Posted by Sasha Volokh:
FCC v. Fox Television Stations, Part II: The FCC v. Pacifica case.
http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241584136
[1]Last time, I discussed [2]George Carlin's [3]Seven Dirty Words
routine and the FCC's 1975 opinion that the routine was "indecent,"
though not obscene, and thus prohibited under the [4]Communications
Act of 1934, which bars [5]"obscene, indecent, or profane language" on
the radio. For those of you who haven't done so yet, you may want to
take this opportunity to watch versions of the monologue [6]here or
[7]here on YouTube.
The FCC later clarified that such language was not absolutely
prohibited -- instead, under a nuisance-type theory, it was only
trying to "channel it to times of day when children most likely would
not be exposed to it," and its declaratory order about the Carlin
monologue was "issued in a specific factual context." [8]The D.C.
Circuit reversed in 1977. According to Judge Tamm, who wrote the main
opinion for the court, the FCC's prohibition was [9]censorship, which
is itself prohibited by the Act; and, "even assuming, arguendo, that
the Commission may regulate non-obscene speech, nevertheless its Order
is overbroad and vague."
Chief Judge Bazelon concurred, but decided that the ban on FCC
censorship was limited by the prohibition on "obscene, indecent, or
profane language" limited that ban, so that it was necessary to
actually reach the First Amendment argument; and, he continued, the
Commission's definition of "indecent" speech was unconstitutional.
Judge Leventhal dissented: First, it was important to protect children
from exposure to indecent language, but "even assuming that children's
exposure to pornography is as inevitable as pornography itself, there
is protection in disapproval, in the child's knowledge that the
pornography that is seen and heard is not approved by parents or
society."
And from the D.C. Circuit, the case went to the Supreme Court, which
decided [10]FCC v. Pacifica Foundation in 1978. (See [11]here for the
full text of the decision.)
([12]click here to show the rest of the post)
[13]Justice Stevens wrote the majority opinion, in which he was joined
by [14]Chief Justice Burger, [15]Justice Rehnquist (later Chief
Justice), [16]Justice Blackmun, and [17]Justice Powell. Stevens
helpfully divided his opinion into four parts, as follows:
[W]e 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 [18]§ 326; (3) whether
the broadcast was indecent within the meaning of [19]§ 1464; and
(4) whether the order violates the First Amendment of the United
States Constitution.
I. "As broadcast." Despite the broad language in the FCC's order, this
was just an opinion about one particular broadcast, and that, Stevens
wrote, was all the Court would review. II. Is this "censorship" within
the meaning of [20]§ 326? No. Recall, from the [21]previous post,
that the prohibition against FCC censorship and the ban on bad
language, which are now in two separate sections, were originally, in
the 1927 Radio Act, in a single section:
Nothing in this chapter shall be understood or construed to give
the licensing authority 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
licensing authority which shall interfere with the right of free
speech by means of radio communications. No person within the
jurisdiction of the United States shall utter any obscene,
indecent, or profane language by means of radio communication.
"Licensing authority" was later changed to "Commission" (i.e., the
FCC), but otherwise the language from the 1927 Radio Act largely went
into the 1934 Communications Act unchanged, and the division into two
sections didn't happen until 1948. Looking at it that way, it's clear
that the ban on indecent communication can't be censorship, or else
the original section would be nonsensical, or at least weird. (Well, I
suppose one could argue that the second sentence is just moral
exhortation to the people, so people shouldn't utter such language but
the FCC is powerless to stop them....) III. Are the "filthy words"
indecent? Recall that the FCC had defined "indecent" in its opinion:
[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.
Pacifica's argument was that really, "indecent" in the statute
actually means the same as "obscene," so as long as the Carlin
monologue isn't obscene (which everyone agreed with, since it lacked
an appeal to the "prurient interest"), it can't be indecent either.
The basis for Pacifica's argument was the Court's opinion in
[22]Hamling v. United States, where the phrase "obscene, lewd,
lascivious, indecent, filthy or vile" in [23]18 U.S.C. � 1461 was
interpreted to just mean "obscene." No dice, Justice Stevens says;
"[t]he reasons supporting Hamling's construction of § 1461 do not
apply to § 1464." Thus, the Court agreed with the FCC's conclusion
that the Carlin monologue was, in fact, indecent. IV. The First
Amendment. O.K., now the part you've all been waiting for, where,
having decided that the Carlin monologue was in fact prohibited by the
statute, the Court decides whether that prohibition comports with the
First Amendment. Pacifica's arguments were (1) an overbreadth argument
-- the FCC's interpretation of the statute was so broad that, even if
the Carlin monologue itself was unprotected, the FCC's interpretation
should be struck down because it covers too much protected speech --
and (2) the argument that broadcast of non-obscene language is
protected. Here, Stevens says three things:
A. (Not joined by Blackmun or Powell, so Stevens is writing for
three:) The overbreadth argument fails because we're only decided
whether this particular broadcast could be prohibited. Yes, this
may lead to some self-censorship, but only as regards "the
broadcasting of patently offensive references to excretory and
sexual organs and activities," which "surely lie at the periphery
of First Amendment concern." B. (Also not joined by Blackmun or
Powell, so again not part of the majority opinion:) Yes, this as
speech, and yes, the FCC's prohibition was content-based; but
there's no absolute rule against content-based restrictions. For
instance, the government can prohibit incitement, regulate
commercial speech more stringently, punish libels of private
citizens more severely than libels of public officials, prohibit
obscenity, etc. In the case of the Carlin monologue, the words
"offend for the same reasons that obscenity offends." They have an
extremely low place "in the hierarchy of First Amendment values."
