FCC v. PACIFICA FOUNDATION

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Argument of Joseph A. Marino

Chief Justice Warren E. Burger: We will hear arguments next in Federal Communications Commission against the Pacifica Foundation.

Mr. Marino, you may proceed when you are ready.

You may bear in mind that we are familiar with the facts of the case and get directly to your legal argument, if you wish.

Mr. Marino: Thank you, Your Honor.

May it please the court.

Mr. Chief Justice and may it please the court.

In this case, the FCC has brought this case to you for review and from a judgment of the court below, an opinion in which the court split and their opinion, with Justice Leventhal dissenting, in the hope of getting some clarification to the meaning of the word “indecent” as appears in the court in the Criminal Code 1464.

The FCC has, from beginning in 1970, tried to give some concrete meaning to the statute.

The FCC recognized in the very first decision in 1970, that its opinion would, of course be subject to judicial review and it welcomed judicial review.

This case came to the FCC in a specific complaint from a citizen in New York.

The case as it is now before the court really raises two issues.

The first question of statutory construction is whether or not the indecent, as that word appears in 1464, should be subsumed into the obscene as it has been in several other federal cases.

On this issue, both the FCC and the Department of Justice are in agreement.

In their briefs before you, argue that it should not be.

The Department of Justice, in their brief, makes a very literal statutory analysis of the provision of 1464.

It points out that the clear language that Congress used is any obscene, indecent, or profane that this language was used in disjunctive that Congress was obviously trying to reach even the use of one word which was either indecent, obscene, or profane.

Although, we quickly add that the case we have before you deals not with obscenity but with indecency.

If I could just back up and focus on the complaint that the commission had before it, that complaint was filed by a listener in New York as it is a specific complaint which identified four words.

Those words would be defined as verbal taboos and, in fact, Professor Hayakawa in textbook on “Language in Thought and Action” identifies them as verbal taboos and says that this usually deals with words having something to do with sexual or excretory organs.

The words amount and as one judge has described them as verbal slabs.

So, this specific complaint came to the commission.

It came to the commission at a time shortly after this court’s opinion in Miller.

It came to the commission shortly after the D.C. Circuit had affirmed its opinion in the Illinois Citizen case dealing with the question of obscenity and had recognized that the presence of children in the audience was a vital factor.

This really was at the heart of the commission’s decision.

It was the heart of the compliant that the commission had before it.

The listener pointed out that the words were broadcast at a time in the afternoon when a child could have been tuning to dial and would have come across those words.

The listener pointed out that, in fact, he had a child with him in the car.

This really was, we think, at the heart of the commission’s decision when it came to the concept of indecency.

The commission, as the Justice Department correctly recognizes and points out, took element D of the Miller case patently offensive, tried to give flesh to that element in a case where you are merely dealing with individual words.

What it said is that what we are dealing with when we construe the indecent is words which are patently offensive by contemporary, community standards for the broadcast media which deal with sexual and excretory organs which have broadcast at a time of the day when there is a reasonable risk that children may be in the audience.

This is where the commission took a new tack, and we believe and I think Judge Leventhal recognized with regards to the place with the indecency standard.

It tried to channel these words out of time periods when there would be a reasonable risk of children being in the audience.

The case was appealed to the D.C. Circuit which split.

We in our brief, have called to your attention the opinion of Judge Leventhal.

We think that that opinion correctly construes the commission’s order as a narrow declaratory order limited to the facts that the commission had before it, that the complainant had brought to the commission that the order as it was presented to the court as a flat ban on these words that these words cannot be broadcasted at really different times of the day.

But that the only -- when it ruled on the compliant itself, the commission narrowed its holding to the facts that it had before it.

It tried to accomplish two things with the declaratory order.

It tried to tarnish a concrete definition of the word “indecency” and we must bear in mind that the Justice Department has told the court that the commission could have read the indecent prohibition in the criminal statute as a flat ban.

The commission did not do so.

It then proceeded to analyze the complaint and the conflicting interest and competing interest that were at stake here.

Central to those interests, Your Honor, was the recognition that this court had made in the Yoder case that the parental interest in the upbringing of children is an important value.

