplinsky v. New Hampshire, 315 U.S. 568. It may pay
heed to the "`commonsense differences' between commercial speech and
other varieties." Bates v. State Bar of Arizona, supra, at 381. It may
treat libels against private citizens more severely than libels
against public officials. See Gertz v. Robert Welch, Inc., 418 U.S.
323. Obscenity may be wholly prohibited. Miller v. California, 413
U.S. 15. And only two Terms ago we refused to hold that a "statutory
classification is unconstitutional because it is based on the content
of communication protected by the First Amendment." Young v. American
Mini Theatres, Inc., supra, at 52.
The question in this case is whether a broadcast of patently offensive
words dealing with sex and excretion may be regulated because of its
content.[fn20] Obscene materials have been denied the protection of
the First Amendment because their content is so offensive to
contemporary moral standards. Roth v. United States, 354 U.S. 476. But
the fact that society may find speech offensive is not a sufficient
reason for suppressing it. Indeed, if it is the speaker's opinion that
gives offense, that consequence is a reason for according it
constitutional protection. For it is a central tenet of the First
Amendment that the government must remain neutral in the marketplace
of ideas[fn21] If there were any reason to believe that the
Commission's characterization of the Carlin monologue as offensive
could be traced to its political content or even to the fact that it
satirized contemporary attitudes about four-letter words[fn22] First
Amendment protection might be required. But that is simply not this
case. These words offend for the same reasons that obscenity
offends.[fn23] Their place in the hierarchy of First Amendment values
was aptly sketched by Mr. Justice Murphy when he said: "[S]uch
utterances are no essential part of any exposition of ideas, and are
of such slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social interest
in order and morality." Chaplinsky v. New Hampshire, 315 U.S., at 572.
Although these words ordinarily lack literary, political, or
scientific value, they are not entirely outside the protection of the
First Amendment. Some uses of even the most offensive words are
unquestionably protected. See, e. g., Hess v. Indiana, 414 U.S. 105.
Indeed, we may assume, arguendo, that this monologue would be
protected in other contexts. Nonetheless, the constitutional
protection accorded to a communication containing such patently
offensive sexual and excretory language need not be the same in every
context.[fn24] It is a characteristic of speech such as this that both
its capacity to offend and its "social value," to use Mr. Justice
Murphy's term, vary with the circumstances. Words that are commonplace
in one setting are shocking in another. To paraphrase Mr. Justice
Harlan, one occasion's lyric is another's vulgarity. Cf. Cohen v.
California, 403 U.S. 15, 25.[fn25]
In this case it is undisputed that the content of Pacifica's broadcast
was "vulgar," "offensive," and "shocking." Because content of that
character is not entitled to absolute constitutional protection under
all circumstances, we must consider its context in order to determine
whether the Commission's action was constitutionally permissible.
C
We have long recognized that each medium of expression presents
special First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343
U.S. 495, 502-503. And of all forms of communication, it is
broadcasting that has received the most limited First Amendment
protection. Thus, although other speakers cannot be licensed except
under laws that carefully define and narrow official discretion, a
broadcaster may be deprived of his license and his forum if the
Commission decides that such an action would serve "the public
interest, convenience, and necessity."[fn26] Similarly, although the
First Amendment protects newspaper publishers from being required to
print the replies of those whom they criticize, Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241, it affords no such
protection to broadcasters; on the contrary, they must give free time
to the victims of their criticism. Red Lion Broadcasting Co. v. FCC,
395 U.S. 367.
The reasons for these distinctions are complex, but two have relevance
to the present case. First, the broadcast media have established a
uniquely pervasive presence in the lives of all Americans. Patently
offensive, indecent material presented over the airwaves confronts the
citizen, not only in public, but also in the privacy of the home,
where the individual's right to be left alone plainly outweighs the
First Amendment rights of an intruder. Rowan v. Post Office Dept., 397
U.S. 728. Because the broadcast audience is constantly tuning in and
out, prior warnings cannot completely protect the listener or viewer
from unexpected program content. To say that one may avoid further
offense by turning off the radio when he hears indecent language is
like saying that the remedy for an assault is to run away after the
first blow. One may hang up on an indecent phone call, but that option
does not give the caller a constitutional immunity or avoid a harm
that has already taken place.[fn27]
Second, broadcasting is uniquely accessible to children, even those
too young to read. Although Cohen's written message might have been
incomprehensible to a first grader, Pacifica's broadcast could have
enlarged a child's vocabulary in an instant. Other forms of offensive
expression may be withheld from the young without restricting the
expression at its source. Bookstores and motion picture theaters, for
example, may be prohibited from making indecent material available to
children. We held in Ginsberg v. New York, 390 U.S. 629, that the
government's interest in the "well-being of its youth" and in
supporting "parents' claim to authority in their own household"
justified the regulation of otherwise protected expression. Id., at
640 and 639.[fn28] The case with which children may obtain access to
broadcast material, coupled with the concerns recognized in Ginsberg,
amply justify special treatment of indecent broadcasting.
It is appropriate, in conclusion, to emphasize the narrowness of our
holding. This case does not involve a two-way radio conversation
between a cab driver and a dispatcher, or a telecast of an Elizabethan
comedy. We have not decided that an occasional expletive in either
setting would justify any sanction or, indeed, that this broadcast
would justify a criminal prosecution. The Commission's decision rested
entirely on a nuisance rationale under which context is all-important.
The concept requires consideration of a host of variables. The time of
day was emphasized by the Commission. The content of the program in
which the language is used will also affect the composition of the
audience,[fn29] and differences between radio, television, and perhaps
closed-circuit transmissions, may also be relevant. As Mr. Justice
Sutherland wrote, a "nuisance may be merely a right thing in the wrong
place, like a pig in the parlor instead of the barnyard." Euclid v.
Ambler Realty Co., 272 U.S. 365, 388. We simply hold that when 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.
The judgment of the Court of Appeals is reversed.
It is so ordered.
Click here to read other parts of FCC v. Pacifica decision
1. 56 F. C. C. 2d, at 99. The Commission noted:
"Congress has specifically empowered the FCC to (1) revoke a station's
license (2) issue a cease and desist order, or (3) impose a monetary
forfeiture for a violation of Section 1464, 47 U.S.C. [] 312 (a), 312
(b), 503 (b) (1) (E). The FCC can also (4) deny license renewal or (5)
grant a short term renewal, 47 U.S.C. [] 307, 308." Id., at 96 n. 3.
2. "Broadcasting requires special treatment because of four important
considerations: (1) children have access to radios and in many cases
are unsupervised by parents; (2) radio receivers are in the home, a
place where people's privacy interest is entitled to extra deference,
see Rowan v. Post Office Dept., 397 U.S. 728 (1970); (3) unconsenting
adults may tune in a station without any warning that offensive
language is being or will be broadcast; and (4) there is a scarcity of
spectrum space, the use of which the government must therefore license
in the public interest. Of special concern to the Commission as well
as parents is the first point regarding the use of radio by children."
Id., at 97.
3. Title 18 U.S.C. 1464 (1976 ed.) provides:
"Whoever utters any obscene, indecent, or profane language by means of
radio communication shall be fined not more than $10,000 or imprisoned
not more than two years, or both."
4. Section 303 (g) of the Communications Act of 1934, 48 Stat. 1082,
as amended, as set forth in 47 U.S.C. 303 (g), in relevant part,
provides:
"Except as otherwise provided in this chapter, the Commission from
time to time, as public convenience, interest, or necessity requires,
shall
.. . . .
"(g) . . . generally encourage the larger and more effective use of
radio in the public interest."
5. Thus, the Commission suggested, if an offensive broadcast had
literary, artistic, political, or scientific value, and were preceded
by warnings, it might not be indecent in the late evening, but would
be so during the day, when children are in the audience. 56 F. C. C.
2d, at 98.
6. Chairman Wiley concurred in the result without joining the opinion.
Commissioners Reid and Quello filed separate statements expressing the
opinion that the language was inappropriate for broadcast at any time.
Id., at 102-103. Commissioner Robinson, joined by Commissioner Hooks,
filed a concurring statement expressing the opinion: "[W]e can
regulate offensive speech to the extent it constitutes a public
nuisance. . . . The governing idea is that `indecency' is not an
inherent attribute of words themselves; it is rather a matter of
context and conduct. . . . If I were called on to do so, I would find
that Carlin's monologue, if it were broadcast at an appropriate hour
and accompanied by suitable warning, was distinguished by sufficient
literary value to avoid being `indecent' within the meaning of the
statute." Id., at 107-108, and n. 9.
7. The Commission did, however, comment:
"`[I]n some cases, public events likely to produce offensive speech
are covered live, and there is no opportunity for journalistic
editing.' Under these circumstances we believe that it would be
inequitable for us to hold a licensee responsible for indecent
language. . . . We trust that under such circumstances a licensee will
exercise judgment, responsibility, and sensitivity to the community's
needs, interests and tastes." 59 F. C. C. 2d, at 893 n. 1.
8. "Nothing in this Act shall be understood or construed to give the
Commission the power of censorship over the radio communications or
signals transmitted by any radio station, and no regulation or
condition shall be promulgated or fixed by the Commission which shall
interfere with the right of free speech by means of radio
communication." 48 Stat. 1091, 47 U.S.C. 326.
9. Zechariah Chafee, defending the Commission's authority to take into
account program service in granting licenses, interpreted the
restriction on "censorship" narrowly: "This means, I feel sure, the
sort of censorship which went on in the seventeenth century in England
the deletion of specific items and dictation as to what should go into
particular programs." 2 Z. Chafee, Government and Mass Communications
641 (1947).
