FEDERAL COMMUNICATIONS COMMISSION v. PACIFICA FOUNDATION ET AL.
No. 77-528
SUPREME COURT OF THE UNITED STATES
438 U.S. 726; 98 S. Ct. 3026; 1978 U.S. LEXIS 135; 57 L.
Ed. 2d 1073; 43 Rad. Reg. 2d (P & F) 493; 3 Media L. Rep. 2553
April 18, 19, 1978, Argued
July 3, 1978, Decided
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT.
SYLLABUS: 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
aboutindecent 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. Sec. 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 Sec. 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 Sec. 326 of the
Communications Act of 1934, or on the ground that the FCC's
opinion was the functional equivalent of a rule, and as such was
"overbroad." Another judge, who felt that Sec. 326's censorship
provision did not apply to broadcasts forbidden by Sec. 1464,
concluded that Sec. 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. 734-741; 748-750; 761-762.
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. Sec.
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. 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. 735-738.
3. The FCC was warranted in concluding that indecent language
within the meaning of Sec. 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 noncomformance 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 Sec. 1464 that authorizes a proscription of
"indecent" language that is not obscene, for the statute involved
in that case, unlike Sec. 1464, focused upon the prurient, and
dealt primarily with printed matter in sealed envelopes mailed
from one individual to another, whereas Sec. 1464 deals with the
content of public broadcasts. Pp. 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 those that are patently offensive.
Broadcasting, moreover, is uniquely accessible to children. Pp.
748-750.
MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE, and MR.
JUSTICE REHNQUIST, concluded in Parts 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. 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, 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 context of that broadcast. Pp. 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. 761-762.
COUNSEL: Joseph A. Marino argued the cause for petitioner. With
him on the briefs were Robert R. Bruce and Daniel M. Armstrong.
Harry M. Plotkin argued the cause for respondent Pacifica
Foundation. With him on the brief were David Tillotson and Harry
F. Cole. Louis F. Claiborne argued the cause for the United
States, a respondent under this Court's Rule 21 (4). With him on
the brief were Solicitor General McCree, Assistant Attorney
General Civiletti, and Jerome M. Feit. *
* Briefs of amici curiae urging reversal were filed by Anthony
H. Atlas for Morality in Media, Inc.; and by George E. Reed and
Patrick F. Geary for the United States Catholic Conference.
Briefs of amici curiae urging affirmance were filed by J. Roger
Wollenberg, Timothy B. Dyk, James A. McKenna, Jr., Carl R. Ramey,
Erwin G. Krasnow, Floyd Abrams, J. Laurent Scharff, Corydon B.
Dunham, and Howard Monderer for the American Broadcasting
Companies, Inc., et al.; by Henry R. Kaufman, Joel M. Gora,
Charles Sims, and Bruce J. Ennis for the American Civil Liberties
Union et al.; by Irwin Karp for the Authors League of America,
Inc.; by James Bouras, Barbara Scott, and Fritz E. Attaway for the
Motion Picture Association of America, Inc.; and by Paul P. Selvin
for the Writers Guild of America, West, Inc.
Charles M. Firestone filed a brief for the Committee for Open
Media as amicus curiae.
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. 755. BRENNAN, J., filed a dissenting opinion, in
which MARSHALL, J., joined, post, p. 762. STEWART, J., filed a
dissenting opinion, in which BRENNAN, WHITE, and MARSHALL, JJ.,
joined, post, p. 777.
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, 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
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. In 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." n1
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, n2
the Commission found a power to regulate indecent broadcasting in
two statutes: 18 U. S. C. Sec. 1464 (1976 ed.), which forbids the
use of "any obscene, indecent, or profane language by means of
radio communications," n3 and 47 U. S. C. Sec. 303 (g), which
requires the Commission to "encourage the larger and more
effective use of radio in the public interest." n4
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. . . . [The] 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." 56 F.
C. C. 2d, at 98. n5
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. [Sec.] 1464." n6 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 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. n7 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 Sec. 326 of the Communications Act. n8
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 Sec. 326's prohibition against censorship is
inapplicable to broadcasts forbidden by Sec. 1464. However, he
concluded that Sec. 1464 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
protectingchildren, 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 Sec. 326;
(3) whether the broadcast was indecent within the meaning of Sec.
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. Sec. 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, 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, 568-569. However appropriate 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, 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.
Sec. 326 and whether speech that concededly is not obscene may be
restricted as "indecent" under the authority of 18 U. S. C. Sec.
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. n9
During the period between the original enactment of the provision
in 1927 and its re-enactment in the Communications Act of 1934,
the courts and the Federal Radio Commission held that the section
deprived the Commissionof 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." n10
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. n11 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 the anticensorship 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. n12 In 1934, the anticensorship provision
and the prohibition against indecent broadcasts were re-enacted 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 re-enacted as Sec.
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 anticensorship provision. H. R. Rep.
No. 304, 80th Cong., 1st Sess., A106 (1947). Cf. Tidewater Oil
Co. v. United States, 409 U.S. 151, 162.
We conclude, therefore, that Sec. 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" monologue
was indecent within the meaning of Sec. 1464. n13 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 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. n14
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. Sec. 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, 130 n. 7
(18 U. S. C. Sec. 1462) (dicta). Hamling rejected a vagueness
attack on Sec. 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
Sec. 1461 contained a variety of words with many shades of
meaning. n15 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: "[The] statute since its inception has
always been taken as aimed at obnoxiously debasing portrayals of
sex." 370 U.S., at 483. In Hamling the Court agreed with Mr.
Justice Harlan that Sec. 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.
The reasons supporting Hamling's construction of Sec. 1461 do not
apply to Sec. 1464. Although the history of the former revealed a
primary concern with the prurient, the Commission has long
interpreted Sec. 1464 as encompassing more than the obscene. n16
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. n17
Because neither our prior decisions nor the language or history
of Sec. 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.
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 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, 694 (1948), but will deal with those problems if and
when they arise." 395 U.S., at 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. n18 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, 380-381. Young v. American Mini Theatres, Inc., 427 U.S. 50,
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, 613. We decline
to administer that medicine to preserve the vigor of patently
offensive sexual and excretory speech.
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. n19 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, 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 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 "'commonsense differences' between
commercial speech and other varieties." Bates v. State Bar of
Arizona, supra, at 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 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. n20 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 ideas. n21 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 n22 -- First Amendment
protection might be required. But that is simply not this case.
These words offend for the same reasons that obscenity offends.
n23 Their place in the hierarchy of First Amendment values was
aptly sketched by Mr. Justice Murphy when he said: "[Such]
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." Chaplinsky v. New
Hampshire, 315 U.S., at 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, the
constitutional protection accorded to a communication containing
such patently offensive sexual and excretory language need not be
the same in every context. n24 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, 25. n25
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 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, 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." n26 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. 728. 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 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. n27
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 "well-being of its youth" and in supporting "parents' claim
to authority in their own household" justified the regulation of
otherwise protected expression. Id., at 640 and 639. n28 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, n29 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, 388. We
simply hold that when the Commission finds that a pig has entered
the parlor, the exercise of its regulatory power does not dependon
proof that the pig is obscene.
The judgment of the Court of Appeals is reversed.
It is so ordered.
*FOOTNOTES*
n1 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. [Secs.] 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. [Secs.] 307, 308." Id., at 96 n. 3.
n2 "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.
n3 Title 18 U. S. C. Sec. 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."
n4 Section 303 (g) of the Communications Act of 1934, 48
Stat. 1082, as amended, as set forth in 47 U. S. C. Sec. 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."
n5 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.
n6 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: "[We] 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.
n7 The Commission did, however, comment:
"'[In] 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.
n8 "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. Sec.
326.
n9 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).
n10 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 Sec. 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.
n11 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.
n12 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).
n13 In addition to Sec. 1464, the Commission also relied on
its power to regulate in the public interest under 47 U. S. C.
Sec. 303 (g). We do not need to consider whether Sec. 303 may
have independent significance in a case such as this. The statutes
authorizing civil penalties incorporate Sec. 1464, a criminal
statute. See 47 U. S. C. Secs. 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, Secs. 14, 29, and 33, 44 Stat. 1168 and 1173;
Communications Act of 1934, Secs. 312, 326, and 501, 48 Stat.
1086, 1091, and 1100, 47 U. S. C. Secs. 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, Sec. 38,
44 Stat. 1174; Communications Act of 1934, Sec. 608, 48 Stat.
1105, 47 U. S. C. Sec. 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,
162. Accordingly, we need not consider any question relating to
the possible application of Sec. 1464 as a criminal statute.
n14 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).
n15 Indeed, at one point, he used "indecency" as a shorthand
term for "patent offensiveness," 370 U.S., at 482, a usage
strikingly similar to the Commission's definition in this case.
56 F. C. C. 2d, at 98.
n16 "'[While] 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.
Sec. 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 Programing Inquiry, 44 F. C. C. 2303, 2307 (1960). See also
In re WUHY-FM, 24 F. C. C. 2d 408, 412 (1970); In re Sonderling
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.
n17 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, 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 Sec. 1461,
does not support a comparable reading of Sec. 1464.
n18 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.
n19 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.
n20 Although neither MR. JUSTICE POWELL nor MR. JUSTICE
BRENNAN directly confronts this question, both have answered it
affirmatively, the latter explicitly, post, at 768 n. 3, and the
former implicitly by concurring in a judgment that could not
otherwise stand.
n21 See, e. g., Madison School District v. Wisconsin
Employment Relations Comm'n, 429 U.S. 167, 175-176; First National
Bank of Boston v. Bellotti, 435 U.S. 765.
n22 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 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.
n23 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.
n24 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, 82 n. 6 (POWELL, J., concurring).
n25 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 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 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.
n26 47 U. S. C. Secs. 309 (a), 312 (a)(2); FCC v. WOKO, Inc.,
329 U.S. 223, 229. Cf. Shuttlesworth v. Birmingham, 394 U.S. 147;
Staub v. Baxley, 355 U.S. 313.
n27 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 21.
The problem of harassing phone calls is hardly hypothetical.
Congress has recently found it necessary to prohibit debt
collectors from "[placing] 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
"[using] 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. Sec.
1692d (1976 ed., Supp. II).
n28 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, 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.
n29 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.
==================================================================
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 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, will ya? I don't want to see that shit anymore. I can't
cut 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
theShinola people feel 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-
load 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 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 kuh. 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,
yeah, 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) ) [']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)
==================================================================
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" at two o'clock
in the afternoon, and not the broad sweep of the Commission's
opinion. Ante, at 734-735. In addition to being consistent with
our settled practice of not deciding constitutional issues
unnecessarily, see ante, at 734; Ashwander v. TVA, 297 U.S. 288,
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 Part IV of MR. 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 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. n1
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, 212 (1975); see also, e. g., Miller v. California, 413
U.S. 15, 36 n. 17 (1973); Ginsberg v. New York, 390 U.S. 629, 636-
641 (1968); Jacobellis v. Ohio, 378 U.S. 184, 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 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 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:
"[Constitutional] 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, 166 (1944)]. The legislature could properly conclude that
parents and others, teachers for example, who have this primary
responsibility for children's well-being are entitled to the
support of laws designed to aid discharge of that
responsibility." Id., at 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 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 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, 384
(1977); Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U.S. 94, 101 (1973); Red Lion Broadcasting Co. v.
FCC, 395 U.S. 367, 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, 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 209; Cohen v.
California, 403 U.S., at 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 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 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 unwilling adults from momentary
exposure to it in their homes. n2 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 "[reducing] the adult population .
. . to [hearing] only what is fit for children." Butler v.
Michigan, 352 U.S. 380, 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 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 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 744-748;
Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-73 (1976)
(opinion of STEVENS, J.), with id., at 73 n. 1 (POWELL, J.,
concurring). n3 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. n4
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 77-79 (POWELL, J.,
concurring). These are the grounds upon which I join the judgment
of the Court as to Part IV.
*FOOTNOTES*
n1 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).
n2 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.
n3 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, 455-456 (1978).
n4 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 743.
Except in the context of commercial speech, see Bates v. State Bar
of Arizona, 433 U.S. 350, 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 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.
MR. 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.
Sec. 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 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 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 the 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 n1 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, 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 pre-eminent 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 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
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 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, "[the] radio can be turned off," Lehman v. Shaker Heights,
418 U.S. 298, 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 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 750-751, "to burn the house to roast
the pig." Butler v. Michigan, 352 U.S. 380, 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 ofspeech 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.
Sec. 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.
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 well-being 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, 212 (1975); see Paris Adult Theatre I v. Slaton, 413
U.S. 49, 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 "[we] 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 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 213 n. 10, quoting Cohen v.
California, 403 U.S., at 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. n2 It thus ignores our recent admonition that "[speech]
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 213-214. n3 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 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 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 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 "'[reducing] the
adult population . . . to [hearing] only what is fit for
children,'" ante, at 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 757-758, and my Brother
STEVENS, ante, at 749-750, both stress the timehonored 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 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. n4
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 serve 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 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. n5
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 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 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. n6 For my own part, even
accepting that this case is limited to its facts, n7 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 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 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 743 n. 18, and finds
solace in his conviction that "[there] 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 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.
"[We] 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 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 25-26.
My Brother STEVENS also finds relevant to his First Amendment
analysis the fact that "[adults] who feel the need may purchase
tapes and records or go to theaters and nightclubs to hear [the
tabooed] words." Ante, at 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 760. The opinions of my Brethren
display both a sad insensitivityto 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 71 n. 34 (opinion of
STEVENS, J.); id., at 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 the viewing public's access to
the regulated material. Id., at 62, 71 n. 35 (opinion of STEVENS,
J.); id., at 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.
"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, 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
researchindicates 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, "[words] 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. n8 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, 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,'" explainedthat "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 evidences 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.
*FOOTNOTES*
n1 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.
n2 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, 24 (1973).
n3 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
[proscriptions]" 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, 649-650 (1968)
(STEWART, J., concurring). I doubt, as my Brother STEVENS
suggests, ante, at 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.
n4 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, 396 (1969).
n5 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: "[Hath] 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
lewdnes of thy youth, in bruising thy teats by the Egyptians for
the paps of thy youth." The Holy Bible (King James Version)
(Oxford 1897).
n6 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.
n7 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 terms
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.
n8 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 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. n1
It is apparent that the constitutional questions raised by the
order of the Commission in this case are substantial. n2 Before
deciding them, we should be certain that it is necessary to do so.
The statute pursuant to which the Commission acted, 18 U. S. C.
Sec. 1464 (1976 ed.), n3 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. n4 But this construction of Sec. 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 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. Sec. 1461, which prohibits the mailing of
"[every] obscene, lewd, lascivious, indecent, filthy or vile
article." The Court "[construed] the generic terms in [Sec. 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 114, quoting
United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130 n. 7.
Thus, the clear holding of Hamling is that "indecent" as used in
Sec. 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, 190 (18 U. S. C. Sec. 1465).
Nothing requires the conclusion that the word "indecent" has
any meaning in Sec. 1464 other than that ascribed to the same word
in Sec. 1461. n5 Indeed, although the legislative history is
largely silent, n6 such indications as there are support the view
that Secs. 1461 and 1464 should be construed similarly. The view
that "indecent" means no more than "obscene" in Sec. 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, 500-501; Manual Enterprises v. Day,
370 U.S. 478, 482-484, 487 (opinion of Harlan, J.). n7 And
although Secs. 1461 and 1464 were originally enacted separately,
they were codified together in the Criminal Code of 1948 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 Sec. 1464, to prohibit nothing more than
obscene speech. n8 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.
*FOOTNOTES*
n1 See, e. g., Johnson v. Robison, 415 U.S. 361, 366-367;
United States v. Thirty-seven Photographs, 402 U.S. 363, 369;
Rescue Army v. Municipal Court, 331 U.S. 549, 569; Ashwander v.
TVA, 297 U.S. 288, 348 (Brandeis, J., concurring); Crowell v.
Benson, 285 U.S. 22, 62.
n2 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, 45; Blodgett v. Holden, 275 U.S. 142, 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.
n3 The Court properly gives no weight to the Commission's
passing reference in its order to 47 U. S. C. Sec. 303 (g). Ante,
at 739 n. 13. For one thing, the order clearly rests only upon
the Commission's interpretation of the term "indecent" in Sec.
1464; the attempt by the Commission in this Court to assert that
Sec. 303 (g) was an independent basis for its action must fail.
Cf. SEC v. Chenery Corp., 318 U.S. 80, 94-95; SEC v. Sloan, 436
U.S. 103, 117-118. Moreover, the general language of Sec. 303 (g)
cannot be used to circumvent the terms of a specific statutory
mandate such as that of Sec. 1464. "[The] Commission's power in
this respect is limited by the scope of the statute. Unless the
[language] involved here [is] illegal under Sec. [1464], the
Commission cannot employ the statute to make [it] so by agency
action." FCC v. American Broadcasting Co., 347 U.S. 284, 290.
n4 The Commission did not rely on Sec. 1464's prohibition of
"profane" language, and it is thus unnecessary to consider the
scope of that term.
n5 The only Federal Court of Appeals (apart from this case)
to consider the question has held that "'obscene' and 'indecent'
in Sec. 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).
n6 Section 1464 originated as part of Sec. 29 of the Radio
Act of 1927, 44 Stat. 1172, which was re-enacted as Sec. 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."
n7 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. Sec. 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).
n8 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, 285. The Court's statement that it
need not consider the meaning Sec. 1464 would have in a criminal
prosecution, ante, at 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 Sec. [1464] the
broad construction urged by the Commission, the same construction
would likewise apply in criminal cases." FCC v. American
Broadcasting Co., supra, at 296.
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