That opinion the commission found very helpful because of the fact that in Yoder, this court not only relied on that interest but also relied on the Ginsberg opinion where Mr. Justice Brennan had recognized this similar interest.

The Yoder opinion was also instructive because it relied on at least Cf. the Rowen case in which this court recognized that in certain circumstances, people are captives in their own homes and that, at that point, they are entitled to privacy interest.

The commission’s opinion really, at the heart of the case, was the attempt to protect children from these words.

The commission also tried to give some recognition to privacy rights of people in their home who would tune into a station and be confronted with these words.

We would point out that in CBS v. DNC case this court recognized that a radio listener is, in many ways, a member of a captive audience.

I think we have made our point, Your Honor.

If there are no further questions, I would save some time for rebuttal and would be very happy to answer any question.

Chief Justice Warren E. Burger: You referred to some work of now Senator Hayakawa.

But it is not cited in your brief.

Mr. Marino: I apologize, Your Honor.

The text that I referred that says it is Professor Hayakawa’s text on Language and Thought and Action.

There are two editions.

At least I know of two editions.

The 1949 edition is very interesting because it recognizes not only the verbal taboos that are before you dealing with sexual or excretory organs but goes on to point out that, at least at that time in broadcasting, there were many more taboos that made it very hard for people to communicate.

But in the ’70 edition, he drops the reference to special taboos applicable to radio and identifies the ones that we think are before you.

Justice John Paul Stevens: Mr. Marino, I do have a question.

I take it the commission’s position is that these words are indecent but not obscene.

Mr. Marino: Yes, Your Honor.

Justice John Paul Stevens: Does that mean that if this particular record or these particular words are said over, say, a CB radio transmission from an automobile to another automobile or something like that, would the person playing the record or saying the words commit a crime?

Mr. Marino: Your Honor, the commission’s definition in this declaratory order addressed the broadcast medium which is different from the CB.

Justice John Paul Stevens: I understand that.

I am just wondering what the commission’s view is on whether that would be a crime if these words with the same record were played the same time of day over a CB transmission, the statute would seem to apply to it, would it not?

Mr. Marino: Your Honor, we have a problem here.

The Department of Justice looks at that statute with criminal enforcement in mind The commission looks at the statute with civil enforcement in mind and with an attempt to channel.

I think that once the commission has adapted this concept of channeling, at least in broadcasting, it really has to be an egregious case before it would rise to the point in time.

Justice John Paul Stevens: My question is, under your construction of the statute would playing this record and saying these words over a CB at 2 o'clock in the afternoon constitute a crime?

Mr. Marino: Your Honor, I think that if we are looking at this as a criminal statute.

Justice John Paul Stevens: It is a criminal statute, is it not?

There is no statute except the criminal statute.

Mr. Marino: We think that it would violate the commission’s instruction of the statute, I guess.

Justice John Paul Stevens: Let me ask you again.

Would it constitute a crime in the opinion of the Federal Communications Commission or do you have a position on that?

Mr. Marino: I do not think we have a position on that, Your Honor.

Justice John Paul Stevens: Do you take the view that the same words and the same statute can mean different things in different proceedings?

Mr. Marino: If it is for purposes of regulatory action in one case and channeling the words into a different time period and in another case, really the reason why I hesitate on the crime is because that is really a question that we would defer to the Justice Department.

If we brought a complaint to them and they said this does not constitute an offense that would be the end of it.

Chief Justice Warren E. Burger: Do you have any direct criminal enforcement authority?

Mr. Marino: No.

Chief Justice Warren E. Burger: Can you bring a criminal proceeding?

Mr. Marino: No, we cannot.

We have to refer it.

Chief Justice Warren E. Burger: Going to the question about CB, are the CB people licensed in some way that they get a license of some sort?

Mr. Marino: They do, Your Honor.

Chief Justice Warren E. Burger: Would not the commission at least have, arguably, some other remedy against the holder of a license by canceling his license?

Mr. Marino: Yes, Your Honor.

We have administrator or regulatory action.

Chief Justice Warren E. Burger: Just as you do with broadcast relations at the end of his when he came up to renewal, this kind of conduct would certainly be a factor to be considered in the renewal of the license, would it not?

Mr. Marino: Yes, Your Honor.