10. In KFKB Broadcasting Assn. v. Federal Radio Comm'n, 60 App. D.C.
79, 47 F.2d 670 (1931), a doctor who controlled a radio station as
well as a pharmaceutical association made frequent broadcasts in which
he answered the medical questions of listeners. He often prescribed
mixtures prepared by his pharmaceutical association. The Commission
determined that renewal of the station's license would not be in the
public interest, convenience, or necessity because many of the
broadcasts served the doctor's private interests. In response to the
claim that this was censorship in violation of 29 of the 1927 Act, the
Court held:
"This contention is without merit. There has been no attempt on the
part of the commission to subject any part of appellant's broadcasting
matter to scrutiny prior to its release. In considering the question
whether the public interest, convenience, or necessity will be served
by a renewal of appellant's license, the commission has merely
exercised its undoubted right to take note of appellant's past
conduct, which is not censorship." 60 App. D.C., at 81, 47 F.2d, at
672.
In Trinity Methodist Church, South v. Federal Radio Comm'n, 61 App.
D.C. 311, 62 F.2d 850 (1932), cert. denied, 288 U.S. 599, the station
was controlled by a minister whose broadcasts contained frequent
references to "pimps" and "prostitutes" as well as bitter attacks on
the Roman Catholic Church. The Commission refused to renew the
license, citing the nature of the broadcasts. The Court of Appeals
affirmed, concluding the First Amendment concerns did not prevent the
Commission from regulating broadcasts that "offend the religious
susceptibilities of thousands . . . or offend youth and innocence by
the free use of words suggestive of sexual immorality." 61 App. D.C.,
at 314, 62 F.2d, at 853. The court recognized that the licensee had a
right to broadcast this material free of prior restraint, but "this
does not mean that the government, through agencies established by
Congress, may not refuse a renewal of license to one who has abused
it." Id., at 312, 62 F.2d, at 851.
11. See, e. g., Bay State Beacon, Inc. v. FCC, 84 U.S. App. D.C. 216,
171 F.2d 826 (1948); Idaho Microwave, Inc. v. FCC, 122 U.S. App. D.C.
253, 352 F.2d 729 (1965); National Assn. of Theatre Owners v. FCC, 136
U.S. App. D.C. 352, 420 F.2d 194 (1969), cert. denied, 397 U.S. 922.
12. See, e. g., 67 Cong. Rec. 12615 (1926) (remarks of Sen. Dill);
id., at 5480 (remarks of Rep. White); 68 Cong. Rec. 2567 (1927)
(remarks of Rep. Scott); Hearings on S. 1 and S. 1754 before the
Senate Committee on Interstate Commerce, 69th Cong., 1st Sess., 121
(1926); Hearings on H.0 R. 5589 before the House Committee on the
Merchant Marine and Fisheries, 69th Cong., 1st ++Sess., 26 and 40
(1926). See also Hearings on H. R. 8825 before the House Committee on
the Merchant Marine and Fisheries, 70th Cong., 1st Sess., passim
(1928).
13. In addition to 1464, the Commission also relied on its power to
regulate in the public interest under 47 U.S.C. 303 (g). We do not
need to consider whether 303 may have independent significance in a
case such as this. The statutes authorizing civil penalties
incorporate 1464, a criminal statute. See 47 U.S.C. 312 (a) (6), 312
(b) (2), and 503 (b) (1) (E) (1970 ed. and Supp. V). But the validity
of the civil sanctions is not linked to the validity of the criminal
penalty. The legislative history of the provisions establishes their
independence. As enacted in 1927 and 1934, the prohibition on indecent
speech was separate from the provisions imposing civil and criminal
penalties for violating the prohibition. Radio Act of 1927, 14, 29,
and 33, 44 Stat. 1168 and 1173; Communications Act of 1934, 312, 326,
and 501, 48 Stat. 1086, 1091, and 1100, 47 U.S.C. 312, 326, and 501
(1970 ed. and Supp. V). The 1927 and 1934 Acts indicated in the
strongest possible language that any invalid provision was separable
from the rest of the Act. Radio Act of 1927, 38, 44 Stat. 1174;
Communications Act of 1934, 608, 48 Stat. 1105, 47 U.S.C. 608.
Although the 1948 codification of the criminal laws and the addition
of new civil penalties changes the statutory structure, no substantive
change was apparently intended. Cf. Tidewater Oil Co. v. United
States, 409 U.S. 151, 162. Accordingly, we need not consider any
question relating to the possible application of 1464 as a criminal
statute.
14. Webster defines the term as "a: altogether unbecoming: contrary to
what the nature of things or what circumstances would dictate as right
or expected or appropriate: hardly suitable: UNSEEMLY . . . b: not
conforming to generally accepted standards of morality: . . . ."
Webster's Third New International Dictionary (1966).
15. Indeed, at one point, he used "indecency" as a shorthand term for
"patent offensiveness," 370 U.S., at 482, a usage strikingly similar
to the Commission's definition in this case. 56 F. C. C. 2d, at 98.
16. "`[W]hile a nudist magazine may be within the protection of the
First Amendment . . . the televising of nudes might well raise a
serious question of programming contrary to 18 U.S.C. 1464. . . .
Similarly, regardless of whether the "4-letter words" and sexual
description, set forth in "lady Chatterly's Lover," (when considered
in the context of the whole book) make the book obscene for
mailability purposes, the utterance of such words or the depiction of
such sexual activity on radio or TV would raise similar public
interest and section 1464 questions.'" En banc Programing Inquiry, 44
F. C. C. 2303, 2307 (1960). See also In re WUHYFM, 24 F. C. C. 2d 408,
412 (1970); In re Sonderling Broadcasting Corp., 27 R. R. 2d 285, on
reconsideration, 41 F. C. C. 2d 777 (1973), aff'd on other grounds sub
nom. Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S.
App. D.C. 166, 515 F.2d 397 (1974); In re Mile High Stations, Inc., 28
F. C. C. 795 (1960); In re Palmetto Broadcasting Co., 33 F. C. C. 250
(1962), reconsideration denied, 34 F. C. C. 101 (1963), aff'd on other
grounds sub nom. Robinson v. FCC, 118 U.S. App. D.C. 144, 334 F.2d 534
(1964), cert. denied, 379 U.S. 843.
17. This conclusion is reinforced by noting the different
constitutional limits on Congress' power to regulate the two different
subjects. Use of the postal power to regulate material that is not
fraudulent or obscene raises "grave constitutional questions."
Hannegan v. Esquire, Inc., 327 U.S. 146, 156. But it is well settled
that the First Amendment has a special meaning in the broadcasting
context. See, e. g., FCC v. National Citizens Committee for
Broadcasting, 436 U.S. 775; Red Lion Broadcasting Co. v. FCC, 395 U.S.
367; Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U.S. 94. For this reason, the presumption that Congress
never intends to exceed constitutional limits, which supported
Hamling's narrow reading of 1461, does not support a comparable
reading of 1464.
18. A requirement that indecent language be avoided will have its
primary effect on the form, rather than the content, of serious
communication. There are few, if any, thoughts that cannot be
expressed by the use of less offensive language.
19. Pacifica's position would, of course, deprive the Commission of
any power to regulate erotic telecasts unless they were obscene under
Miller v. California, 413 U.S. 15. Anything that could be sold at a
newsstand for private examination could be publicly displayed on
television.
We are assured by Pacifica that the free play of market forces will
discourage indecent programming. "Smut may," as Judge Leventhal put
it, "drive itself from the market and confound Gresham," 181 U.S. App.
D.C., at 158, 556 F.2d, at 35; the prosperity of those who traffic in
pornographic literature and films would appear to justify skepticism.
20. Although neither MR. JUSTICE POWELL nor MR. JUSTICE BRENNAN
directly confronts this question, both have answered it affirmatively,
the latter explicitly, post, at 768 n. 3, and the former implicitly by
concurring in a judgment that could not otherwise stand.
21. See, e. g., Madison School District v. Wisconsin Employment
Relations Comm'n, 429 U.S. 167, 175-176; First National Bank of Boston
v. Bellotti, 435 U.S. 765.
22. The monologue does present a point of view; it attempts to show
that the words it uses are "harmless" and that our attitudes toward
them are "essentially silly." See supra, at 730. The Commission
objects, not to this point of view, but to the way in which it is
expressed. The belief that these words are harmless does not
necessarily confer a First Amendment privilege to use them while
proselytizing, just as the conviction that obscenity is harmless does
not license one to communicate that conviction by the indiscriminate
distribution of an obscene leaflet.
23. The Commission stated: "Obnoxious, gutter language describing
these matters has the effect of debasing and brutalizing human beings
by reducing them to their mere bodily functions . . . ." 56 F. C. C.
2d, at 98. Our society has a tradition of performing certain bodily
functions in private, and of severely limiting the public exposure or
discussion of such matters. Verbal or physical acts exposing those
intimacies are offensive irrespective of any message that may
accompany the exposure.
24. With respect to other types of speech, the Court has tailored its
protection to both the abuses and the uses to which it might be put.
See, e. g., New York Times Co. v. Sullivan, 376 U.S. 254 (special
scienter rules in libel suits brought by public officials); Bates v.
State Bar of Arizona, 433 U.S. 350 (government may strictly regulate
truthfulness in commercial speech). See also Young v. American Mini
Theatres, Inc., 427 U.S. 50, 82 n. 6 (POWELL, J., concurring).
25. The importance of context is illustrated by the Cohen case. That
case arose when Paul Cohen entered a Los Angeles courthouse wearing a
jacket emblazoned with the words "Fuck the Draft." After entering the
courtroom, he took the jacket off and folded it. 403 U.S., at 19 n. 3.
