Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726; 98 S. Ct. 3026; 57 L. Ed. 2d 1073 (1978)
Facts—A satiric humorist, George Carlin, recorded a twelve-minute monologue entitled “Filthy words” before a live audience in a California theater. He noted that these were the sorts of words one could not repeat on the airwaves. He repeated these words in a variety of colloquialisms. In October 1973, a New York radio station broadcast the monologue at 2 p.m., which a father and son heard while in a car. The father complained to the FCC and following some correspondence between the FCC and the Pacifica Foundation, the monologue was judged “patently offensive” though not necessarily “obscene” and, because the broadcast was at a time when children are an audience, the FCC banned the monologue. A three-judge panel of the Court of Appeals reversed.
Question—Does the Federal Communications Commission have power to regulate a radio broadcast that is indecent but not obscene?
Decision—Yes.
Reasons—J. Stevens (5–4). Although the commission held the monologue “patently offensive” and not “obscene,” it was not its intention to “censor” material but to “channel” it beyond the exposure of children who constitute a daytime audience. Broadcasting requires special treatment because children have access to radios and are often unsupervised by parents, radios are in homes and people’s privacy is “entitled to extra deference,” and unconsenting adults can tune in without any warning that offensive language is being broadcast. Because there is a scarcity of spectrum space, the government can license in the public interest. Although the FCC cannot edit broadcasts, it cannot be denied its statutory power “to review the content of completed broadcasts in the performance of its regulatory duties.” The FCC’s ruling covers “patently offensive references to excretory and sexual organs and activities” and will not restrict serious communication by the use of less offensive language. “We simply hold that when the commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on the proof that the pig is obscene.”
J. Marshall and J. Stewart, dissenting, focused both on the right of media to broadcast freely and on the ability of parents to turn a radio off when they found programming to be offensive.
Note—In an earlier case involving zoning, Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926), the Court said, “a nuisance may merely be a right thing in the wrong place, like a pig in the parlor instead of the barnyard.”
