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."
Justice Stevens wrote the majority opinion, in which he was joined by Chief Justice Burger, Justice Rehnquist (later Chief Justice), Justice Blackmun, and Justice Powell. Stevens helpfully divided his opinion into four parts, as follows:
[W]e must decide: (1) whether the scope of judicial review encompasses more than the Commission's determination that the monologue was indecent "as broadcast"; (2) whether the Commission's order was a form of censorship forbidden by § 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. "As broadcast." Despite the broad language in the FCC's order, this was just an opinion about one particular broadcast, and that, Stevens wrote, was all the Court would review.
II. Is this "censorship" within the meaning of § 326? No. Recall, from the previous post, that the prohibition against FCC censorship and the ban on bad language, which are now in two separate sections, were originally, in the 1927 Radio Act, in a single section:
Nothing in this chapter shall be understood or construed to give the licensing authority the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communications. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication.
"Licensing authority" was later changed to "Commission" (i.e., the FCC), but otherwise the language from the 1927 Radio Act largely went into the 1934 Communications Act unchanged, and the division into two sections didn't happen until 1948. Looking at it that way, it's clear that the ban on indecent communication can't be censorship, or else the original section would be nonsensical, or at least weird. (Well, I suppose one could argue that the second sentence is just moral exhortation to the people, so people shouldn't utter such language but the FCC is powerless to stop them....)
III. Are the "filthy words" indecent? Recall that the FCC had defined "indecent" in its opinion:
[T]he concept of "indecent" is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.
Pacifica's argument was that really, "indecent" in the statute actually means the same as "obscene," so as long as the Carlin monologue isn't obscene (which everyone agreed with, since it lacked an appeal to the "prurient interest"), it can't be indecent either. The basis for Pacifica's argument was the Court's opinion in Hamling v. United States, where the phrase "obscene, lewd, lascivious, indecent, filthy or vile" in 18 U.S.C. § 1461 was interpreted to just mean "obscene." (Justice Stewart's dissent, see below, agrees with this theory.) No dice, Justice Stevens says; "[t]he reasons supporting Hamling's construction of § 1461 do not apply to § 1464." Thus, the Court agreed with the FCC's conclusion that the Carlin monologue was, in fact, indecent.
IV. The First Amendment. O.K., now the part you've all been waiting for, where, having decided that the Carlin monologue was in fact prohibited by the statute, the Court decides whether that prohibition comports with the First Amendment. Pacifica's arguments were (1) an overbreadth argument — the FCC's interpretation of the statute was so broad that, even if the Carlin monologue itself was unprotected, the FCC's interpretation should be struck down because it covers too much protected speech — and (2) the argument that broadcast of non-obscene language is protected. Here, Stevens says three things:
A. (Not joined by Blackmun or Powell, so Stevens is writing for three:) The overbreadth argument fails because we're only decided whether this particular broadcast could be prohibited. Yes, this may lead to some self-censorship, but only as regards "the broadcasting of patently offensive references to excretory and sexual organs and activities," which "surely lie at the periphery of First Amendment concern."
B. (Also not joined by Blackmun or Powell, so again not part of the majority opinion:) Yes, this is speech, and yes, the FCC's prohibition was content-based; but there's no absolute rule against content-based restrictions. For instance, the government can prohibit incitement, regulate commercial speech more stringently, punish libels of private citizens more severely than libels of public officials, prohibit obscenity, etc. In the case of the Carlin monologue, the words "offend for the same reasons that obscenity offends." They have an extremely low place "in the hierarchy of First Amendment values." So we need to examine the context.
C. (O.K., back to writing for a majority:) "[E]ach medium of expression presents special First Amendment problems," and broadcasting gets the most limited protection. Here, Justice Stevens stressed some of the same concerns highlighted by the FCC in its order. "First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans," not just in public but also in the home, where privacy rights are paramount and where prior warnings can't adequately protect you. "Second, broadcasting is uniquely accessible to children." While Cohen's "Fuck the Draft" jacket "might have been incomprehensible to a first grader," the Carlin monologue "could have enlarged a child's vocabulary in an instant." Justice Stevens closed by emphasizing the narrowness of the holding and repeating the analogy of indecency regulation with traditional regulation of nuisances.
