View source for FCC v. Pacifica Foundation

{{Short description|1978 landmark US Supreme Court case}}
{{Use mdy dates|date=September 2023}}
{{Infobox SCOTUS case
| Litigants = FCC v. Pacifica Foundation
| ArgueDateA = April 18
| ArgueDateB = 19
| ArgueYear = 1978
| DecideDate = July 3
| DecideYear = 1978
| FullName = Federal Communications Commission v. Pacifica Foundation, et al.
| ParallelCitations = 98 S. Ct. 3026; 57 [[L. Ed. 2d]] 1073; 1978 [[U.S. LEXIS]] 135; 43 Rad. Reg. 2d (P & F) 493; 3 Media L. Rep. 2553
| USVol = 438
| USPage = 726
| Prior = Complaint granted, 56 F.C.C.2d 94 (1975); reversed, 556 [[F.2d]] [https://law.justia.com/cases/federal/appellate-courts/F2/556/9/69042/ 9] ([[D.C. Cir.]] 1977); [[certiorari|cert.]] granted, {{ussc|434|1008|1978|el=no}}.
| Holding = Because of the pervasive nature of broadcasting, it has less First Amendment protection than other forms of communication. The F.C.C. was justified in concluding that Carlin's "Filthy Words" broadcast, though not obscene, was indecent, and subject to restriction.
| Majority = Stevens (Parts I, II, III, and IV-C)
| JoinMajority = Burger, Blackmun, Powell, Rehnquist
| Concurrence = Stevens (Parts IV-A and IV-B)
| JoinConcurrence = Burger, Rehnquist
| Concurrence2 = Powell
| JoinConcurrence2 = Blackmun
| Dissent = Brennan
| JoinDissent = Marshall
| Dissent2 = Stewart
| JoinDissent2 = Brennan, White, Marshall
| LawsApplied = [[First Amendment to the United States Constitution|U.S. Const. amend. I]]; {{UnitedStatesCode|18|1464}}
}}

'''''Federal Communications Commission v. Pacifica Foundation''''', 438 U.S. 726 (1978), was a [[List of landmark court decisions in the United States|landmark decision]] of the [[Supreme Court of the United States|United States Supreme Court]] that upheld the ability of the [[Federal Communications Commission]] (FCC) to regulate [[United States obscenity law|indecent]] content sent over the [[Broadcasting|broadcast]] airwaves.<ref name=":0">''FCC v. Pacifica Foundation'', [https://scholar.google.com/scholar_case?case=9738309099999149495&q=438+U.S.+726&hl=en&as_sdt=6,39 438 U.S. 726] (S. Ct., 1978).</ref>

== Background ==
On the afternoon of October 30, 1973, radio station [[WBAI]] in New York City, owned by the nonprofit [[Pacifica Foundation]], aired a program about societal attitudes toward language and included the monologue "[[Seven Dirty Words|Seven Words You Can Never Say on Television]]" by comedian [[George Carlin]], from his 1972 album ''[[Class Clown]]''. The broadcast included Carlin's recitation of the words "shit", "piss", "fuck", "cunt", "cocksucker", "motherfucker", and "tits".<ref>{{cite web |url=http://law2.umkc.edu/faculty/projects/ftrials/conlaw/filthywords.html |title=George Carlin, Filthy Words |website=Exploring Constitutional Conflicts |quote=The following is a verbatim transcript of "Filthy Words" (the George Carlin monologue at issue in the Supreme Court case of FCC v. Pacifica Foundation) prepared by the Federal Communications Commission... |access-date=December 18, 2016}}</ref><ref>James Sullivan: [https://books.google.com/books?id=IWYmZd1T3HkC&q=seven+dirty+words+piss ''Seven Dirty Words: The Life and Crimes of George Carlin'']. {{ISBN|9780786745920}}. p. 4</ref>[[File:Seven Dirty Words WBAI.jpg|thumbnail|left|In reference to this case, a poster in a [[WBAI]] broadcast studio warns radio broadcasters against using the [[seven dirty words]].|244x244px]]John Douglas, an active member of [[Morality in Media]], filed a complaint with the [[Federal Communications Commission]] (FCC) claiming that he had heard the broadcast on his car radio while driving with his young son, and that the content was inappropriate for minors per the FCC's rules on [[United States obscenity law|indecency]] over the public [[Broadcasting|broadcast]] airwaves.<ref>{{cite web |url=http://www.cbs12.com/news/douglas_4708282___article.html/one_radio.html |title=Boca Man Forever Linked To George Carlin |publisher=[[WPEC]] |date=June 23, 2008 |url-status=dead |archive-url=https://web.archive.org/web/20080628153847/http://www.cbs12.com/news/douglas_4708282___article.html/one_radio.html |archive-date=2008-06-28 |access-date=2014-02-18}}</ref> Douglas also noted that the material should not have been broadcast during the daytime (it was approximately 2:00pm) when minors were more likely to be listening, per the FCC's rule requiring adult-oriented programming to only be broadcast during late-night hours.<ref name=":0" />  

The FCC forwarded Douglas's complaint to Pacifica Foundation for comment. The foundation replied that the program was intended to be educational, addressing public attitudes toward language, and that Carlin was "a significant social satirist" who "like [[Mark Twain|Twain]] and [[Mort Sahl|Sahl]] before him, examines the language of ordinary people... using words to satirize as harmless and essentially silly our attitudes towards those words." Pacifica also noted that it had received no other public complaints about the broadcast.<ref name=":0" /> 

In February 1975, the FCC issued a [[Adjudication|declaratory order]] stating that Pacifica and WBAI "could have been the subject of administrative sanctions."<ref name=":0" /> While no such sanctions were enacted, the FCC recorded the incident in the station's file for later consideration if there were customer complaints about the station in the future or if its broadcasting license was up for renewal. The order noted that regulations on indecent broadcast content had indeed been violated by WBAI.<ref>{{cite web |last=Samaha |first=Adam |url=http://www.law.uchicago.edu/files/file/314-as-story.pdf |title=The Story of FCC v. Pacifica Foundation (and Its Second Life) |access-date=2011-10-05 |url-status=dead |archive-url=https://web.archive.org/web/20110419133818/http://www.law.uchicago.edu/files/file/314-as-story.pdf |archive-date=2011-04-19 }}</ref> The order also explained that the Carlin routine was "patently offensive" and "deliberately broadcast" at a time when minors could have been listening, which were forbidden per the [[Communications Act of 1934]].<ref name=":0" />

Pacifica Foundation challenged the declaratory order, on [[First Amendment to the United States Constitution|First Amendment]] grounds, to the [[United States Court of Appeals for the District of Columbia Circuit|Circuit Court for the District of Columbia]]. In March 1977, the circuit court reversed the FCC's order against Pacifica, ruling it to be [[censorship]] of a type that was also prohibited by the Communications Act of 1934. The court also held that the order was [[Overbreadth doctrine|overbroad]] by failing to define the [[public interest]] that it was trying to serve, beyond poorly-defined protection of an unknown number of children in the audience, while confusing the definition of [[United States obscenity law|obscenity]] (unacceptable for all audiences) as opposed to content that is merely indecent (acceptable for some audiences such as consenting adults).<ref>''Pacifica Foundation v. FCC'', [https://scholar.google.com/scholar_case?case=7405613390413512970&q=556+F.+2d+9&hl=en&as_sdt=6,39 556 F. 2d 9] (D.C. Cir., 1977).</ref>

Given the apparently conflicting provisions of the 1934 Act that were raised in the circuit court ruling, the FCC appealed to the [[Supreme Court of the United States|U.S. Supreme Court]]. The high court accepted the case in 1978 and resolved to reconcile the Act's restrictions on indecent broadcasting content with its prohibition of censorship.<ref name=":0" />

== Supreme Court opinion ==
The Supreme Court primarily addressed the matter of whether government regulation of broadcasting content comports with the [[Freedom of speech|free speech]] rights of broadcast operators under the [[First Amendment to the United States Constitution|First Amendment]].<ref>{{Cite journal |last=Arnold |first=Fran Avery |last2=Cameron |first2=Cara Ebert |date=1979 |title=Broadcasters' First Amendment Rights through the Courts with the Seven Dirty Words: F.C.C. v. Pacifica Foundation |journal=Nova Law Journal |volume=3 |issue=1 |pages=271 |via=HeinOnline}}</ref> The high court ruled 5–4 in favor of the FCC, holding that the Carlin routine was "indecent but not [[obscenity|obscene]]". Therefore, the Commission could not ban such content outright, but it could restrict broadcasts to certain times of day. This was because the Commission had the authority to shield children from potentially offensive material, and to ensure that unwanted speech does not intrude on the privacy of one's home.<ref name=":0" /> 

In light of First Amendment concerns, the high court held that government regulation of broadcasting content, when in the form of a partial restriction but not a total ban, is not considered [[censorship]]. This is because of the "uniquely [[Pervasiveness doctrine|pervasive]]" nature of the broadcast airwaves, that in turn are "uniquely accessible to children". The court held that these two concerns were sufficient to "justify special treatment of indecent broadcasting," thereby allowing the FCC to sanction broadcasters for airing inappropriate content that violates the provisions of the [[Communications Act of 1934]].<ref name=":0" /> Thus, the Commission's warning to Pacifica about broadcasting the Carlin routine in the afternoon was found to be an acceptable regulatory action.<ref>{{Cite journal |last=Eichman |first=Gregor |date=Spring 1979 |title=A Pig in the Parlor: F.C.C. v. Pacifica Foundation |journal=Western State University Law Review |volume=6 |issue=2 |pages=290-292 |via=HeinOnline}}</ref>

If the Carlin routine had included obscenity, the FCC could have banned it from the broadcast airwaves outright. Since the routine was merely indecent (unacceptable for some audiences but acceptable for others), the FCC could not ban the content but could restrict it to certain times of day. This became known as the FCC's [[Safe harbor (law)|safe harbor]] rule.<ref>{{Cite journal |last=Kerrigan |first=Wade |date=October 1993 |title=FCC Regulation of the Radio Industry: A Safe Harbor for Indecent Programming |journal=Iowa Law Review |volume=79 |issue=1 |pages=150-152 |via=HeinOnline}}</ref>  

The ruling gave the FCC broad leeway to determine what constituted indecency in different contexts.<ref>{{Cite journal |last=Levi |first=Lili |date=2013 |title='Smut and Nothing But': The FCC, Indecency, and Regulatory Transformations in the Shadows |journal=Administrative Law Review |volume=65 |issue=3 |pages=523 |via=HeinOnline}}</ref> Conversely, it would be acceptable for Pacifica or any other radio station to broadcast the Carlin routine, or any similarly indecent material, outside of the daytime safe harbor hours when vulnerable audiences like children are more likely to be listening.<ref>{{Cite journal |last=Spade |first=Dana R. |date=Spring 1993 |title=Incentives and Methods for Compliance with FCC Regulations in Broadcast |journal=Preventive Law Reporter |volume=12 |issue=1 |pages=19-20 |via=HeinOnline}}</ref>

== Impact ==
The ''Pacifica'' ruling is often cited as one of the most important precedents in American [[Broadcast law|broadcasting law]] and the U.S. government's ability to regulate [[mass media]] content.<ref>{{Cite book |last=Tremblay |first=R. Wilfred |title=Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions |publisher=[[University of Alabama Press]] |year=2003 |isbn=978-0-8173-1301-2 |editor-last=Parker |editor-first=Richard A. |location=Tuscaloosa, AL |pages=218-233 |chapter=FCC v. Pacifica Foundation}}</ref> The case is also cited for clarifying the potential conflict between the government's interest in protecting audiences and a broadcaster's First Amendment rights,<ref>{{Cite journal |last=Bloom |first=Theodore Samuel |date=1979 |title=FCC v. Pacifica Foundation: An Indecent (Speech) Decision? – (George Carlin's Filthy Words) |journal=Ohio State Law |volume=40 |issue=1 |pages=159-161 |via=HeinOnline}}</ref> though the Supreme Court's interpretation is sometimes criticized for its inconsistency and inability to adapt to new media technologies or trends in popular content.<ref>{{Cite journal |last=Mustin |first=Scott H. |date=Winter 1979 |title=FCC Content Regulation of Cable Pay-Television: The Threat of Pacifica |journal=Cumberland Law Review |volume=9 |issue=3 |pages=829 |via=HeinOnline}}</ref><ref>{{Cite journal |last=Susca |first=Margot A. |last2=Proffitt |first2=Jennifer M. |date=2011 |title=Patently Offensive: What Pacifica Tells Us About Regulating Broadcast Violence |journal=Free Speech Yearbook |volume=45 |issue=1 |pages=87-91}}</ref> The case is also an important precedent for determining the differences between [[United States obscenity law|obscene]] and indecent content and appropriate regulatory reactions to them.<ref>{{Cite journal |last=Billingsley |first=Robert T. |date=Winter 1979 |title=Indecent Language: A New Class of Prohibitable Speech - FCC v. Pacifica Foundation |journal=University of Richmond Law Review |volume=13 |issue=2 |pages=311 |via=HeinOnline}}</ref>