Justice William H. Rehnquist: Mr. Marino, does not the commission consider any number of factors at the time of license renewal that very likely the government could not prosecute a station for criminally?

Mr. Marino: Yes, Your Honor.

Under the public interest standard, it would have to be -- one violation might not rise to the level of justifying some action at renewal but, yes, it would.

Justice William H. Rehnquist: Why does the commission not justify this particular rule under the public interest standard at the definition of public interest standard?

Mr. Marino: Your honor, the commission has been given at least three sections in the Communications Act.

They are in which Congress has asked the commission to enforce 1464 by administrative action.

It feels that in a situation where we are reaching at least words that since there was the indecency prohibition that was the way to try to give it some concrete meaning.

In response to Justice Steven’s question, we do refer cases to the Justice Department for prosecution of CB operators and I think that is really the only area that I know of in which there have been any recent convictions for violating 1464.

I think there were two cases arising in the Seventh Circuit which I know you were on those panels where those prosecutions were appealed.

Unknown Speaker: I am still not completely clear on whether the commission takes a position that the same statutory words can have a different meaning in a civil proceeding for cancellation or whatever it might be, and also than it has in a criminal proceeding.

In other words, can the word “indecent” have a broader meaning in one proceeding than it has in another one in a different statute?

Mr. Marino: As Justice Stevens have pointed out, we have not only the indecency prohibition.

Justice John Paul Stevens: I understand you have a public interest here.

To the extent that you rely on the criminal statute, do you say that word has different meaning depending on the kind of proceeding that is brought to enforce that statute?

Mr. Marino: I guess we rely on more than the criminal statute.

We are relying on the criminal.

Unknown Speaker: But to the extent that you rely on that statute, do you contend that the same word has two different meanings depending on the nature of the proceeding that is brought?

Mr. Marino: I do not think we could because Congress wrote the word and all we are trying to do, Your Honor, is give some limiting construction to it.

Chief Justice Warren E. Burger: But you are not confined to that statute under renewal of a license, are you by any means?

Mr. Marino: We are not, Your Honor.

We have the public interest standard.

You are absolutely correct.

Chief Justice Warren E. Burger: The same conduct, the same words, whether they were ultimately found to be criminal or non-criminal might constitute a basis for not renewing a license, might they not?

Mr. Marino: As you pointed out in the United Church of Christ, the commission has to make a positive finding of renewal of this application is in the public interest and that finding could not be made in a situation.

Chief Justice Warren E. Burger: While it could not be criminal conduct for a licensee to have one sided programs on racial or political matters, that might be grounds for refusing to renew their license.

That is clearly held up until now.

The courts that have reached it, is it not so?

Mr. Marino: Yes, Your Honor.

So that the commission could have reached it under the public interest standard and I think it did rely on the public interest standard and encouraging the wider use of radio in the public interest.

But, it felt that since that specific prohibition has been in the statute, it would try to give some concrete meaning to it and limit it as much as possible in the light of this court’s opinions in the First Amendment.

Unknown Speaker: You are not talking about 18USC Section 1464.

Mr. Marino: Yes, Your Honor.

Unknown Speaker: That is the issue in this case, is it not?

Mr. Marino: It is 18USC1464 but it is also in the context of the Communications Act.

Unknown Speaker: Yes, I understand that.

But, it is the meaning of Section 1464 is at issue here and the commission’s power.

Mr. Marino: The commission can use it.

Unknown Speaker: Under the statute that incorporate by reference that criminal statute.

Mr. Marino: Yes and as it uses that prohibition for regulatory activity.

Unknown Speaker: Right.

Mr. Marino: Thank you, Your Honor.

Chief Justice Warren E. Burger: Very well, Mr. Marino.

Mr.Plotkin?

Argument of Harry M. Plotkin

Mr. Plotkin: Mr. Chief Justice and may I please the court.

I would like to place this case just a little bit into a proper perspective so that you will know what we are talking about because we are talking about a criminal statute.

This case, very briefly, involves a program on the non-commercial educational station in New York with a limited audience which was a discussion program that was involved on this particular day.

It is a regular program on this particular day.

The program was devoted to discussion of contemporary attitude with respect to the language.

Chief Justice Warren E. Burger: I did not get your characterization of this station.

What kind of a station?

