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
Page 438 U. S. 727
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.
438 U. S.
734-741;
438 U. S.
748-750;
438 U. S.
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.
438 U. S.
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.
438 U. S.
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 conconformance 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.
438 U. S.
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
Page 438 U. S. 728
those that are patently offensive. Broadcasting, moreover, is
uniquely accessible to children. Pp.
438 U. S.
747-750.
MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST, concluded in Part 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.
438 U. S.
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,
249 U. S. 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 content of
that broadcast. Pp.
438 U. S.
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.
438 U. S.
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.
438 U. S. 755.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
438 U. S. 762.
STEWART, J., filed a dissenting opinion, in which BRENNAN, WHITE,
and MARSHALL, JJ., joined,
post, p.
438 U. S.
777.
Page 438 U. S. 729
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,
438
U.S. 726app|> 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
Page 438 U. S. 730
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. I n its
response, Pacifica explained that the monologue had been played
during a program about contemporary society's attitude toward
language, 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. [
Footnote 1] "
Page 438 U. S. 731
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, [
Footnote 2] 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," [
Footnote 3]
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." [
Footnote 4]
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
Page 438 U. S. 732
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. [
Footnote
5]
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. [
Footnote 6]"
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
Page 438 U. S. 733
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. [
Footnote 7]
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. [
Footnote 8] 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
Page 438 U. S. 734
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,
351 U. S. 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,
331 U. S. 568
569. However appropriate
Page 438 U. S. 735
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,
324 U. S. 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 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."
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. [
Footnote 9]
Page 438 U. S. 736
During the period between the original enactment of the
provision in 1927 and its reenactment 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." [
Footnote 10]
Page 438 U. S. 737
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. [
Footnote 11] 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
Page 438 U. S. 738
the anti-censorship 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. [
Footnote
12] In 1934, the anti-censorship provision and the prohibition
against indecent broadcasts were reenacted 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 reenacted 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
anti-censorship provision. H.R.Rep. No. 304, 80th Cong., 1st Sess.,
A106 (1947).
Cf. Tidewater Oil Co. v. United States,
409 U. S. 151,
409 U. S.
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"
Page 438 U. S. 739
monologue was indecent within the meaning of § 1464.
[
Footnote 13] 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
Page 438 U. S. 740
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. [
Footnote 14]
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,
413 U. S. 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. [
Footnote 15] 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
370 U. S. 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.
Page 438 U. S. 741
The reasons supporting
Hamling's construction of §
1461 do not apply to § 1464. Although the history of the
former revealed primary concern with the prurient, the Commission
has long interpreted § 1464 as encompassing more than the
obscene. [
Footnote 16] 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. [
Footnote
17]
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.
Page 438 U. S. 742
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
Page 438 U. S. 743
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,
332 U. S.
694 (1948), but will deal with those problems if and
when they arise."
395 U.S. at
395 U. S.
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. [
Footnote 18] 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,
433 U. S.
380-381.
Young v. American Mini Theatres, Inc.,
427 U. S. 50,
427 U. S. 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,
413 U. S. 613.
We decline to administer that medicine to preserve the vigor of
patently offensive sexual and excretory speech.
Page 438 U. S. 744
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. [
Footnote 19]
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,
249 U. S.
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
Page 438 U. S. 745
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 "
common sense differences' between
commercial speech and other varieties." Bates v. State Bar of
Arizona, supra at 433 U. S. 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
427 U. S.
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. [
Footnote 20] 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
Page 438 U. S. 746
ideas. [
Footnote 21] 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 [
Footnote 22] -- First Amendment
protection might be required. But that is simply not this case.
These words offend for the same reasons that obscenity offends.
[
Footnote 23] 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."
Chaplinski v. New Hampshire, 315 U.S. at
315 U. S.
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,
Page 438 U. S. 747
the constitutional protection accorded to a communication
containing such patently offensive sexual and excretory language
need not be the same in every context. [
Footnote 24] 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,
403 U. S. 25.
[
Footnote 25]
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
Page 438 U. S. 748
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,
343 U. S.
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." [
Footnote 26] 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.