There's a lot we could quarrel with in Part IV, but as I said in the previous post, that's not important right now. Now consider Justices Powell and Blackmun, who didn't join Parts IV-A and IV-B. In Powell's concurrence (joined by Blackmun), Powell repeats many of the same considerations that Stevens already covered. Why didn't he join those two sections? Because he did "not subscribe to the theory that the Justices of this Court are free generally to decide on the basis of its content which speech protected by the First Amendment is most 'valuable' and hence deserving of the most protection, and which is less 'valuable' and hence deserving of less protection." Rather than engage in this "value" calculus, he preferred to simply analyze whether the broadcast media had unique characteristics that, in light of society's interest in protecting children, justified stronger regulation. Which is what Part IV-C was all about.
Justice Stewart dissented, arguing that, based on Hamling v. United States, "indecent" should cover only obscene speech. (This dissent comes at the end, but I'm discussing it out of order.)
Justices Brennan and Marshall dissented, agreeing with Stewart on the statutory analysis (see why I took it out of order?) but also taking issue with the majority's First Amendment analysis. It's a good opinion, but because we're interested in FCC v. Pacifica insofar as it helps us understand last week's FCC v. Fox Television Stations opinion, I'll skip it. But as they say on the blogs, read the whole thing.
[UPDATE: Oh why not, let's do the Brennan dissent. He says, quite sensibly, that the majority's two rationales for regulation — (1) radio's intrusion into the home and (2) the protection of children — don't hold up.
As to the intrusion point, radio listeners voluntarily let the radio communications into their home, and can turn the radio off if they want; and moreover, what about the rights of the transmitters and those who actually want to receive the transmissions?
As to the protection of children, previous cases, Brennan says, had only endorsed restrictions where obscenity — that is, at a minimum, something erotic — was involved; and a recent case had even said 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." Moreover, the FCC's prohibition here has the effect of also making the material unavailable to adults. The idea that parents should be able to control the upbringing of their children is correct, but it supports the idea that parents, not the government, should be able to control what their kids listen to. "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."
The Brennan dissent goes on to point out that the majority opinion contains no principled limits on how far this FCC censorship can go, and, "[t]aken to their logical extreme, these rationales would support the cleansing of public radio of any 'four-letter words' whatsoever, regardless of their context," including from Shakespeare, Joyce, Hemingway, ... , and Chaucer! (Given the FCC's later "fleeting expletives" policy announced in 2004, this turns out to not be a silly concern.) In the last sections of the dissent, Brennan does a "the medium is the message" riff (rebutting claims that the same ideas could be expressed in less vulgar language), and — citing linguistic sources on Black English — accuses the majority of "acute ethnocentric myopia" in thinking that everyone thinks and uses words like they do.]
So what's the bottom line? The FCC adopted a interpretation of the Communications Act under which broadcasts like the Carlin monologue could be prohibited. The Supreme Court said this was a permissible interpretation of the Act, and it was not prohibited by the First Amendment. Next time, we'll jump forward a quarter century and see how the FCC changed its policy in 2004 to go after "fleeting expletives."
Related Posts (on one page):
- FCC v. Fox Television Stations, Part IV: The FCC's new standards in action.
- FCC v. Fox Television Stations, Part III: Bono and the FCC's change of course.
- FCC v. Fox and the Demise of Local Broadcasting:
- FCC v. Fox Television Stations, Part II: The FCC v. Pacifica case.
- FCC v. Fox Television Stations, Part I: The Late, Great George Carlin.
- Is Scalia's "F-Word" Opinion Good News for Obama?
- Holy F-Word, Batman: