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Law School Case Brief

FCC v. Pacifica Found. - 438 U.S. 726, 98 S. Ct. 3026 (1978)


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.


A radio station of respondent Pacifica Foundation 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 about indecent 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. § 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 § 1464. The Court of Appeals reversed. Respondent contends that the broadcast was not indecent within the meaning of the statute because of the absence of prurient appeal. 


Did the FCC err in issuing an order that the language used in the humorist's monologue was patently offensive, thus, not entitled to absolute protection under the First Amendment?




The Court held that the FCC's action was constitutionally permissible. The action was not forbidden "censorship" within the meaning of 47 U.S.C.S. § 326 because that statute did not limit the FCC's authority to impose sanctions on licensees who engaged in obscene, indecent, or profane broadcasting. The monologue was indecent under 18 U.S.C.S. § 1464 because it did not conform to accepted standards of morality; prurient appeal was not an essential component of indecent language. Thus, there was no basis for disagreeing with the FCC's conclusion that indecent language was used in the broadcast. Content that was vulgar, offensive, and shocking was not entitled to absolute protection under the First Amendment.

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