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.
In 1972 George Carlin got arrested for some quality words:
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.
"....
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