So far as the evidence showed, no one in the courthouse was offended
by his jacket. Nonetheless, when he left the courtroom, Cohen was
arrested, convicted of disturbing the peace, and sentenced to 30 days
in prison.
In holding that criminal sanctions could not be imposed on Cohen for
his political statement in a public place, the Court rejected the
argument that his speech would offend unwilling viewers; it noted that
"there was no evidence that persons powerless to avoid [his] conduct
did in fact object to it." Id., at 22. In contrast, in this case the
Commission was responding to a listener's strenuous complaint, and
Pacifica does not question its determination that this afternoon
broadcast was likely to offend listeners. It should be noted that the
Commission imposed a far more moderate penalty on Pacifica than the
state court imposed on Cohen. Even the strongest civil penalty at the
Commission's command does not include criminal prosecution. See n. 1,
supra.
26. 47 U.S.C. 309 (a), 312 (a) (2); FCC v. WOKO, Inc., 329 U.S. 223,
229. Cf. Shuttlesworth v. Birmingham, 394 U.S. 147; Staub v. Baxley,
355 U.S. 313.
27. Outside the home, the balance between the offensive speaker and
the unwilling audience may sometimes tip in favor of the speaker,
requiring the offended listener to turn away. See Erznoznik v.
Jacksonville, 422 U.S. 205. As we noted in Cohen v. California:
"While this Court has recognized that government may properly act in
many situations to prohibit intrusion into the privacy of the home of
unwelcome views and ideas which cannot be totally banned from the
public dialogue . . ., we have at the same time consistently stressed
that `we are often "captives" outside the sanctuary of the home and
subject to objectionable speech.'" 403 U.S., at 21.
The problem of harassing phone calls is hardly hypothetical. Congress
has recently found it necessary to prohibit debt collectors from
"plac[ing] telephone calls without meaningful disclosure of the
caller's identity"; from "engaging any person in telephone
conversation repeatedly or continuously with intent to annoy, abuse,
or harass any person at the called number"; and from "us[ing] obscene
or profane language or language the natural consequence of which is to
abuse the hearer or reader." Consumer Credit Protection Act
Amendments, 91 Stat. 877, 15 U.S.C. 1692d (1976 ed., Supp. II).
28. The Commission's action does not by any means reduce adults to
hearing only what is fit for children. Cf. Butler v. Michigan, 352
U.S. 380, 383. Adults who feel the need may purchase tapes and records
or go to theaters and nightclubs to hear these words. In fact, the
Commission has not unequivocally closed even broadcasting to speech of
this sort; whether broadcast audiences in the late evening contain so
few children that playing this monologue would be permissible is an
issue neither the Commission nor this Court has decided.
29. Even a prime-time recitation of Geoffrey Chaucer's Miller's Tale
would not be likely to command the attention of many children who are
both old enough to understand and young enough to be adversely
affected by passages such as: "And prively he caughte hire by the
queynte." The Canterbury Tales, Chaucer's Complete Works (Cambridge
ed. 1933), p. 58, l. 3276.
APPENDIX TO OPINION OF THE COURT
The following is a verbatim transcript of "Filthy Words" prepared by
the Federal Communications Commission.
Aruba-du, ruba-tu, ruba-tu. I was thinking about the curse words and
the swear words, the cuss words and the words that you can't say, that
you're not supposed to say all the time, [']cause words or people into
words want to hear your words. Some guys like to record your words and
sell them back to you if they can, (laughter) listen in on the
telephone, write down what words you say. A guy who used to be in
Washington knew that his phone was tapped, used to answer, Fuck
Hoover, yes, go ahead. (laughter) Okay, I was thinking one night about
the words you couldn't say on the public, ah, airwaves, um, the ones
you definitely wouldn't say, ever, [']cause I heard a lady say bitch
one night on television, and it was cool like she was talking about,
you know, ah, well, the bitch is the first one to notice that in the
litter Johnie right (murmur) Right. And, uh, bastard you can say, and
hell and damn so I have to figure out which ones you couldn't and ever
and it came down to seven but the list is open to amendment, and in
fact, has been changed, uh, by now, ha, a lot of people pointed things
out to me, and I noticed some myself. The original seven words were,
shit, piss, fuck, cunt, cocksucker, mother-fucker, and tits. Those are
the ones that will curve your spine, grow hair on your hands and
(laughter) maybe, even bring us, God help us, peace without honor
(laughter) um, and a bourbon. (laughter) And now the first thing that
we noticed was that word fuck was really repeated in there because the
word motherfucker is a compound word and it's another form of the word
fuck. (laughter) You want to be a purist it doesn't really it can't be
on the list of basic words. Also, cocksucker is a compound word and
neither half of that is really dirty. The word the half sucker that's
merely suggestive (laughter) and the word cock is a half-way dirty
word, 50% dirty dirty half the time, depending on what you mean by it.
(laughter) Uh, remember when you first heard it, like in 6th grade,
you used to giggle. And the cock crowed three times, heh (laughter)
the cock three times. It's in the Bible, cock in the Bible. (laughter)
And the first time you heard about a cock-fight, remember What? Huh?
naw. It ain't that, are you stupid? man. (laughter, clapping) It's
chickens, you know, (laughter) Then you have the four letter words
from the old Anglo-Saxon fame. Uh, shit and fuck. The word shit, uh,
is an interesting kind of word in that the middle class has never
really accepted it and approved it. They use it like, crazy but it's
not really okay. It's still a rude, dirty, old kind of gushy word.
(laughter) They don't like that, but they say it, like, they say it
like, a lady now in a middle-class home, you'll hear most of the time
she says it as an expletive, you know, it's out of her mouth before
she knows. She says, Oh shit oh shit, (laughter) oh shit. If she drops
something, Oh, the shit hurt the broccoli. Shit. Thank you. (footsteps
fading away) (papers ruffling)
Read it! (from audience)
Shit! (laughter) I won the Grammy, man, for the comedy album. Isn't
that groovy? (clapping, whistling) (murmur) That's true. Thank you.
Thank you man. Yeah. (murmur) (continuous clapping) Thank you man.
Thank you. Thank you very much, man. Thank, no, (end of continuous
clapping) for that and for the Grammy, man, [']cause (laughter) that's
based on people liking it man, yeh, that's ah, that's okay man.
(laughter) Let's let that go, man. I got my Grammy. I can let my hair
hang down now, shit. (laughter) Ha! So! Now the word shit is okay for
the man. At work you can say it like crazy. Mostly figuratively, Get
that shit out of here, will ya? I don't want to see that shit anymore.
I can't cut that shit, buddy. I've had that shit up to here. I think
you're full of shit myself. (laughter) He don't know shit from
Shinola. (laughter) you know that? (laughter) Always wondered how the
Shinola people felt about that (laughter) Hi, I'm the new man from
Shinola. (laughter) Hi, how are ya? Nice to see ya. (laughter) How are
ya? (laughter) Boy, I don't know whether to shit or wind my watch.
(laughter) Guess, I'll shit on my watch. (laughter) Oh, the shit is
going to hit de fan. (laughter) Built like a brick shit-house.
(laughter) Up, he's up shit's creek. (laughter) He's had it.
(laughter) He hit me, I'm sorry. (laughter) Hot shit, holy shit, tough
shit, eat shit, (laughter) shit-eating grin. Uh, whoever thought of
that was ill. (murmur laughter) He had a shit-eating grin! He had a
what? (laughter) Shit on a stick. (laughter) Shit in a handbag. I
always like that. He ain't worth shit in a handbag. (laughter) Shitty.
He acted real shitty. (laughter) You know what I mean? (laughter) I
got the money back, but a real shitty attitude. Heh, he had a
shit-fit. (laughter) Wow! Shit-fit. Whew! Glad I wasn't there.
(murmur, laughter) All the animals Bull shit, horse shit, cow shit,
rat shit, bat shit. (laughter) First time I heard bat shit, I really
came apart. A guy in Oklahoma, Boggs, said it, man. Aw! Bat shit.
(laughter) Vera reminded me of that last night, ah (murmur). Snake
shit, slicker than owl shit. (laughter) Get your shit together. Shit
or get off the pot. (laughter) I got a shit-load full of them.
(laughter) I got a shit-pot full, all right. Shit-head, shit-heel,
shit in your heart, shit for brains, (laughter) shit-face, heh
(laughter) I always try to think how that could have originated; the
first guy that said that. Somebody got drunk and fell in some shit,
you know. (laughter) Hey, I'm shit-face. (laughter) Shit-face, today.
(laughter) Anyway, enough of that shit. (laughter) The big one, the
word fuck that's the one that hangs them up the most. [']Cause in a
lot of cases that's the very act that hangs them up the most. So, it's
natural that the word would, uh, have the same effect. It's a great
word, fuck, nice word, easy word, cute word, kind of. Easy word to
say. One syllable, short u. (laughter) Fuck. (Murmur) You know, it's
easy. Starts with a nice soft sound fuh ends with a kuh. Right?
(laughter) A little something for everyone. Fuck (laughter) Good word.
Kind of a proud word, too. Who are you? I am FUCK. (laughter) FUCK OF
THE MOUNTAIN. (laughter) Tune in again next week to FUCK OF THE
MOUNTAIN. (laughter) It's an interesting word too, [']cause it's got a
double kind of a life personality dual, you know, whatever the right
phrase is. It leads a double life, the word fuck. First of all, it
means, sometimes, most of the time, fuck. What does it mean? It means
to make love. Right? We're going to make love, yeh, we're going to
fuck, yeh, we're going to fuck, yeh, we're going to make love.
(laughter) we're really going to fuck, yeh, we're going to make love.
Right? And it also means the beginning of life, it's the act that
begins life, so there's the word hanging around with words like love,
and life, and yet on the other hand, it's also a word that we really
use to hurt each other with, man. It's a heavy. It's one that you have
toward the end of the argument. (laughter) Right? (laughter) You
finally can't make out. Oh, fuck you man. I said, fuck you. (laughter,
murmur) Stupid fuck. (laughter) Fuck you and everybody that looks like
you. (laughter) man. It would be nice to change the movies that we
already have and substitute the word fuck for the word kill, wherever
we could, and some of those movie cliches would change a little bit.
Madfuckers still on the loose. Stop me before I fuck again. Fuck the
ump, fuck the ump, fuck the ump, fuck the ump, fuck the ump. Easy on
the clutch Bill, you'll fuck that engine again. (laughter) The other
shit one was, I don't give a shit. Like it's worth something, you
know? (laughter) I don't give a shit. Hey, well, I don't take no shit,
(laughter) you know what I mean? You know why I don't take no shit?
(laughter) [']Cause I don't give a shit. (laughter) If I give a shit,
I would have to pack shit. (laughter) But I don't pack no shit cause I
don't give a shit. (laughter) You wouldn't shit me, would you?
(laughter) That's a joke when you're a kid with a worm looking out the
bird's ass. You wouldn't shit me, would you? (laughter) It's an
eight-year-old joke but a good one. (laughter) The additions to the
list. I found three more words that had to be put on the list of words
you could never say on television, and they were fart, turd and twat,
those three. (laughter) Fart, we talked about, it's harmless It's like
tits, it's a cutie word, no problem. Turd, you can't say but who wants
to, you know? (laughter) The subject never comes up on the panel so
I'm not worried about that one. Now the word twat is an interesting
word. Twat! Yeh, right in the twat. (laughter) Twat is an interesting
word because it's the only one I know of, the only slang word applying
to the, a part of the sexual anatomy that doesn't have another meaning
to it. Like, ah, snatch, box and pussy all have other meanings, man.
Even in a Walt Disney movie, you can say, We're going to snatch that
pussy and put him in a box and bring him on the airplane. (murmur,
laughter) Everybody loves it. The twat stands alone, man, as it
should. And two-way words. Ah, ass is okay providing you're riding
into town on a religious feast day. (laughter) You can't say, up your
ass. (laughter) You can say, stuff it! (murmur) There are certain
things you can say its weird but you can just come so close. Before I
cut, I, uh, want to, ah, thank you for listening to my words, man,
fellow, uh space travelers. Thank you man for tonight and thank you
also. (clapping whistling)
PACIFICA - CONCURRING OPINION
MR. JUSTICE POWELL, with whom MR. JUSTICE BLACKMUN joins, concurring
in part and concurring in the judgment.
I join Parts I, II, III, and IV-C of MR. JUSTICE STEVENS' opinion. The
Court today reviews only the Commission's holding that Carlin's
monologue was indecent "as broadcast" at two o'clock in the afternoon,
and not the broad sweep of the Commission's opinion. Ante, at 734-735.
In addition to being consistent with our settled practice of not
deciding constitutional issues unnecessarily, see ante, at 734;
Ashwander v. TVA, 297 U.S. 288, 345-348 (1936) (Brandeis, J.,
concurring), this narrow focus also is conducive to the orderly
development of this relatively new and difficult area of law, in the
first instance by the Commission, and then by the reviewing courts.
See 181 U.S. App. D.C. 132, 158-160, 556 F.2d 9, 35-37 (1977)
(Leventhal, J., dissenting).
I also agree with much that is said in Part IV of MR. JUSTICE STEVENS'
opinion, and with its conclusion that the Commission's holding in this
case does not violate the First Amendment. Because I do not subscribe
to all that is said in Part IV, however, I state my views separately.
I
It is conceded that the monologue at issue here is not obscene in the
constitutional sense. See 56 F. C. C. 2d 94, 98 (1975); Brief for
Petitioner 18. Nor, in this context, does its language constitute
"fighting words" within the meaning of Chaplinsky v. New Hampshire,
315 U.S. 568 (1942). Some of the words used have been held protected
by the First Amendment in other cases and contexts. E. g., Lewis v.
New Orleans, 415 U.S. 130 (1974); Hess v. Indiana, 414 U.S. 105
(1973); Papish v. University of Missouri Curators, 410 U.S. 667
(1973); Cohen v. California, 403 U.S. 15 (1971); see also Eaton v.
Tulsa, 415 U.S. 697 (1974). I do not think Carlin, consistently with
the First Amendment, could be punished for delivering the same
monologue to a live audience composed of adults who, knowing what to
expect, chose to attend his performance. See Brown v. Oklahoma, 408
U.S. 914 (1972) (POWELL, J., concurring in result). And I would assume
that an adult could not constitutionally be prohibited from purchasing
a recording or transcript of the monologue and playing or reading it
in the privacy of his own home. Cf. Stanley v. Georgia, 394 U.S. 557
(1969).
But it also is true that the language employed is, to most people,
vulgar and offensive. It was chosen specifically for this quality, and
it was repeated over and over as a sort of verbal shock treatment. The
Commission did not err in characterizing the narrow category of
language used here as "patently offensive" to most people regardless
of age.
The issue, however, is whether the Commission may impose civil
sanctions on a licensee radio station for broadcasting the monologue
at two o'clock in the afternoon. The Commission's primary concern was
to prevent the broadcast from reaching the ears of unsupervised
children who were likely to be in the audience at that hour. In
essence, the Commission sought to "channel" the monologue to hours
when the fewest unsupervised children would be exposed to it. See 56
F. C. C. 2d, at 98. In my view, this consideration provides strong
support for the Commission's holding.[fn1]
The Court has recognized society's right to "adopt more stringent
controls on communicative materials available to youths than on those
available to adults." Erznoznik v. Jacksonville, 422 U.S. 205, 212
(1975); see also, e. g., Miller v. California, 413 U.S. 15, 36 n. 17
(1973); Ginsberg v. New York, 390 U.S. 629, 636-641 (1968); Jacobellis
v. Ohio, 378 U.S. 184, 195 (1964) (opinion of BRENNAN, J.). This
recognition stems in large part from the fact that "a child . . . is
not possessed of that full capacity for individual choice which is the
presupposition of First Amendment guarantees." Ginsberg v. New York,
supra, at 649-650 (STEWART, J., concurring in result). Thus, children
may not be able to protect themselves from speech which, although
shocking to most adults, generally may be avoided by the unwilling
through the exercise of choice. At the same time, such speech may have
a deeper and more lasting negative effect on a child than on an adult.
For these reasons, society may prevent the general dissemination of
such speech to children, leaving to parents the decision as to what
speech of this kind their children shall hear and repeat:
"[C]onstitutional interpretation has consistently recognizedthat the
parents' claim to authority in their own household to direct the
rearing of their children is basicin the structure of our society. `It
is cardinal with usthat the custody, care and nurture of the child
residefirst in the parents, whose primary function and freedominclude
preparation for obligations the state can neithersupply nor hinder.'
Prince v. Massachusetts, [321 U.S. 158,166 (1944)]. The legislature
could properly conclude that parents and others, teachers for example,
who have this primary responsibility for children's well-beingare
entitled to the support of laws designed to aid dischargeof that
responsibility." Id., at 639.
The Commission properly held that the speech from which society may
attempt to shield its children is not limited to that which appeals to
the youthful prurient interest. The language involved in this case is
as potentially degrading and harmful to children as representations of
many erotic acts.
In most instances, the dissemination of this kind of speech to
children may be limited without also limiting willing adults' access
to it. Sellers of printed and recorded matter and exhibitors of motion
pictures and live performances may be required to shut their doors to
children, but such a requirement has no effect on adults' access. See
id., at 634-635. The difficulty is that such a physical separation of
the audience cannot be accomplished in the broadcast media. During
most of the broadcast hours, both adults and unsupervised children are
likely to be in the broadcast audience, and the broadcaster cannot
reach willing adults without also reaching children. This, as the
Court emphasizes, is one of the distinctions between the broadcast and
other media to which we often have adverted as justifying a different
treatment of the broadcast media for First Amendment purposes. See
Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977); Columbia
Broadcasting System, Inc. v. Democratic National Committee, 412 U.S.
94, 101 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367,
386-387 (1969); Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582
(DC 1971), aff'd sub nom. Capital Broadcasting Co. v. Acting Attorney
General, 405 U.S. 1000 (1972); see generally Joseph Burstyn, Inc. v.
Wilson, 343 U.S. 495, 502-503 (1952). In my view, the Commission was
entitled to give substantial weight to this difference in reaching its
decision in this case.
A second difference, not without relevance, is that broadcasting
unlike most other forms of communication comes directly into the home,
the one place where people ordinarily have the right not to be
assaulted by uninvited and offensive sights and sounds. Erznoznik v.
Jacksonville, supra, at 209; Cohen v. California, 403 U.S., at 21;
Rowan v. Post Office Dept., 397 U.S. 728 (1970). Although the First
Amendment may require unwilling adults to absorb the first blow of
offensive but protected speech when they are in public before they
turn away, see, e. g., Erznoznik, supra, at 210-211, but cf. Rosenfeld
v. New Jersey, 408 U.S. 901, 903-909 (1972) (POWELL, J., dissenting),
a different order of values obtains in the home. "That we are often
`captives' outside the sanctuary of the home and subject to
objectionable speech and other sound does not mean we must be captives
everywhere." Rowan v. Post Office Dept., supra, at 738. The Commission
also was entitled to give this factor appropriate weight in the
circumstances of the instant case. This is not to say, however, that
the Commission has an unrestricted license to decide what speech,
protected in other media, may be banned from the airwaves in order to
protect unwilling adults from momentary exposure to it in their
homes.[fn2] Making the sensitive judgments required in these cases is
not easy. But this responsibility has been reposed initially in the
Commission, and its judgment is entitled to respect.
