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FCC v. Fox Television Stations, Part II: The FCC v. Pacifica case.

This is part of a series of posts discussing the background of the Supreme Court's "fleeting expletives" case from last week, FCC v. Fox Television Stations.

Last time, I discussed George Carlin's Seven Dirty Words routine and the FCC's 1975 opinion that the routine was "indecent," though not obscene, and thus prohibited under the Communications Act of 1934, which bars "obscene, indecent, or profane language" on the radio. For those of you who haven't done so yet, you may want to take this opportunity to watch versions of the monologue here or here on YouTube.

The FCC later clarified that such language was not absolutely prohibited. Instead, the FCC was only trying, under a nuisance-type theory, to "channel it to times of day when children most likely would not be exposed to it," and its declaratory order about the Carlin monologue was "issued in a specific factual context." The D.C. Circuit reversed in 1977. According to Judge Tamm, who wrote the main opinion for the court, the FCC's prohibition was censorship, which is itself prohibited by the Act; and, "even assuming, arguendo, that the Commission may regulate non-obscene speech, nevertheless its Order is overbroad and vague."

Chief Judge Bazelon concurred, but decided that the statutory ban on FCC censorship was limited by the prohibition, also in the statute, on "obscene, indecent, or profane language." Thus, he found it necessary to actually reach the First Amendment argument; and, he decided, the Commission's definition of "indecent" speech was unconstitutional.

Judge Leventhal dissented: First, it was important to protect children from exposure to indecent language, but "even assuming that children's exposure to pornography is as inevitable as pornography itself, there is protection in disapproval, in the child's knowledge that the pornography that is seen and heard is not approved by parents or society."

And from the D.C. Circuit, the case went to the Supreme Court, which decided FCC v. Pacifica Foundation in 1978. (See here for the full text of the decision.)

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