Mr. Plotkin: It is a non-commercial educational station.

That means it is a station licensed as a non-profit organization none of whose activities can be -- there can be no commercials on it and its programs are of an educational nature.

It is like WETA here in Washington.

It is the same type of station.

Justice William H. Rehnquist: Almost.

Mr. Plotkin: If it is a little hyperbole, I was describing the morphology rather than the function, I think.

But, in any event, this was the discussion program and in that day the discussion was devoted to contemporary language and it is part of the program, the moderator took questions, answered questions, and then played this segment of a record by George Carlin called Occupation Fool and the trick for selection was filthy words and it is twelve minute dialog.

Before the dialog was put on, there was an announcement that some of the words on this program may be of a delicate and offensive nature and those who might be offended by it might tune out for 15 minutes and come back again for the program.

Unknown Speaker: Do you think that leads young people to turn off the program or is that intended to be a come on to be sure that they will listen?

Mr. Plotkin: It is awfully hard to know both in advertising and in general.

This type might be invitational rather than the contrary.

I think on this type of station this is not because this in not a type of a station that is devoted to commercial enterprises.

This was not a pandering program.

It is not a titillating program.

It is a station that does devote itself to the unusual program and to the highly controversial program to a wide variety of programs.

While on other stations this type of ad might be a come on, on this type of station, I do not think this is the intention.

I do not think we are dealing with subjective matter.

I think we are dealing with objective matter.

Justice Thurgood Marshall: Of course, the child who is tuning in knows what kind of station this is.

Mr. Plotkin: Yes.

The child was sitting with his father.

Justice Thurgood Marshall: No, I said the average child knows that this is an educational station which has a broad range of programs.

How in the world could a child know that?

Mr. Plotkin: How could he know it is an educational station?

Justice Thurgood Marshall: Yes.

Mr. Plotkin: This particular child, we know very little about him.

We only know about his father who sent in the complaint.

But, in any event, he sends in a complaint and Pacifica Foundation answered that this was the work of a social satirist and that this was intended to have a discussion of the whole subject.

The FCC then adapted a memorandum opinion on order.

They adapted a memorandum opinion on order as part of an overall proceeding where the commission, in response to complaint in Congress and pressure from other groups, was addressing several different subjects: violence, sex-related programs, and obscene and indecent language.

Very interestingly, they talked at great length about violent programs and they are talking about television as well as radio.

They are talking about violent programs.

They are talking about sexually oriented programs.

Very interestingly, the commission said “while there may be social harm attributable to some of these things, there is nothing we can do about it because this is a very delicate area of a First Amendment and, therefore, this is the sort of thing we leave to the station’s good judgment, to their editorial discretionary judgment.”

But when it comes to obscenity or indecency, it said, it is a different subject because, here, we have a specific criminal statute, 18USC1464, and this statute says you can do something about obscenity, indecency, or profanity that you cannot do with respect to violent or sex-oriented material.

It is important to look at the statute.

The statute is not part of the Communications Act but it does forbid the utterance of indecent, obscene, or profane language over radio whether it is radio, television, CD, or any other type of radio communication.

The commission has given specific authority to enforce it either by revoking a license, by issuing a seize-and-desist order, or by levying a fine.

Here, they did not do any of those three things.

Here, they issued a general declaration which says “we find that these types of words, particularly when children are likely to be in the audience, indecent because they refer in a patently offensive manner to sexual or excretory organs and that, therefore, they should be banned during that period and that they cannot be redeemed by context.

Even though they have literary, artistic, or scientific value, they are banned per se.”

They do want to say --

Unknown Speaker: Are you arguing now that this has literary or artistic value?

Mr. Plotkin: As a matter of fact, in the overall context, yes it was.

The words themselves may not, but the overall context, yes, Your Honor.

Unknown Speaker: This is educational in your view?

Mr. Plotkin: The question as to whether it is educational or not would be not involved in this case.

As to whether it has artistic, literary, scientific value, yes.

Even Commissioner Robinson who concurred in the case, on a very narrow point, said that if he had to judge upon whether it had artistic, literary, scientific value, he would come down and say that it did have it.

But, he agreed with the commission that you do not look at context when children are likely to be in the audience.