It is argued that despite society's right to protect its children from
this kind of speech, and despite everyone's interest in not being
assaulted by offensive speech in the home, the Commission's holding in
this case is impermissible because it prevents willing adults from
listening to Carlin's monologue over the radio in the early afternoon
hours. It is said that this ruling will have the effect of "reduc[ing]
the adult population . . . to [hearing] only what is fit for
children." Butler v. Michigan, 352 U.S. 380,383 (1957). This argument
is not without force. The Commission certainly should consider it as
it develops standards in this area. But it is not sufficiently strong
to leave the Commission powerless to act in circumstances such as
those in this case.
The Commission's holding does not prevent willing adults from
purchasing Carlin's record, from attending his performances, or,
indeed, from reading the transcript reprinted as an appendix to the
Court's opinion. On its face, it does not prevent respondent Pacifica
Foundation from broadcasting the monologue during late evening hours
when fewer children are likely to be in the audience, nor from
broadcasting discussions of the contemporary use of language at any
time during the day. The Commission's holding, and certainly the
Court's holding today, does not speak to cases involving the isolated
use of a potentially offensive word in the course of a radio
broadcast, as distinguished from the verbal shock treatment
administered by respondent here. In short, I agree that on the facts
of this case, the Commission's order did not violate respondent's
First Amendment rights.
II
As the foregoing demonstrates, my views are generally in accord with
what is said in Part IV-C of MR. JUSTICE STEVENS' opinion. See ante,
at 748-750. I therefore join that portion of his opinion. I do not
join Part IV-B, however, because I do not subscribe to the theory that
the Justices of this Court are free generally to decide on the basis
of its content which speech protected by the First Amendment is most
"valuable" and hence deserving of the most protection, and which is
less "valuable" and hence deserving of less protection. Compare ante,
at 744-748; Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-73
(1976) (opinion of STEVENS, J.), with id., at 73 n. 1 (POWELL, J.,
concurring).[fn3] In my view, the result in this case does not turn on
whether Carlin's monologue, viewed as a whole, or the words that
constitute it, have more or less "value" than a candidate's campaign
speech. This is a judgment for each person to make, not one for the
judges to impose upon him.[fn4] The result turns instead on the unique
characteristics of the broadcast media, combined with society's right
to protect its children from speech generally agreed to be
inappropriate for their years, and with the interest of unwilling
adults in not being assaulted by such offensive speech in their homes.
Moreover, I doubt whether today's decision will prevent any adult who
wishes to receive Carlin's message in Carlin's own words from doing
so, and from making for himself a value judgment as to the merit of
the message and words. Cf. id., at 77-79 (POWELL, J., concurring).
These are the grounds upon which I join the judgment of the Court as
to Part IV.
1. See generally Judge Leventhal's thoughtful opinion in the Court of
Appeals. 181 U.S. App. D.C. 132, 155-158, 556 F.2d 9, 32-35 (1977)
(dissenting opinion).
2. It is true that the radio listener quickly may tune out speech that
is offensive to him. In addition, broadcasters may preface potentially
offensive programs with warnings. But such warnings do not help the
unsuspecting listener who tunes in at the middle of a program. In this
respect, too, broadcasting appears to differ from books and records,
which may carry warnings on their face, and from motion pictures and
live performances, which may carry warnings on their marquees.
3. The Court has, however, created a limited exception to this rule in
order to bring commercial speech within the protection of the First
Amendment. See Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456
(1978).
4. For much the same reason, I also do not join Part IV-A. I had not
thought that the application vel non of overbreadth analysis should
depend on the Court's judgment as to the value of the protected speech
that might be deterred. Cf. ante, at 743. Except in the context of
commercial speech, see Bates v. State Bar of Arizona, 433 U.S. 350,
380-381 (1977), it has not in the past. See, e. g., Lewis v. New
Orleans, 415 U.S. 130 (1974); Gooding v. Wilson, 405 U.S. 518 (1972).
As MR. JUSTICE STEVENS points out, however, ante, at 734, the
Commission's order was limited to the facts of this case; "it did not
purport to engage in formal rulemaking or in the promulgation of any
regulations." In addition, since the Commission may be expected to
proceed cautiously, as it has in the past, cf. Brief for Petitioner
42-43, and n. 31, I do not foresee an undue "chilling" effect on
broadcasters' exercise of their rights. I agree, therefore, that
respondent's overbreadth challenge is meritless.
PACIFICA - DISSENTING OPINION (1)
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting.
I agree with MR. JUSTICE STEWART that, under Hamling v. United States,
418 U.S. 87 (1974), and United States v. 12 200-ft. Reels of Film, 413
U.S. 123 (1973), the word "indecent" in 18 U.S.C. 1464 (1976 ed.) must
be construed to prohibit only obscene speech. I would, therefore,
normally refrain from expressing my views on any constitutional issues
implicated in this case. However, I find the Court's misapplication of
fundamental First Amendment principles so patent, and its attempt to
impose its notions of propriety on the whole of the American people so
misguided, that I am unable to remain silent.
I
For the second time in two years, see Young v. American Mini Theatres,
Inc., 427 U.S. 50 (1976), the Court refuses to embrace the notion,
completely antithetical to basic First Amendment values, that the
degree of protection the First Amendment affords protected speech
varies with the social value ascribed to that speech by five Members
of this Court. See opinion of MR. JUSTICE POWELL, ante, at 761-762.
Moreover, as do all parties, all Members of the Court agree that the
Carlin monologue aired by Station WBAI does not fall within one of the
categories of speech, such as "fighting words," Chaplinsky v. New
Hampshire, 315 U.S. 568 (1942), or obscenity, Roth v. United States,
354 U.S. 476 (1957), that is totally without First Amendment
protection. This conclusion, of course, is compelled by our cases
expressly holding that communications containing some of the words
found condemnable here are fully protected by the First Amendment in
other contexts. See Eaton v. Tulsa, 415 U.S. 697 (1974); Papish v.
University of Missouri Curators, 410 U.S. 667 (1973); Brown v.
Oklahoma, 408 U.S. 914 (1972); Lewis v. New Orleans, 408 U.S. 913
(1972); Rosenfeld v. New Jersey, 408 U.S. 901 (1972); Cohen v.
California, 403 U.S. 15 (1971). Yet despite the Court's refusal to
create a sliding scale of First Amendment protection calibrated to
this Court's perception of the worth of a communication's content, and
despite our unanimous agreement that the Carlin monologue is protected
speech, a majority of the Court[fn1] nevertheless finds that, on the
facts of this case, the FCC is not constitutionally barred from
imposing sanctions on Pacifica for its airing of the Carlin monologue.
This majority apparently believes that the FCC's disapproval of
Pacifica's afternoon broadcast of Carlin's "Dirty Words" recording is
a permissible time, place, and manner regulation. Kovacs v. Cooper,
336 U.S. 77 (1949). Both the opinion of my Brother STEVENS and the
opinion of my Brother POWELL rely principally on two factors in
reaching this conclusion: (1) the capacity of a radio broadcast to
intrude into the unwilling listener's home, and (2) the presence of
children in the listening audience. Dispassionate analysis, removed
from individual notions as to what is proper and what is not, starkly
reveals that these justifications, whether individually or together,
simply do not support even the professedly moderate degree of
governmental homogenization of radio communications if, indeed, such
homogenization can ever be moderate given the pre-eminent status of
the right of free speech in our constitutional scheme that the Court
today permits.
A
Without question, the privacy interests of an individual in his home
are substantial and deserving of significant protection. In finding
these interests sufficient to justify the content regulation of
protected speech, however, the Court commits two errors. First, it
misconceives the nature of the privacy interests involved where an
individual voluntarily chooses to admit radio communications into his
home. Second, it ignores the constitutionally protected interests of
both those who wish to transmit and those who desire to receive
broadcasts that many including the FCC and this Court might find
offensive.
"The ability of government, consonant with the Constitution, to shut
off discourse solely to protect others from hearing it is . . .
dependent upon a showing that substantial privacy interests are being
invaded in an essentially intolerable manner. Any broader view of this
authority would effectively empower a majority to silence dissidents
simply as a matter of personal predilections." Cohen v. California,
supra, at 21 I am in wholehearted agreement with my Brethren that an
individual's right "to be let alone" when engaged in private activity
within the confines of his own home is encompassed within the
"substantial privacy interests" to which Mr. Justice Harlan referred
in Cohen, and is entitled to the greatest solicitude. Stanley v.
Georgia, 394 U.S. 557 (1969). However, I believe that an individual's
actions in switching on and listening to communications transmitted
over the public airways and directed to the public at large do not
implicate fundamental privacy interests, even when engaged in within
the home. Instead, because the radio is undeniably a public medium,
these actions are more properly viewed as a decision to take part, if
only as a listener, in an ongoing public discourse. See Note, Filthy
Words, the FCC, and the First Amendment: Regulating Broadcast
Obscenity, 61 Va. L. Rev. 579, 618 (1975). Although an individual's
decision to allow public radio communications into his home
undoubtedly does not abrogate all of his privacy interests, the
residual privacy interests he retains vis-a-vis the communication he
voluntarily admits into his home are surely no greater than those of
the people present in the corridor of the Los Angeles courthouse in
Cohen who bore witness to the words "Fuck the Draft" emblazoned across
Cohen's jacket. Their privacy interests were held insufficient to
justify punishing Cohen for his offensive communication.
