FCC v. Pacifica Foundation: George Carlin's subtle taunting gets to the Supremes & we learn the meaning of Community Standards

Given the circumstances in Minnesota - with Al Franken's writings back in the day - I have thought a lot lately about the classic Supreme Court First Amendment cases. The rules here are unique, and these days many spots in the world are moving closer towards regulating political speech.


georgecarlinmugshot copy.jpg

In 1972 George Carlin got arrested for some quality words:

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Pacifica Radio put on the routine from the Occupation: Foole album...

Occupation: Foole - Wikipedia

Wikipedia adds: Federal Communications Commission v. Pacifica Foundation

The U.S. Supreme Court upheld the FCC action in 1978, by a vote of 5 to 4, ruling that the routine was "indecent but not obscene". The Court accepted as compelling the government's interests in 1) shielding children from patently offensive material, and 2) ensuring that unwanted speech does not enter one's home. The Court stated that the FCC had the authority to prohibit such broadcasts during hours when children were likely to be among the audience, and gave the FCC broad leeway to determine what constituted indecency in different contexts.

Here we go: the full text from of course, the Electronic Frontier Foundation: (thanks for all the nice work, EFF)

http://w2.eff.org/legal/cases/FCC_v_Pacifica/fcc_v_pacifica.decision

FCC V. PACIFICA FOUNDATION

FCC v. PACIFICA FOUNDATION

438 U.S. 726 (1978)

Decided July 3, 1978

1. Syllabus

2. Majority opinion

3. Concurring opinion

4. Dissenting opinion

5. Dissenting opinion

A radio station of respondent Pacifica Foundation (hereinafter

respondent) made an afternoon broadcast of a satiric monologue,

entitled "Filthy Words," which listed and repeated a variety of

colloquial uses of "words you couldn't say on the public airwaves." A

father who heard the broadcast while driving with his young son

complained to the Federal Communications Commission (FCC), which,

after forwarding the complaint for comment to and receiving a response

from respondent, issued a declaratory order granting the complaint.

While not imposing formal sanctions, the FCC stated that the order

would be "associated with the station's license file, and in the event

subsequent complaints are received, the Commission will then decide

whether it should utilize any of the available sanctions it has been

granted by Congress." In its memorandum opinion, the FCC stated that

it intended to "clarify the standards which will be utilized in

considering" the growing number of complaints about indecent radio

broadcasts, and it advanced several reasons for treating that type of

speech differently from other forms of expression. The FCC found a

power to regulate indecent broadcasting, inter alia, in 18 U.S.C. 1464

(1976 ed.), which forbids the use of "any obscene, indecent, or

profane language by means of radio communications." The FCC

characterized the language of the monologue as "patently offensive,"

though not necessarily obscene, and expressed the opinion that it

should be regulated by principles analogous to the law of nuisance

where the "law generally speaks to channeling behavior rather than

actually prohibiting it." The FCC found that certain words in the

monologue depicted sexual and excretory activities in a particularly

offensive manner, noted that they were broadcast in the early

afternoon "when children are undoubtedly in the audience," and

concluded that the language as broadcast was indecent and prohibited

by 1464. A three-judge panel of the Court of Appeals reversed, one

judge concluding that the FCC's action was invalid either on the

ground that the order constituted censorship, which was expressly

forbidden by 326 of the Communications Act of 1934, or on the ground

that the FCC's opinion was the functional equivalent of a rule, and as

such was "overbroad." Another judge, who felt that 326's censorship

provision did not apply to broadcasts forbidden by 1464, concluded

that 1464, construed narrowly as it has to be, covers only language

that is obscene or otherwise unprotected by the First Amendment. The

third judge, dissenting, concluded that the FCC had correctly

condemned the daytime broadcast as indecent. Respondent contends that

the broadcast was not indecent within the meaning of the statute

because of the absence of prurient appeal. Held: The judgment is

reversed. Pp. 734-741; 748-750; 761-762.

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 construedto give the

licensing authority the power of censorshipover the radio

communications or signals transmitted byany radio station, and no

regulation or condition shall bepromulgated 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.

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