Justice Thurgood Marshall: I am not an expert but, is that artistic deliberately?

Mr. Plotkin: Pardon?

Justice Thurgood Marshall: Is that artistic deliberately?

Mr. Plotkin: Well, I think the use of words is a very difficult matter.

Obviously, some people use words in some connection and other people use them in other connection.

I do want to address myself to the statute.

We are not talking about a criminal statute.

This court has previously held when the commission has attempted to adapt the rules and regulations related to a lottery these which also was a criminal statute where the commission had the same authority;p

This court in the Federal Communications Commission against ABC which is at 347US specifically held that the commission cannot interpret the words of a criminal statute when applying it its regulatory aspect, any differently than a court would.

This court specifically overturned rules and regulations of the commission which attempted to define considerations for the purpose of a lottery as being different from what it was in a criminal law.

Here, we have a statute that uses obscene, indecent, or profane which is exactly the same type of words that are used in 18USC1461 which have been before this court in the Hamling case.

This court has specifically held that it is a matter of statutory construction that when those words are used, the words indecent, filthy, vile, and obscene must mean the same as obscene and in order to satisfy the dual test of avoiding vagueness under the Due Process Clause and, must as a whole, appeal to perient interest and must be without any literary, artistic, social, or scientific value.

Justice William H. Rehnquist: To say held may be a little bit of an overstatement, may it not?

We do not confront the entire section by section of the statute in that opinion.

Mr. Plotkin: No.

I have the same problem.

My predecessor here, since you wrote the opinion, Your Honor.

We now so construe just to avoid the problem, I think that is the strongest language to a third person as it is possible to say.

I am not saying that no other conclusion was possible but the language is very strong in order to say the statute that was so construed.

Justice William H. Rehnquist: There is no doubt that the words are there in the opinion.

I think maybe equivalent for you to describe it as a holding, since a holding is presumably the application of the law to the particular set of facts before the court.

Mr. Plotkin: Well, I think that is right and, technically, that was 1461 there and this is 1464.

But, the words in the statute are the same.

The medium is the same.

We have a First Amendment medium here just as we do there.

It seems to me that not only do we have a First Amendment medium under the First Amendment but Section 326 of the Communications Act specifically says that the commission shall have no power of censorship.

This is an entirely different thing from the fairness doctrine or lack of balance where, because this is a medium with scarcity as a factor.

The court has said that in order to make sure the medium is made available to a maximum number of people, we will impose certain duties upon broadcast stations to make sure that all can use it.

But, that is an entirely different thing from the government coming in and saying that you are forbidden to do something.

In the Red Lion case, which Justice White authored, it made a very point that whereas the Fairness Doctrine and the Personal Text Doctrine might be sustained because it is expanding the medium.

It had a real caveat in it and an entirely different question would be presented if the government here were trying to suppress speech.

That is exactly what they are doing here.

They are trying to suppress speech.

If they are trying to suppress speech, they must be able to pass the same test here as they do in any other First Amendment medium.

The fact that this is radio does not make a difference.

Justice William H. Rehnquist: You say the question was reserved in Red Lion as it certainly was.

Mr. Plotkin: Yes.

Justice William H. Rehnquist: That does not necessarily mean that in the case of regulated airwaves they have to pass or sustain a test as they would, if they sought to impose this test in a newspaper, does it?

Mr. Plotkin: I think 326 does not mean that, Your Honor.

I think not only the First Amendment but I think Congress was saying that in Section 326 when it says “the commission shall have no power of censorship.

”When it comes to suppression, I think the same test is applicable to radio and television as it is applicable to a newspaper.

Justice William H. Rehnquist: Then you would say literally, the FCC can never tell any station that it may not put out any particular method.

Mr. Plotkin: I say that they cannot tell a radio or television station that they cannot suppress whether a radio or television station can do any more than they can.

Unknown Speaker: Like an ad?

Mr. Plotkin: I think now that ads have a certain amount of the number of First Amendment protection, I think radio and television ads would have the same protection as newspaper ads.

Unknown Speaker: I am not talking about 326?

Mr. Plotkin: I think because of 326 and probably because of the First Amendment.

Unknown Speaker: Do they not have to reach that, if you are right under 326?