72. 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
Page 438 U. S. 749
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. [
Footnote 27]
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 "wellbeing of its youth" and
in supporting "parents' claim to authority in their own household"
justified the regulation of otherwise protected expression.
Page 438 U. S. 750
Id. at
390 U. S. 640
and
390 U. S. 639.
[
Footnote 28] The ease 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, [
Footnote 29] 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,
272 U. S. 383.
We simply hold that, when the Commission finds that a pig has
entered the parlor, the exercise
Page 438 U. S. 751
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.
|
438
U.S. 726app|
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, motherfucker, 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
Page 438 U. S. 752
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,
Page 438 U. S. 753
will ya? I don't want to see that shit anymore. I can't colt
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-1oad 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) Shitface,
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
Page 438 U. S. 754
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 kh. 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)
Page 438 U. S. 755
[']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)
[
Footnote 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.
[
Footnote 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.
[
Footnote 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."
[
Footnote 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."
[
Footnote 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.
[
Footnote 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.
[
Footnote 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.
[
Footnote 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.
[
Footnote 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).
[
Footnote 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 that 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.
[
Footnote 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.
[
Footnote 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.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).
[
Footnote 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,
409 U. S. 162.
Accordingly, we need not consider any question relating to the
possible application of § 1464 as a criminal statute.
[
Footnote 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).
[
Footnote 15]
Indeed, at one point, he used "indecency" as a shorthand term
for "patent offensiveness," 370 U.S. at
370 U. S. 482,
a usage strikingly similar to the Commission's definition in this
case. 56 F.C.C.2d at 98.
[
Footnote 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.'"
Enbanc Programming Inquiry, 44 F.C.C. 2303, 2307
(1960).
See also In re WUHY-FM, 24 F.C.C.2d 408, 412
(1970);
In re Sonderlin 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.
[
Footnote 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,
327 U. S. 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.
[
Footnote 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.
[
Footnote 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.
[
Footnote 20]
Although neither MR. JUSTICE POWELL nor MR. JUSTICE BRENNAN
directly confronts this question, both have answered it
affirmatively, the latter explicitly,
post at
438 U. S. 768
n. 3, and the former implicitly by concurring in a judgment that
could not otherwise stand.
[
Footnote 21]
See, e.g., Madison School District v. Wisconsin Employment
Relations Comm'n, 429 U. S. 167,
429 U. S.
175-176;
First National Bank of Boston v.
Bellotti, 435 U. S. 765.
[
Footnote 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
438 U. S. 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.
[
Footnote 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.
[
Footnote 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,
427 U. S. 82 n.
6 (POWELL, J., concurring).
[
Footnote 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
403 U. S. 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
403 U. S. 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.
[
Footnote 26]
47 U.S.C. §§ 309(a), 312(a)(2);
FCC v. WOKO,
Inc., 329 U. S. 223,
329 U. S. 229.
Cf. Shuttlesworth v. Birmingham, 394 U.
S. 147;
Staub v. Baxley, 355 U.
S. 313.
[
Footnote 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
403 U. S. 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).
[
Footnote 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,
352 U. S. 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.
[
Footnote 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.
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"
Page 438 U. S. 756
at two o'clock in the afternoon, and not the broad sweep of the
Commission's opinion.
Ante at
438 U. S.
734-735. In addition to being consistent with our
settled practice of not deciding constitutional issues
unnecessarily,
see ante at
438 U. S. 734;
Ashwander v. TVA, 297 U. S. 288,
297 U. S.
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
438 U.
S. 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
Page 438 U. S. 757
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. [
Footnote 2/1]
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,
422 U. S. 212
(1975);
see also, e.g., Miller v. California, 413 U. S.
15,
413 U. S. 36 n.
17 (1973);
Ginsberg v. New York, 390 U.