Even if an individual who voluntarily opens his home to radio
communications retains privacy interests of sufficient moment to
justify a ban on protected speech if those interests are "invaded in
an essentially intolerable manner," Cohen v. California, supra, at 21,
the very fact that those interests are threatened only by a radio
broadcast precludes any intolerable invasion of privacy; for unlike
other intrusive modes of communication, such as sound trucks, "[t]he
radio can be turned off," Lehman v. Shaker Heights, 418 U.S. 298,302
(1974) and with a minimum of effort. As Chief Judge Bazelon aptly
observed below, "having elected to receive public air waves, the
scanner who stumbles onto an offensive program is in the same position
as the unsuspecting passers-by in Cohen and Erznoznik [v.
Jacksonville, 422 U.S. 205 (1975)]; he can avert his attention by
changing channels or turning off the set." 181 U.S. App. D.C. 132,
149, 556 F.2d 9, 26 (1977). Whatever the minimal discomfort suffered
by a listener who inadvertently tunes into a program he finds
offensive during the brief interval before he can simply extend his
arm and switch stations or flick the "off" button, it is surely worth
the candle to preserve the broadcaster's right to send, and the right
of those interested to receive, a message entitled to full First
Amendment protection. To reach a contrary balance, as does the Court,
is clearly to follow MR. JUSTICE STEVENS' reliance on animal
metaphors, ante, at 750-751, "to burn the house to roast the pig."
Butler v. Michigan, 352 U.S. 380, 383 (1957).
The Court's balance, of necessity, fails to accord proper weight to
the interests of listeners who wish to hear broadcasts the FCC deems
offensive. It permits majoritarian tastes completely to preclude a
protected message from entering the homes of a receptive, unoffended
minority. No decision of this Court supports such a result. Where the
individuals constituting the offended majority may freely choose to
reject the material being offered, we have never found their privacy
interests of such moment to warrant the suppression of speech on
privacy grounds. Cf. Lehman v. Shaker Heights, supra. Rowan v. Post
Office Dept., 397 U.S. 728 (1970), relied on by the FCC and by the
opinions of my Brothers POWELL and STEVENS, confirms rather than
belies this conclusion. In Rowan, the Court upheld a statute, 39
U.S.C. 4009 (1964 ed., Supp. IV), permitting householders to require
that mail advertisers stop sending them lewd or offensive materials
and remove their names from mailing lists. Unlike the situation here,
householders who wished to receive the sender's communications were
not prevented from doing so. Equally important, the determination of
offensiveness vel non under the statute involved in Rowan was
completely within the hands of the individual householder; no
governmental evaluation of the worth of the mail's content stood
between the mailer and the householder. In contrast, the visage of the
censor is all too discernible here.
B
Most parents will undoubtedly find understandable as well as
commendable the Court's sympathy with the FCC's desire to prevent
offensive broadcasts from reaching the ears of unsupervised children.
Unfortunately, the facial appeal of this justification for radio
censorship masks its constitutional insufficiency. Although the
government unquestionably has a special interest in the well-being of
children and consequently "can adopt more stringent controls on
communicative materials available to youths than on those available to
adults," Erznoznik v. Jacksonville, 422 U.S. 205, 212 (1975); see
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 106-107 (1973) (BRENNAN,
J., dissenting), the Court has accounted for this societal interest by
adopting a "variable obscenity" standard that permits the prurient
appeal of material available to children to be assessed in terms of
the sexual interests of minors. Ginsberg v. New York, 390 U.S. 629
(1968). It is true that the obscenity standard the Ginsberg Court
adopted for such materials was based on the then-applicable obscenity
standard of Roth v. United States, 354 U.S. 476 (1957), and Memoirs v.
Massachusetts, 383 U.S. 413 (1966), and that "[w]e have not had
occasion to decide what effect Miller [v. California, 413 U.S. 15
(1973)] will have on the Ginsberg formulation." Erznoznik v.
Jacksonville, supra, at 213 n. 10. Nevertheless, we have made it
abundantly clear that "under any test of obscenity as to minors . . .
to be obscene `such expression must be, in some significant way,
erotic.'" 422 U.S., at 213 n. 10, quoting Cohen v. California, 403
U.S., at 20.
Because the Carlin monologue is obviously not an erotic appeal to the
prurient interests of children, the Court, for the first time, allows
the government to prevent minors from gaining access to materials that
are not obscene, and are therefore protected, as to them.[fn2] It thus
ignores our recent admonition that "[s]peech that is neither obscene
as to youths nor subject to some other legitimate proscription cannot
be suppressed solely to protect the young from ideas or images that a
legislative body thinks unsuitable for them." 422 U.S., at
213-214.[fn3] The Court's refusal to follow its own pronouncements is
especially lamentable since it has the anomalous subsidiary effect, at
least in the radio context at issue here, of making completely
unavailable to adults material which may not constitutionally be kept
even from children. This result violates in spades the principle of
Butler v. Michigan, supra. Butler involved a challenge to a Michigan
statute that forbade the publication, sale, or distribution of printed
material "tending to incite minors to violent or depraved or immoral
acts, manifestly tending to the corruption of the morals of youth."
352 U.S., at 381. Although Roth v. United States, supra, had not yet
been decided, it is at least arguable that the material the statute in
Butler was designed to suppress could have been co0nstitutionally
denied to children. Nevertheless, this Court found the statute
unconstitutional. Speaking for the Court, Mr. Justice Frankfurter
reasoned:
"The incidence of this enactment is to reduce the adult population of
Michigan to reading only what is fit for children. It thereby
arbitrarily curtails one of those liberties of the individual, now
enshrined in the Due Process Clause of the Fourteenth Amendment, that
history has attested as the indispensable conditions for the
maintenance and progress of a free society." 352 U.S., at 383-384.
Where, as here, the government may not prevent the exposure of minors
to the suppressed material, the principle of Butler applies a
fortiori. The opinion of my Brother POWELL acknowledges that there
lurks in today's decision a potential for "`reduc[ing] the adult
population . . . to [hearing] only what is fit for children,'" ante,
at 760, but expresses faith that the FCC will vigilantly prevent this
potential from ever becoming a reality. I am far less certain than my
Brother POWELL that such faith in the Commission is warranted, see
Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S. App.
D.C. 166, 187-190, 515 F.2d 397, 418-421 (1975) (statement of Bazelon,
C. J., as to why he voted to grant rehearing en banc); and even if I
shared it, I could not so easily shirk the responsibility assumed by
each Member of this Court jealously to guard against encroachments on
First Amendment freedoms.
In concluding that the presence of children in the listening audience
provides an adequate basis for the FCC to impose sanctions for
Pacifica's broadcast of the Carlin monologue, the opinions of my
Brother POWELL, ante, at 757-758, and my Brother STEVENS, ante, at
749-750, both stress the time-honored right of a parent to raise his
child as he sees fit a right this Court has consistently been vigilant
to protect. See Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v.
Society of Sisters, 268 U.S. 510 (1925). Yet this principle supports a
result directly contrary to that reached by the Court. Yoder and
Pierce hold that parents, not the government, have the right to make
certain decisions regarding the upbringing of their children. As
surprising as it may be to individual Members of this Court, some
parents may actually find Mr. Carlin's unabashed attitude towards the
seven "dirty words" healthy, and deem it desirable to expose their
children to the manner in which Mr. Carlin defuses the taboo
surrounding the words. Such parents may constitute a minority of the
American public, but the absence of great numbers willing to exercise
the right to raise their children in this fashion does not alter the
right's nature or its existence. Only the Court's regrettable decision
does that.[fn4]
C
As demonstrated above, neither of the factors relied on by both the
opinion of my Brother POWELL and the opinion of my Brother STEVENS the
intrusive nature of radio and the presence of children in the
listening audience can, when taken on its own terms, support the FCC's
disapproval of the Carlin monologue. These two asserted justifications
are further plagued by a common failing: the lack of principled limits
on their use as a basis for FCC censorship. No such limits come
readily to mind, and neither of the opinions constituting the Court
serve to clarify the extent to which the FCC may assert the privacy
and children-in-the-audience rationales as justification for expunging
from the airways protected communications the Commission finds
offensive. Taken to their logical extreme, these rationales would
support the cleansing of public radio of any "four-letter words"
whatsoever, regardless of their context. The rationales could justify
the banning from radio of a myriad of literary works, novels, poems,
and plays by the likes of Shakespeare, Joyce, Hemingway, Ben Johnson,
Henry Fielding, Robert Burns, and Chaucer; they could support the
suppression of a good deal of political speech, such as the Nixon
tapes; and they could even provide the basis for imposing sanctions
for the broadcast of certain portions of the Bible.[fn5]
In order to dispel the specter of the possibility of so unpalatable a
degree of censorship, and to defuse Pacifica's overbreadth challenge,
the FCC insists that it desires only the authority to reprimand a
broadcaster on facts analogous to those present in this case, which it
describes as involving "broadcasting for nearly twelve minutes a
record which repeated over and over words which depict sexual or
excretory activities and organs in a manner patently offensive by its
community's contemporary standards in the early afternoon when
children were in the audience." Brief for Petitioner 45. The opinions
of both my Brother POWELL and my Brother STEVENS take the FCC at its
word, and consequently do no more than permit the Commission to censor
the afternoon broadcast of the "sort of verbal shock treatment,"
opinion of MR. JUSTICE POWELL, ante, at 757, involved here. To insure
that the FCC's regulation of protected speech does not exceed these
bounds, my Brother POWELL is content to rely upon the judgment of the
Commission while my Brother STEVENS deems it prudent to rely on this
Court's ability accurately to assess the worth of various kinds of
speech.[fn6] For my own part, even accepting that this case is limited
to its facts,[fn7] I would place the responsibility and the right to
weed worthless and offensive communications from the public airways
where it belongs and where, until today, it resided: in a public free
to choose those communications worthy of its attention from a
marketplace unsullied by the censor's hand.
II
The absence of any hesitancy in the opinions of my Brothers POWELL and
STEVENS to approve the FCC's censorship of the Carlin monologue on the
basis of two demonstrably inadequate grounds is a function of their
perception that the decision will result in little, if any,
curtailment of communicative exchanges protected by the First
Amendment. Although the extent to which the Court stands ready to
countenance FCC censorship of protected speech is unclear from today's
decision, I find the reasoning by which my Brethren conclude that the
FCC censorship they approve will not significantly infringe on First
Amendment values both disingenuous as to reality and wrong as a matter
of law.
My Brother STEVENS, in reaching a result apologetically described as
narrow, ante, at 750, takes comfort in his observation that "[a]
requirement that indecent language be avoided will have its primary
effect on the form, rather than the content, of serious
communication," ante, at 743 n. 18, and finds solace in his conviction
that "[t]here are few, if any, thoughts that cannot be expressed by
the use of less offensive language." Ibid. The idea that the content
of a message and its potential impact on any who might receive it can
be divorced from the words that are the vehicle for its expression is
transparently fallacious. A given word may have a unique capacity to
capsule an idea, evoke an emotion, or conjure up an image. Indeed, for
those of us who place an appropriately high value on our cherished
First Amendment rights, the word "censor" is such a word. Mr. Justice
Harlan, speaking for the Court, recognized the truism that a speaker's
choice of words cannot surgically be separated from the ideas he
desires to express when he warned that "we cannot indulge the facile
assumption that one can forbid particular words without also running a
substantial risk of suppressing ideas in the process." Cohen v.
California, 403 U.S., at 26. Moreover, even if an alternative phrasing
may communicate a speaker's abstract ideas as effectively as those
words he is forbidden to use, it is doubtful that the sterilized
message will convey the emotion that is an essential part of so many
communications. This, too, was apparent to Mr. Justice Harlan and the
Court in Cohen.
"[W]e cannot overlook the fact, because it is well illustrated by the
episode involved here, that much linguistic expression serves a dual
communicative function: it conveys not only ideas capable of
relatively precise, detached explication, but otherwise inexpressible
emotions as well. In fact, words are often chosen as much for their
emotive as their cognitive force. We cannot sanction the view that the
Constitution, while solicitous of the cognitive content of individual
speech, has little or no regard for that emotive function which,
practically speaking, may often be the more important element of the
overall message sought to be communicated." Id., at 25-26.
My Brother STEVENS also finds relevant to his First Amendment analysis
the fact that "[a]dults who feel the need may purchase tapes and
records or go to theaters and nightclubs to hear [the tabooed] words."
Ante, at 750 n. 28. My Brother POWELL agrees: "The Commission's
holding does not prevent willing adults from purchasing Carlin's
record, from attending his performances, or, indeed, from reading the
transcript reprinted as an appendix to the Court's opinion." Ante, at
760. The opinions of my Brethren display both a sad insensitivity to
the fact that these alternatives involve the expenditure of money,
time, and effort that many of those wishing to hear Mr. Carlin's
message may not be able to afford, and a naive innocence of the
reality that in many cases, the medium may well be the message.
The Court apparently believes that the FCC's actions here can be
analogized to the zoning ordinances upheld in Young v. American Mini
Theatres, Inc., 427 U.S. 50 (1976). For two reasons, it is wrong.
First, the zoning ordinances found to pass constitutional muster in
Young had valid goals other than the channeling of protected speech.
Id., at 71 n. 34 (opinion of STEVENS, J.); id., at 80 (POWELL, J.,
concurring). No such goals are present here. Second, and crucial to
the opinions of my Brothers POWELL and STEVENS in Young opinions,
which, as they do in this case, supply the bare five-person majority
of the Court the ordinances did not restrict the access of
distributors or exhibitors to the market or impair the viewing
public's access to the regulated material. Id., at 62, 71 n. 35
(opinion of STEVENS, J.); id., at 77 (POWELL, J., concurring). Again,
this is not the situation here. Both those desiring to receive
Carlin's message over the radio and those wishing to send it to them
are prevented from doing so by the Commission's actions. Although, as
my Brethren point out, Carlin's message may be disseminated or
received by other means, this is of little consolation to those
broadcasters and listeners who, for a host of reasons, not least among
them financial, do not have access to, or cannot take advantage of,
these other means.
Moreover, it is doubtful that even those frustrated listeners in a
position to follow my Brother POWELL'S gratuitous advice and attend
one of Carlin's performances or purchase one of his records would
receive precisely the same message Pacifica's radio station sent its
audience. The airways are capable not only of carrying a message, but
also of transforming it. A satirist's monologue may be most potent
when delivered to a live audience; yet the choice whether this will in
fact be the manner in which the message is delivered and received is
one the First Amendment prohibits the government from making.
III
It is quite evident that I find the Court's attempt to unstitch the
warp and woof of First Amendment law in an effort to reshape its
fabric to cover the patently wrong result the Court reaches in this
case dangerous as well as lamentable. Yet there runs throughout the
opinions of my Brothers POWELL and STEVENS another vein I find equally
disturbing: a depressing inability to appreciate that in our land of
cultural pluralism, there are many who think, act, and talk
differently from the Members of this Court, and who do not share their
fragile sensibilities. It is only an acute ethnocentric myopia that
enables the Court to approve the censorship of communications solely
because of the words they contain.
"A word is not a crystal, transparent and unchanged, it is the skin of
a living thought and may vary greatly in color and content according
to the circumstances and the time in which it is used." Towne v.
Eisner, 245 U.S. 418, 425 (1918) (Holmes, J.). The words that the
Court and the Commission find so unpalatable may be the stuff of
everyday conversations in some, if not many, of the innumerable
subcultures that compose this Nation. Academic research indicates that
this is indeed the case. See B. Jackson, "Get Your Ass in the Water
and Swim Like Me" (1974); J. Dillard, Black English (1972); W. Labov,
Language in the Inner City: Studies in the Black English Vernacular
(1972). As one researcher concluded, "[w]ords generally considered
obscene like `bullshit' and `fuck' are considered neither obscene nor
derogatory in the [black] vernacular except in particular contextual
situations and when used with certain intonations." C. Bins, "Toward
an Ethnography of Contemporary African American Oral Poetry," Language
and Linguistics Working Papers No. 5, p. 82 (Georgetown Univ. Press
1972). Cf. Keefe v. Geanakos, 418 F.2d 359, 361 (CA1 1969) (finding
the use of the word "motherfucker" commonplace among young radicals
and protesters).
Today's decision will thus have its greatest impact on broadcasters
desiring to reach, and listening audiences composed of, persons who do
not share the Court's view as to which words or expressions are
acceptable and who, for a variety of reasons, including a conscious
desire to flout majoritarian conventions, express themselves using
words that may be regarded as offensive by those from different
socio-economic backgrounds.[fn8] In this context, the Court's decision
may be seen for what, in the broader perspective, it really is:
another of the dominant culture's inevitable efforts to force those
groups who do not share its mores to conform to its way of thinking,
acting, and speaking. See Moore v. East Cleveland, 431 U.S. 494,
506-511 (1977) (BRENNAN, J., concurring).
Pacifica, in response to an FC0C inquiry about its broadcast of
Carlin's satire on "`the words you couldn't say on the public
airways,'" explained that "Carlin is not mouthing obscenities, he is
merely using words to satirize as harmless
and essentially silly our attitudes towards those words." 56 F. C.
C. 2d, at 95, 96. In confirming Carlin's prescience as a social
commentator by the result it reaches today, the Court evinces an
attitude toward the "seven dirty words" that many others besides Mr.
Carlin and Pacifica might describe as "silly." Whether today's
decision will similarly prove "harmless" remains to be seen. One can
only hope that it will.
1. Where I refer without differentiation to the actions of "the
Court," my reference is to this majority, which consists of my
Brothers POWELL and STEVENS and those Members of the Court joining
their separate opinions.
2. Even if the monologue appealed to the prurient interest of minors,
it would not be obscene as to them unless, as to them, "the work,
taken as a whole, lacks serious literary, artistic, political, or
scientific value." Miller v. California, 413 U.S. 15, 24 (1973).
3. It may be that a narrowly drawn regulation prohibiting the use of
offensive language on broadcasts directed specifically at younger
children constitutes one of the "other legitimate proscription[s]"
alluded to in Erznoznik. This is so both because of the difficulties
inherent in adapting the Miller formulation to communications received
by young children, and because such children are "not possessed of
that full capacity for individual choice which is the presupposition
of the First Amendment guarantees." Ginsberg v. New York, 390 U.S.
629, 649-650 (1968) (STEWART, J., concurring). I doubt, as my Brother
STEVENS suggests, ante, at 745 n. 20, that such a limited regulation
amounts to a regulation of speech based on its content, since, by
hypothesis, the only persons at whom the regulated communication is
directed are incapable of evaluating its content. To the extent that
such a regulation is viewed as a regulation based on content, it marks
the outermost limits to which content regulation is permissible.
4. The opinions of my Brothers POWELL and STEVENS rightly refrain from
relying on the notion of "spectrum scarcity" to support their result.
