Federal Communications Commission (FCC) v. Pacifica Foundation (1978)
—Chrissie
Listen here: https://www.spreaker.com/user/bqn1/hwts177
The First Amendment to the United States Constitution establishes that “Congress shall make no law...abridging freedom of speech, or of the Press,” but how to define and abridgement has been argued since its establishment. As new mediums became available for the transmission of speech, the question of how much regulation could be applied usually waited until someone brought the case in front of a Federal Court. The issue was handled for broadcast media (radio and TV delivered over the airwaves) in the 1978 Supreme Court case Federal Communications Commission v. Pacifica Foundation.
The case was prompted by a complaint in 1973 by John Douglas against the New York City radio station WBAI for their airing of the track “Filthy Words” on George Carlin’s recently released album, Occupation: Foole. Douglas objected to the fact his (15-year-old) son was exposed to the material while they were in the car at two in the afternoon. He argued that the material was indecent and inappropriate for the time of day. Douglas’ complaint was not entirely unprompted; he was an active member of the conservative organization Morality in Media (now known as The National Center on Sexual Exploitation), which has sought to outlaw anything it deems inappropriate or obscene. The list of what they oppose includes pornography, the decriminalization of sex work, sex education in schools, and any acknowledgement of the realities of gender and sexual orientation, as well as many other related things. Douglas’ complaint was heard by the FCC, who essentially gave the owner of WBAI, Pacifica Foundation, a warning; they did not issue any sanctions on the company, but did place a note in their file for future reference about such issues. Pacifica appealed the decision to the DC Court of Appeals, who ruled 2-1 in favor of Pacifica, indicating that the FCC had improperly censored the station. The FCC appealed this ruling, which led to its being heard by the Supreme Court of the United States in April 1978.
The question of censorship of speech that was obscene, rather than merely indecent, had already been dealt with in earlier cases, establishing that obscenities are not protected by the Free Speech Clause of the First Amendment. The Carlin routine was deemed indecent because it dealt with sexual and excretory themes, but was not explicit about these. The Court ruled 5-4 in favor of the FCC, finding that it had the right to restrict indecent language on broadcast media. Justice John Paul Stevens’ opinion stated that the routine was not political in nature and therefore did not have the protection of political speech. He added that the restriction was reasonable because the medium is so easily accessible to children. The dissent, authored by Justices William Brennan and Thurgood Marshall, argued that it was not the FCC’s place to censor speech, particularly when the argument was, in part, that the speech was unacceptable for one group (young minors) but acceptable for others (older minors and adults). It is important to note the Court specified broadcast media; the ruling does not apply to non-broadcast media, such as cable and subscription streaming services. Commercial cable stations, such as CNN, AMC, and MTV, tend to self-censor so as not to create tension with their advertisers.
After this ruling, the FCC issued several limitations on broadcast of material deemed indecent or profane. For example, this is the origin of the rule that allows some types of “indecency” to be broadcast between 10 pm and 6 am, meaning the host of a late-night talk show can say “shit,” but the sitcoms that aired a few hours earlier cannot. These rules have been relaxed somewhat in the last few decades, but general idea has remained.
This case is sometimes erroneously referred to as FCC v. George Carlin, because of the material prompting the case. In fact, he was not actually involved in this suit, though he did deal with legalities surrounding his material. A few months prior to the initial complaint against WBAI, Carlin was arrested on charges of disturbing the peace for performing the same routine at Milwaukee’s Summerfest. The attention from these issues assured that Carlin made the Seven Dirty Words a centerpiece of his shows for years to come.
On a personal note, and as you may know if you also listen to other podcasts I’ve been on, my parents censored little; cassettes of George Carlin’s shows were a staple on road trips. One of the most important lessons this taught my sister and I is one Carlin himself emphasized: words are just words, it’s how they are used that is the important part. To that end, I’ve included in the podcast the uncensored clip that prompted the case. Enjoy