TO: Prof.

Loretta Whonic FROM: Kimberley Hoff DATE: 6 Oct 2012 SUBJECT: FCC Content Dispute Case Summary You have asked me to brief a case concerning a dispute between the FCC and a radio or television station regarding what subject matter it may broadcast. The case I have chosen is FCC v. Pacifica Foundation1. FACTS In 1973 a Pacifica Foundation radio station broadcast a performance of George Carlins Filthy Words comedy routine, which resulted in a parent making an indecency complaint to the FCC, which the FCC upheld against the station under the authority of 18 USC 1464 (1976 ed.), ruling words used in the broadcast patently offensive and noting that the time of broadcast was in the early afternoon while children were likely to be listening. Pacifica held that the broadcast was not obscene due to the absence of prurient appeal and the Court of Appeals agreed and reversed the complaint2. ISSUE How much leeway does the FCC have under 18 USC 1464 to determine what constitutes an indecent broadcast and how far does its power extend in prohibiting such broadcasts? DISCUSSION Since its inception in 1934, the FCC has been both forbidden from engaging in censorship via editing proposed broadcasts and also charged with reviewing completed broadcasts for obscene, indecent, or profane language3. Its current authority to do so falls under 18 USC 1464. The Commission held, and the Supreme Court agreed, that the disjunct or indicated that speech did not have to have all three qualities to be actionable, and that indecent speech was a broader category than obscene speech which could include language with social, political, or artistic value and without prurient appeal4. The Court declined to apply the standard of Hamling v. United States, where indecency was interpreted as obscenity only, on the grounds that the history of the statute in that case indicated only sexually explicit material was intended to be prohibited5. When judged by the Miller standard for indecency, the Carlin broadcast was deemed indecent because of its use of words that referred to excretory or sexual organs or functions. Pacifica also argued that the FCCs complaint infringed on 1st Amendment rights to free speech but the Supreme Court held that the quashing effect of the FCCs oversight did not significantly endanger protected political speech by prohibiting profanity6. Further, the court held that the specific nature of
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438 US 726 (1978). http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=438&invol=726 181 U.S. App. D.C. 132, 556 F.2d 9 3 Communications Act of 1934, 326. 4 Miller v. California, 413 U.S. 15. 5 418 U.S. 87. 6 Red Lion Broadcasting Co. v. FCC, 395 U.S. 367; Young v. American Mini Theatres, Inc., 427 U.S. 50, 61.

broadcast media (as opposed to print media or other forms of 1st Amendment speech), being uniquely pervasive and intruding into the privacy of the home, constantly tuned in or out (making prior content warnings difficult), and uniquely accessible to children too young to read, gave the FCC a compelling public interest in regulating content children were likely to be exposed to in broadcast form7. Therefore, the Court held that the FCC correctly identified the time of day of the broadcast (at a time when children were likely to be listening, as opposed to late in the evening when the listening audience would be mostly adults) as a factor in its inappropriateness. The dissenting opinions on the Court held that the Miller standard was misapplied and that the language of 18 USC 1464 should be read as in Hamling, prohibiting only obscene speech, citing lengthy judicial precedent8. CONCLUSION Reversed, 5-4. The Supreme Court held that the FCC had broad authority to punish broadcasters for indecent content, even when it did not rise to the level of obscenity and based on external criteria such as time of broadcast, stemming from the governments compelling interest in limiting childrens exposure to adult content via broadcast media.

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Ginsberg v. New York, 390 U.S. 629. United States v. Bennett, 24 F. Cas. 1093 (No. 14,571) (CC SDNY 1879); Dunlop v. United States, 165 U.S. 486, 500501; Manual Enterprises v. Day, 370 U.S. 478, 482-484, 487 (opinion of Harlan, J.).