So we need to examine the context. C. (O.K., back to writing for a
majority:) "[E]ach medium of expression presents special First
Amendment problems," and broadcasting gets the most limited
protection. Here, Justice Stevens stressed some of the same
concerns highlighted by the FCC in its order. "First, the broadcast
media have established a uniquely pervasive presence in the lives
of all Americans," not just in public but also in the home, where
privacy rights are paramount and where prior warnings can't
adequately protect you. "Second, broadcasting is uniquely
accessible to children." While [24]Cohen's "Fuck the Draft" jacket
"might have been incomprehensible to a first grader," the Carlin
monologue "could have enlarged a child's vocabulary in an instant."
Justice Stevens closed by emphasizing the narrowness of the holding
and repeating the analogy of indecency regulation with traditional
regulation of nuisances.
There's a lot we could quarrel with in Part IV, but as I said in the
previous post, [25]that's not important right now. Now consider
Justices Powell and Blackmun, who didn't join Parts IV-A and IV-B. In
Powell's concurrence (joined by Blackmun), Powell repeats many of the
same considerations that Stevens already covered. Why didn't he join
those two sections? Because he did "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." Rather than
engage in this "value" calculus, he preferred to simply analyze
whether the broadcast media had unique characteristics that, in light
of society's interest in protecting children, justified stronger
regulation. Which is what Part IV-C was all about. Justice Stewart
dissented, arguing that, based on Hamling v. United States, "indecent"
should cover only obscene speech. Justices Brennan and Marshall
dissented, agreeing with Stewart but also taking issue with the
majority's First Amendment analysis. It's a good opinion, but because
we're interested in FCC v. Pacifica insofar as it helps us understand
last week's FCC v. Fox Television Stations opinion, I'll skip it. But
as they say on the blogs, [26]read the whole thing.
So what's the bottom line? The FCC adopted a interpretation of the
Communications Act under which broadcasts like the Carlin monologue
could be prohibited. The Supreme Court said this was a permissible
interpretation of the Act, and it was not prohibited by the First
Amendment. Next time, we'll jump forward a quarter century and see how
the FCC changed its policy in 2004 to go after "fleeting expletives."
([27]click here to hide most of the post)
References
1. http://volokh.com/archives/archive_2009_04_26-2009_05_02.shtml#1241125819
2. http://en.wikipedia.org/wiki/George_Carlin
3. http://en.wikipedia.org/wiki/Seven_dirty_words
4. http://en.wikipedia.org/wiki/Communications_Act_of_1934
5. http://www.law.cornell.edu/uscode/18/1464.html
6. http://www.youtube.com/watch?v=3_Nrp7cj_tM
7. http://www.youtube.com/watch?v=TwelMWLBPik
8. http://cases.justia.com/us-court-of-appeals/F2/556/9/69042/
9. http://www.law.cornell.edu/uscode/47/326.html
10.
http://en.wikipedia.org/wiki/Federal_Communications_Commission_v._Pacifica_Foundation
11.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=438&page=726
12. file://localhost/var/www/powerblogs/volokh/posts/1241584136.html
13. http://en.wikipedia.org/wiki/John_Paul_Stevens
14. http://en.wikipedia.org/wiki/Warren_E._Burger
15. http://en.wikipedia.org/wiki/William_Rehnquist
16. http://en.wikipedia.org/wiki/Harry_Blackmun
17. http://en.wikipedia.org/wiki/Lewis_F._Powell,_Jr.
18. http://www.law.cornell.edu/uscode/47/326.html
19. http://www.law.cornell.edu/uscode/18/1464.html
20. http://www.law.cornell.edu/uscode/47/326.html
21. http://volokh.com/archives/archive_2009_04_26-2009_05_02.shtml#1241125819
22.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=volpage&court=us&vol=418&page=114
23. http://www.law.cornell.edu/uscode/18/1461.html
24. http://en.wikipedia.org/wiki/Cohen_v._California
25. http://www.imdb.com/title/tt0080339/quotes
26.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=438&page=726
27. file://localhost/var/www/powerblogs/volokh/posts/1241584136.html
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