As Chief Judge Bazelon noted below, "although scarcity has justified
increasing the diversity of speakers and speech, it has never been
held to justify censorship." 181 U.S. App. D.C., at 152, 556 F.2d, at
29 (emphasis in original). See Red Lion Broadcasting Co. v. FCC, 395
U.S. 367, 396 (1969).
5. See, e. g., I Samuel 25:22: "So and more also do God unto the
enemies of David, if I leave of all that pertain to him by the morning
light any that pisseth against the wall"; II Kings 18:27 and Isaiah
36:12: "[H]ath he not sent me to the men which sit on the wall, that
they may eat their own dung, and drink their own piss with you?";
Ezekiel 23:3: "And they committed whoredoms in Egypt; they committed
whoredoms in their youth; there were their breasts pressed, and there
they bruised the teats of their virginity."; Ezekiel 23:21: "Thus thou
calledst to remembrance the lewdnes of thy youth, in bruising thy
teats by the Egyptians for the paps of thy youth." The Holy Bible
(King James Version) (Oxford 1897).
6. Although ultimately dependent upon the outcome of review in this
Court, the approach taken by my Brother STEVENS would not appear to
tolerate the FCC's suppression of any speech, such as political
speech, falling within the core area of First Amendment concern. The
same, however, cannot be said of the approach taken by my Brother
POWELL, which, on its face, permits the Commission to censor even
political speech if it is sufficiently offensive to community
standards. A result more contrary to rudimentary First Amendment
principles is difficult to imagine.
7. Having insisted that it seeks to impose sanctions on radio
communications only in the limited circumstances present here, I
believe that the FCC is estopped from using either this decision or
its own orders in this case, 56 F. C. C. 2d 94 (1975) and 59 F. C. C.
2d 892 (1976), as a basis for imposing sanctions on any public radio
broadcast other than one aired during the daytime or early evening and
containing the relentless repetition, for longer than a brief
interval, of "language that describes, in terms patently offensive as
measured by contemporary community standards for the broadcast medium,
sexual or excretory activities and organs." 56 F. C. C. 2d, at 98. For
surely broadcasters are not now on notice that the Commission desires
to regulate any offensive broadcast other than the type of "verbal
shock treatment" condemned here, or even this "shock treatment" type
of offensive broadcast during the late evening.
8. Under the approach taken by my Brother POWELL, the availability of
broadcasts about groups whose members constitute such audiences might
also be affected. Both news broadcasts about activities involving
these groups and public affairs broadcasts about their concerns are
apt to contain interviews, statements, or remarks by group leaders and
members which may contain offensive language to an extent my Brother
POWELL finds unacceptable.
PACIFICA - DISSENTION OPINION (2)
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN, MR. JUSTICE WHITE,
and MR. JUSTICE MARSHALL join, dissenting.
The Court today recognizes the wise admonition that we should "avoid
the unnecessary decision of [constitutional] issues." Ante, at 734.
But it disregards one important application of this salutary principle
the need to construe an Act of Congress so as to avoid, if possible,
passing upon its constitutionality.[fn1] It is apparent that the
constitutional questions raised by the order of the Commission in this
case are substantial[fn2] Before deciding them, we should be certain
that it is necessary to do so.
The statute pursuant to which the Commission acted, 18 U.S.C. 1464
(1976 ed.),[fn3] makes it a federal offense to utter "any obscene,
indecent, or profane language by means of radio communication." The
Commission held, and the Court today agrees, that "indecent" is a
broader concept than "obscene" as the latter term was defined in
Miller v. California, 413 U.S. 15, because language can be "indecent"
although it has social, political, or artistic value and lacks
prurient appeal. 56 F. C. C. 2d 94, 97-98.[fn4] But this construction
of 1464, while perhaps plausible, is by no means compelled. To the
contrary, I think that "indecent" should properly be read as meaning
no more than "obscene." Since the Carlin monologue concededly was not
"obscene," I believe that the Commission lacked statutory authority to
ban it. Under this construction of the statute, it is unnecessary to
address the difficult and important issue of the Commission's
constitutional power to prohibit speech that would be constitutionally
protected outside the context of electronic broadcasting.
This Court has recently decided the meaning of the term "indecent" in
a closely related statutory context. In Hamling v. United States, 418
U.S. 87, the petitioner was convicted of violating 18 U.S.C. 1461,
which prohibits the mailing of "[e]very obscene, lewd, lascivious,
indecent, filthy or vile article." The Court "construe[d] the generic
terms in [ 1461] to be limited to the sort of `patently offensive
representations or descriptions of that specific "hard core" sexual
conduct given as examples in Miller v. California.'" 418 U.S., at 114,
quoting United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130
n. 7. Thus, the clear holding of Hamling is that "indecent" as used in
1461 has the same meaning as "obscene" as that term was defined in the
Miller case. See also Marks v. United States, 430 U.S. 188, 190 (18
U.S.C. 1465).
Nothing requires the conclusion that the word "indecent" has any
meaning in 1464 other than that ascribed to the same word in
1461.[fn5] Indeed, although the legislative history is largely
silent[fn6] such indications as there are support the view that 1461
and 1464 should be construed similarly. The view that "indecent" means
no more than "obscene" in 1461 and similar statutes long antedated
Hamling. See United States v. Bennett, 24 F. Cas. 1093 (No. 14,571)
(CC SDNY 1879); Dunlop v. United States, 165 U.S. 486, 500-501; Manual
Enterprises v. Day, 370 U.S. 478, 482-484, 487 (opinion of Harlan,
J.).[fn7] And although 1461 and 1464 were originally enacted
separately, they were codified together in the Criminal Code of 1948
as part of a chapter entitled "Obscenity." There is nothing in the
legislative history to suggest that Congress intended that the same
word in two closely related sections should have different meanings.
See H. R. Rep. No. 304, 80th Cong., 1st Sess., A104-A106 (1947).
I would hold, therefore, that Congress intended, by using the word
"indecent" in 1464, to prohibit nothing more than obscene speech.[fn8]
Under that reading of the statute, the Commission's order in this case
was not authorized, and on that basis I would affirm the judgment of
the Court of Appeals.
1. See, e. g., Johnson v. Robison, 415 U.S. 361, 366-367; United
States v. Thirty-seven Photographs, 402 U.S. 363, 369; Rescue Army v.
Municipal Court, 331 U.S. 549, 569; Ashwander v. TVA, 297 U.S. 288,
348 (Brandeis, J., concurring); Crowell v. Benson, 285 U.S. 22, 62.
2. The practice of construing a statute to avoid a constitutional
confrontation is followed whenever there is "`a serious doubt'" as to
the statute's constitutionality. E. g., United States v. Rumely, 345
U.S. 41, 45; Blodgett v. Holden, 275 U.S. 142, 148 (opinion of Holmes,
J.). Thus, the Court has construed a statute to avoid raising a doubt
as to its constitutionality even though the Court later in effect held
that the statute, otherwise construed, would have been
constitutionally valid. Compare General Motors Corp. v. District of
Columbia, 380 U.S. 553, with Moorman Mfg. Co. v. Bair, 437 U.S. 267.
3. The Court properly gives no weight to the Commission's passing
reference in its order to 47 U.S.C. 303 (g). Ante, at 739 n. 13. For
one thing, the order clearly rests only upon the Commission's
interpretation of the term "indecent" in 1464; the attempt by the
Commission in this Court to assert that 303 (g) was an independent
basis for its action must fail. Cf. SEC v. Chenery Corp., 318 U.S. 80,
94-95; SEC v. Sloan, 436 U.S. 103, 117-118. Moreover, the general
language of 303 (g) cannot be used to circumvent the terms of a
specific statutory mandate such as that of 1464. "[T]he Commission's
power in this respect is limited by the scope of the statute. Unless
the [language] involved here [is] illegal under [1464], the Commission
cannot employ the statute to make [it] so by agency action." FCC v.
American Broadcasting Co., 347 U.S. 284, 290.
4. The Commission did not rely on 1464's prohibition of "profane"
language, and it is thus unnecessary to consider the scope of that
term.
5. The only Federal Court of Appeals (apart from this case) to
consider the question has held that "`obscene' and `indecent' in 1464
are to be read as parts of a single proscription, applicable only if
the challenged language appeals to the prurient interest." United
States v. Simpson, 561 F.2d 53, 60 (CA7).
6. Section 1464 originated as part of 29 of the Radio Act of 1927, 44
Stat. 1172, which was re-enacted as 326 of the Communications Act of
1934, 48 Stat. 1091. Neither the committee reports nor the floor
debates contain any discussion of the meaning of "obscene, indecent or
profane language."
7. When the Federal Communications Act was amended in 1968 to prohibit
"obscene, lewd, lascivious, filthy, or indecent" telephone calls, 82
Stat. 112, 47 U.S.C. 223, the FCC itself indicated that it thought
this language covered only "obscene" telephone calls. See H. R. Rep.
No. 1109, 90th Cong., 2d Sess., 7-8 (1968).
8. This construction is further supported by the general rule of
lenity in construing criminal statutes. See Adamo Wrecking Co. v.
United States, 434 U.S. 275, 285. The Court's statement that it need
not consider the meaning 1464 would have in a criminal prosecution,
ante, at 739 n. 13, is contrary to settled precedent:
"It is true . . . that these are not criminal cases, but it is a
criminal statute that we must interpret. There cannot be one
construction for the Federal Communications Commission and another for
the Department of Justice. If we should give [1464] the broad
construction urged by the Commission, the same construction would
likewise apply in criminal cases." FCC v. American Broadcasting Co.,
supra, at 296.
Back to Rev.Jim's Homepage
This Page İMMI-MMVIX Rev.Jim