S. 629,
390 U. S.
636-641 (1968);
Jacobellis v. Ohio,
378 U. S. 184,
378 U. S. 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
390 U. S.
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
Page 438 U. S. 758
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 recognized
that the parents' claim to authority in their own household to
direct the rearing of their children is basic in the structure of
our society."
"It is cardinal with us that the custody, care and nurture of
the child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can neither
supply nor hinder."
"
Prince v. Massachusetts,
[
321 U.S.
158,
321 U. S. 166 (1944)]. The
legislature could properly conclude that parents and others,
teachers for example, who have this primary responsibility for
children's wellbeing are entitled to the support of laws designed
to aid discharge of that responsibility."
Id. at
390 U. S. 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
390 U. S.
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
Page 438 U. S. 759
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,
433 U. S. 384
(1977);
Columbia Broadcasting System, Inc. v. Democratic
National Committee, 412 U. S. 94,
412 U. S. 101
(1973);
Red Lion Broadcasting Co. v. FCC, 395 U.
S. 367,
395 U. S.
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,
343 U. S.
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
422 U. S. 209;
Cohen v. California, 403 U.S. at
403 U. S. 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
422 U. S.
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
397 U. S. 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
Page 438 U. S. 760
unwilling adults from momentary exposure to it in their homes.
[
Footnote 2/2] 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,
352 U. S. 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
Page 438 U. S. 761
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
438 U. S.
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
438 U. S.
744-748;
Young v. American Mini Theatres, Inc.,
427 U. S. 50,
427 U. S. 63-73
(1976) (opinion of STEVENS, J.),
with id. at
427 U. S. 73 n.
1 (POWELL, J., concurring). [
Footnote
2/3] 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. [
Footnote 2/4]
Page 438 U. S. 762
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
427 U. S. 77-79
(POWELL, J., concurring). These are the grounds upon which I join
the judgment of the Court as to Part IV.
[
Footnote 2/1]
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).
[
Footnote 2/2]
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.
[
Footnote 2/3]
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,
436 U. S.
455-456 (1978).
[
Footnote 2/4]
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
438 U. S. 743.
Except in the context of commercial speech,
see Bates v. State
Bar of Arizona, 433 U. S. 350,
433 U. S.
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
438 U. S. 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.
ME. 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
Page 438 U. S. 763
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
438 U. S.
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 t.he 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 [
Footnote
3/1] 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,
Page 438 U. S. 764
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 preeminent 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
403 U. S. 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
Page 438 U. S. 765
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
403 U. S. 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,
418 U. S. 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
Page 438 U. S. 766
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
438 U. S.
750-751, "to burn the house to roast the pig."
Butler v. Michigan, 352 U. S. 380,
352 U. S. 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.
Page 438 U. S. 767
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 wellbeing 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,
422 U. S. 212
(1975);
see Paris Adult Theatre I v. Slaton, 413 U. S.
49,
413 U. S.
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
422 U. S. 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
422 U. S. 213
n. 10, quoting Cohen v. California, 403 U.S. at
403 U. S.
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. [
Footnote 3/2] It thus
ignores our recent admonition
Page 438 U. S. 768
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
422 U. S.
213-214. [
Footnote 3/3]
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
352 U. S. 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
constitutionally denied to children. Nevertheless, this Court
Page 438 U. S. 769
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
352 U. S.
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
438 U. S. 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
438 U. S.
757-758, and my Brother STEVENS,
ante at
438 U. S.
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
Page 438 U. S. 770
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.
[
Footnote 3/4]
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 serves 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
Page 438 U. S. 771
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 Jonson, 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. [
Footnote 3/5]
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
438 U. S. 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
Page 438 U. S. 772
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. [
Footnote 3/6] For
my own part, even accepting that this case is limited to its facts,
[
Footnote 3/7] 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
Page 438 U. S. 773
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
438 U. S. 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
438 U. S. 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
403 U. S. 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
Page 438 U. S. 774
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
403 U. S.
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
438 U. S. 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
438 U. S. 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
427 U. S. 71 n.
34 (opinion of STEVENS, J.);
id. at
427 U. S. 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
Page 438 U. S. 775
the viewing public's access to the regulated material.
Id. at
427 U. S. 62,
427 U. S. 71 n.
35 (opinion of STEVENS, J.);
id. at
427 U. S. 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.
Page 438 U. S. 776
"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,
245 U. S. 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. [
Footnote 3/8]
Page 438 U. S. 777
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,
431 U. S.
506-511 (1977) (BRENNAN, J., concurring).
Pacifica, in response to an FCC 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.
[
Footnote 3/1]
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.
[
Footnote 3/2]
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,
413 U. S. 24
(1973).
[
Footnote 3/3]
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,
390 U. S.
649-650 (1968) (STEWART, J., concurring). I doubt, as my
Brother STEVENS suggests,
ante at
438 U. S. 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.
[
Footnote 3/4]
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,
395 U. S. 396
(1969).
[
Footnote 3/5]
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
lewdness of thy youth, in bruising thy teats by the Egyptians for
the paps of thy youth." The Holy Bible (King James Version) (Oxford
1897).
[
Footnote 3/6]
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.
[
Footnote 3/7]
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 term 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.
[
Footnote 3/8]
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.
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
438 U. S. 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. [
Footnote 4/1] It is apparent that the
constitutional questions raised by the order of the Commission in
this case are substantial. [
Footnote
4/2] Before deciding them, we should be certain that it is
necessary to do so.
Page 438 U. S. 778
The statute pursuant to which the Commission acted, 18 U.S.C.
§ 1464 (1976 ed.), [
Footnote
4/3] 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. [
Footnote 4/4] 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
Page 438 U. S. 779
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
418 U. S. 114,
quoting
United States v. 12 200-ft. Reels of Film,
413 U. S. 123,
413 U. S. 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,
430 U. S. 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. [
Footnote 4/5] Indeed,
although the legislative history is largely silent, [
Footnote 4/6] 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,
165 U. S.
500-501;
Page 438 U. S. 780
Manual Enterprises v. Day, 370 U.
S. 478,
370 U. S.
482-484,
370 U. S. 487
(opinion of Harlan, J.). [
Footnote
4/7] And although §§ 1461 and 1464 were originally
enacted separately, they were codified together in the Criminal
Code of 1848 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. [
Footnote 4/8]
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.
[
Footnote 4/1]
See, e.g., Johnson v. Robison, 415 U.
S. 361,
415 U. S.
366-367;
United States v. Thirty-seven
Photographs, 402 U. S. 363,
402 U. S. 369;
Rescue Army v. Municipal Court, 331 U.
S. 549,
331 U. S. 569;
Ashwander v. TVA, 297 U. S. 288,
297 U. S. 348
(Brandeis, J., concurring);
Crowell v. Benson,
285 U. S. 22,
285 U. S.
62.
[
Footnote 4/2]
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,
345 U. S. 45;
Blodgett v. Holden, 275 U. S. 142,
275 U. S. 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.
[
Footnote 4/3]
The Court properly gives no weight to the Commission's passing
reference in its order to 47 U.S.C. § 303(g).
Ante at
438 U. S. 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,
318 U. S. 94-95;
SEC v. Sloan, 436 U. S. 103,
436 U. S.
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,
347 U. S.
290.
[
Footnote 4/4]
The Commission did not rely on § 1464's prohibition of
"profane" language, and it is thus unnecessary to consider the
scope of that term.
[
Footnote 4/5]
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).
[
Footnote 4/6]
Section 1464 originated as part of § 29 of the Radio Act of
1927, 44 Stat. 1172, which was reenacted 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."
[
Footnote 4/7]
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).
[
Footnote 4/8]
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,
434 U. S. 285.
The Court's statement that it need not consider the meaning §
1464 would have in a criminal prosecution,
ante at
438 U. S. 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
347 U. S.
296.