Pacifica vs. FCC
The dawn of Federal indecency
enforcement
The Law
• Title 18 of the United
States Code, Section 1464,
prohibits the utterance of
“any obscene, indecent or
profane language by means
of radio communication.”
• But until the 1970s it was
unclear whether this was
Mae West was banned from
constitutional
radio in the 1930s (by the
industry) after her routine with
Charlie McCarthy
Then came the sixties
Rise of Free
Form FM Radio
at WBAI in New
York City
George Carlin
The case
• 1973: father complains to FCC that he and his
child heard the Carlin program on WBAI while
driving
• FCC puts complaint in WBAI’s file, calls Carlin
routine “indecent”
• WBAI appeals case to appellate court and wins
• FCC takes case to Supreme Court
Pacifica vs. FCC (1978)
• Five to four Supreme Court decision says that
the material is “indecent” and FCC can
regulate it
• “Pervasiveness” of media and individuals’
“right to be left alone” outweighs the First
Amendment
• Supremes:
“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.”
“Second, broadcasting is uniquely accessible to
children, even those too young to read.”
• William Brennan’s dissent:
“[The majority reveals] 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.”
So now what???
• Pacifica prohibits FCC from editing in advance, so
it can’t give guidelines what indecency means
• In 1988 (The Jerker) FCC expands concept, agency
would no longer sanction language or material
"that depicts or describes, in terms patently
offensive as measured by contemporary
community standards for the broadcast medium,
sexual or excretory activities or organs.“
• Public Telecommunications Act (PTA) in 1992
establishes “safe harbor” period of 10 pm to 6 am
2004, Golden Globes decision
• After Bono declares “this is really, really
fucking brilliant” on TV, FCC warns that
“fleeting expletives” (single bleeps) no longer
protected by First Amendment
• FCC sanctions Fox TV for Billboard Music
Awards comments by Cher and Nicole Richie
• 2nd Circuit Court of Appeals overrules decision
• 2009: Supreme Court says decision doesn’t
violate the Administrative Procedures Act, but
may violate First Amendment
• Supremes also overturned 3rd Circuit’s stay of
the fines for the Janet Jackson wardrobe
malfunctions
• All cases now back at Appellate courts being
reviewed on First Amendment grounds
Issues that will be raised at 2nd and 3rd
circuit courts
• First Amendment constitutionality of FCC
decisions
• Do they go beyond Pacifica?
• Does Red Lion have anything to do with this?