FCC v. PACIFICA FOUNDATION, 438 U.S. 726 (1978)

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 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. 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 326 of the Communications Act of 1934, or on the ground that the FCC's opinion was the functional equivalent of [438 U.S. 726, 727] a rule, and as such was "overbroad." Another judge, who felt that 326's censorship provision did not apply to broadcasts forbidden by 1464, concluded that 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.

181 U.S. App. D.C. 132, 556 F.2d 9, reversed.

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. 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 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 1464 that authorizes a proscription of "indecent" language that is not obscene, for the statute involved in that case, unlike 1464, focused upon the prurient, and dealt primarily with printed matter in sealed envelopes mailed from one individual to another, whereas 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 [438 U.S. 726, 728] 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.

• 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.

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