Federal Communications Commission v. Pacifica Foundation 1978

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Federal Communications Commission v. Pacifica Foundation 1978

Petitioner: Federal Communications Commission (FCC)

Respondents: Pacifica Foundation, et al.

Petitioner's Claim: That the federal government can control the time for broadcasting offensive radio programs.

Chief Lawyer for Petitioner: Joseph A. Marino

Chief Lawyer for Respondent: Harry A. Plotkin

Justices for the Court: Harry A. Blackmun, Warren E. Burger, Lewis F. Powell, Jr., William H. Rehnquist, John Paul Stevens

Justices Dissenting: William J. Brennan, Jr., Thurgood Marshall, Potter Stewart, Byron R. White

Date of Decision: July 3, 1978

Decision: The federal government can penalize a radio station for broadcasting an indecent program when children are likely to be listening.

Significance: Pacifica defined indecent broadcast material and recognized the FCC's power to control the time of such broadcasts.

The First Amendment protects the freedom of speech in America by saying, "Congress shall make no law . . . abridging [limiting] the freedom of speech." When Americans think of free speech, they usually imagine speeches delivered in public, or books, magazines, and newspapers sold in stores and newsstands.

The freedom of speech, however, also applies to the broadcast media of television and radio. In Washington, D.C., the Federal C o m m u n i c a t i o n s Commission ("FCC") regulates these media by making rules for radio and television stations to follow. The FCC was created by Congress to ensure that radio and television stations serve a beneficial public interest.

Although the FCC regulates the broadcast media, it is not to interfere with the freedom of speech. That means it cannot stop a radio station from broadcasting a program just because the government does not like the program. After a program airs, however, the FCC can fine the radio station if the program violates one of the FCC's rules. Under a law passed by Congress, one of those rules is that radio stations may not use "obscene, indecent, or profane language." In Federal Communications Commission v. Pacifica Foundation, (1978) a radio station challenged that rule, saying it violated the freedom of speech.

Dirty words

The case began in the early 1970s, when a comedian named George Carlin had a twelve minute act called "Dirty Words." One night he recorded the act before a live audience in California. In the act, Carlin listed seven words that he called "the curse words and the swear words, the cuss words and the words you can't say, that you're not supposed to say all the time." After listing the seven dirty words, Carlin spent the remainder of the act using them many, many times. Carlin's goal was to show that it was silly for people to be offended by words.

On October 30, 1973, a New York radio station called Pacifica Foundation broadcast "Dirty Words" at 2 o'clock in the afternoon. A few weeks later, a man who heard the broadcast while driving with his young son wrote a complaint to the FCC. The FCC sent the complaint to Pacifica, which explained that it did not mean to offend anyone with the broadcast. Instead, it had aired "Dirty Words" during a program that examined society's attitudes about language. Pacifica said "Carlin is not mouthing obscenities, he is merely using words to satirize how harmless and essentially silly our attitudes towards those words."

On February 21, 1975, the FCC decided Pacifica had violated the law against "indecent" broadcasts. The FCC said a broadcast is indecent when it exposes children to offensive language about sexual or excretory actions or body parts. Pacifica violated the law by airing such a program in the middle of the day, when children were likely to be listening. The FCC said it would fine Pacifica in the future if it ever violated the law again.

Pacifica appealed to the United States Court of Appeals for the Third Circuit. That court reversed and ruled in favor of Pacifica. One of the three judges on the panel said the FCC had violated Pacifica's freedom of speech. The FCC took the case to the U.S. Supreme Court.

Cleaning up the act

With a 5–4 decision, the Supreme Court reversed and ruled in favor of the FCC. Writing for the Court, Justice John Paul Stevens agreed that Carlin's act was speech under the First Amendment. He said, however, that it was "vulgar, offensive, and shocking." Justice Stevens said such language has almost no social value, so it is not entitled to full protection under the freedom of speech.

As rationale for the decision, Justice Stevens said radio and television had become so powerful in America, invading the privacy of everyone's home. Children had easy access to such programs, even without their parents' permission. That meant is was reasonable for the FCC to limit the broadcast of indecent material to times when children were not likely to be listening. This did not violate the freedom of speech because broadcasters could air such programs at other times, such as between midnight and six in the morning.

HOWARD STERN

A fter the Supreme Court's decision in Pacifica, the FCC worked hard to discourage indecent radio broadcasts. One of its targets was Howard Stern, a radio disc jockey in New York City whose morning program was broadcast in major cities throughout the country. Stern was called a "shock jock" because his programs contained shocking references to sexual intercourse, ethnic and religious groups, and other sensitive topics. Stern's program offended many people who did not want their children to listen to Stern's airwave antics.

During a Christmas show in 1988, Stern referred to a man playing a piano with his penis. The FCC called the broadcast "indecent" and fined Stern's employer, Infinity Broadcasting Corporation. Over the next seven years the FCC issued a total of $1.7 million in fines for various Stern broadcasts.

Infinity fought the fines, arguing that Stern had a constitutional right to express his opinions on the radio. On September 1, 1995, however, Infinity gave up the fight and agreed to pay the fines. Although Infinity did not admit to any wrongdoing, the FCC said the settlement was a victory for regulations against indecent broadcasts.

Dirty decision?

Four justices dissented, meaning they disagreed with the Court's decision. Justice William J. Brennan, Jr., a strong supporter of the freedom of speech, wrote a dissenting opinion. Justice Brennan said that while obscenity is not protected by the First Amendment, indecent language is. He said the Court's decision would force adults to listen to nothing but children's programming during the day. He also feared the decision would allow the FCC to ban all broadcasts that contain "four-letter words." Such a restriction, he wrote, would include plays by Shakespeare, a good deal of political speech, and even portions of the Bible.