[[George Carlin]] has been credited for his role in this turning point for the law. In 1997, Pacifica Radio host [[Larry Bensky]] prefaced an interview with Carlin by saying: "George Carlin, you're a very unusual guest for Pacifica Radio. You're probably the only person in the United States that we don't have to give The Carlin Warning to about which words you can't say on this program, because it's named after you."<ref>{{Citation |last=Bensky |first=Larry |title=Living Room : Interview With Comedian George Carlin |date=4 June 1997 |url=http://www.pacificaradioarchives.org/recording/pz031546 |access-date=18 February 2014 |publisher=Pacifica Radio Archives}}</ref><ref>{{Citation |last=Bensky |first=Larry |title=PZ0624b Radical Comedians Box Set DISC TWO |date=4 June 1997 |url=https://archive.org/details/Pz0624bRadicalComediansBoxSetDiscTwo |access-date=18 February 2014 |publisher=Pacifica Radio Archives}}</ref>

Despite its victory in ''Pacifica'', the FCC at first used its new [[Safe harbor (law)|safe harbor]] regulatory powers sparingly. In the 1990s, however, the FCC ramped up sanctions for indecent broadcasts. By the early 2000s, the Commission began to levy more sanctions with higher dollar amounts''–''with fines of up to $500,000 for some offenses.<ref>{{Cite journal |last=Butler |first=Jordan |date=Summer 2011 |title=The FCC in 2010: Seventy-Six Years of Obscenity, Indecency, and Inconsistency |journal=Capital University Law Review |volume=39 |issue=3 |pages=640-642 |via=HeinOnline}}</ref> Such actions have been inconsistent and sometimes raise accusations of [[selective enforcement]].<ref>{{Cite journal |last=Goldsamt |first=Seth T. |date=Winter 1995 |title='Crucified by the FCC'? - Howard Stern, the FCC, and Selective Prosecution |journal=Columbia Journal of Law and Social Problems |volume=28 |issue=2 |pages=220-224 |via=HeinOnline}}</ref>

== References ==
{{Reflist}}{{Portal|United States|Law|Freedom of speech}}

*

== External links ==
* {{Wikisource-inline}}
* {{caselaw source
 | case = ''FCC v. Pacifica Foundation'', {{ussc|438|726|1978|el=no}}
 | courtlistener =https://www.courtlistener.com/opinion/109939/fcc-v-pacifica-foundation/
 | googlescholar = https://scholar.google.com/scholar_case?case=9738309099999149495
 | justia =https://supreme.justia.com/cases/federal/us/438/726/
 | loc =http://cdn.loc.gov/service/ll/usrep/usrep438/usrep438726/usrep438726.pdf
 | oyez =https://www.oyez.org/cases/1977/77-528
 }}
*{{citation|title=First Amendment Library entry on FCC v. Pacifica Foundation|url=http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Federal_Communications_Commission_v_Pacifica|publisher=[[First Amendment Center]]|access-date=15 February 2015|archive-url=https://web.archive.org/web/20080701165728/http://www.firstamendmentcenter.org/faclibrary/case.aspx?case=Federal_Communications_Commission_v_Pacifica|archive-date=1 July 2008}}

{{George Carlin}}
{{PacificaRadio}}
{{US1stAmendment|press|state=expanded}}

{{DEFAULTSORT:Federal Communications Commission V. Pacifica Foundation}}
[[Category:Censorship of broadcasting in the United States]]
[[Category:United States obscenity case law]]
[[Category:Broadcast case law]]
[[Category:Federal Communications Commission litigation]]
[[Category:Pacifica Foundation]]
[[Category:United States Supreme Court cases]]
[[Category:United States Supreme Court cases of the Burger Court]]
[[Category:United States Free Speech Clause case law]]
[[Category:1978 in United States case law]]
[[Category:George Carlin]]