Mr. Plotkin: Mr. Justice Tamm(ph) and the court below did not reach a constitution.

He reached 326.

I think it can be decided on 326.

I think 326 has First Amendment overtones, but I do not think it is necessary to do it because Congress has said that so far as the commission is concerned, when it comes to the area of suppression, they cannot suppress any more than any other medium can be suppressed.

Justice William H. Rehnquist: Supposing under your definition of censorship that a station just decided that, for an hour, it would put on a record consisting of one four-letter word, repeated over and over again for the hour.

No one would make any claim that it had any coherent method, if the person's (Inaudible) simply liked it that way.

Under your definition, would the FCC be powerless because of the censorship statute?

Mr. Plotkin: I think they will be powerless to tell them to stop doing it.

I would have the same problem.

In response to your hypothetical question, if a station did nothing but played the music round and round all day, it is not because of the content but because a station is required to operate in the public interest and if they -- one of the doctrines that the commission have announced in the past, that if you do not have a well-rounded program and if you devote too much of your programming to one aspect and neglect other parts of your programming, you are not operating in the public interest but not because particular words are banned, not because particular words have a taboo.

Here, the commission is saying that just because you use these seven words, no matter in what context, if you put on a forum, where people came in and discussed a live subject and a controversial issue and if some of the people came from the time or culture that use these kind of words are part of their discussion, particularly an anger and heat, the commission would say that if you did that during the afternoon that this would be a violation of the Criminal Code so far as the commission can see it and would also be ground for revoking a license.

I do not think the commission has that authority.

Unknown Speaker: Can you justify the co-existence of 1464 and 326?

Mr. Plotkin: Yes, to the same extent that I can justify the co-existence of 1461 and the First Amendment.

If it is given the same interpretation, this court has held that 1464 is no different than 1461.

If it is constitutional for a statute to say that obscene materials cannot be printed in the newspape

Unknown Speaker: I am not speaking of the constitution.

I am speaking just on the statute because you have taken the position just now that 326 was the Anti-Censorship statute meant what it said.

Mr. Plotkin: Yes.

Unknown Speaker: What posture then is left to 1464?

Mr. Plotkin: I think 326 has to be read in the same light as the First Amendment that says no censorship of the material is constitutionally protected.

I do not think that the commission, by 326, has less power than the government does, say, against the newspaper, if they have obscene material and if you can prevent obscene material under 1461.

Chief Justice Warren E. Burger: We will resume there at 10 o' clock in the morning.

We will resume arguments in Federal Communications Commission against Pacifica Foundation.

Mr. Claiborne, you may proceed whenever you are ready.

Argument of Louis F. Claiborne

Mr. Claiborne: Mr. Chief Justice and May it please the court.

Perhaps, it is best appropriate if I state as accurately as I can, the government’s position in this case.

Justice William J. Brennan: The government or the Department of Justice?

Mr. Claiborne: The position of the United States Department of Justice, Justice Brennan.

Justice William J. Brennan: For whom was the FCC speaking?

Mr. Claiborne: The FCC was speaking for itself.

Justice William J. Brennan: Is it not a part of the government of the United States?

Mr. Claiborne: I meant the executive branch of the government of the United States, Mr. Justice Brennan.

Justice William H. Rehnquist: Mr. Claiborne, what business is it of the executive branch of the United States to take a position in a case like this, once the petition for certiorari is granted to review an unfavorable decision to the government of the Court of Appeals for the District of Columbia Circuit and this court is going to consider it on the merit.

What interest does the government as an institutional litigator have in wanting a narrow construction of a statute enacted by Congress?

Mr. Claiborne: Mr. Justice Rehnquist, of course, the United States is a statutory separate party and is, therefore, a respondent in this court.

In this particular case, the United States or the Department of Justice has a separate interest because it has an independent responsibility to enforce this statute quite separate from the commission’s responsibility to enforce the same statute in its regulatory field.

It is, therefore, appropriate, it seems to us, for the United States to speak the views of the Department of Justice in this case, since it must be bound by the decision of this court in this case.

Justice William H. Rehnquist: If this court upholds the FCC, the government will have no problem prosecuting cases under the statute because it will be given a fairly broad construction, I would take it.

Mr. Claiborne: Mr. Justice Rehnquist, the government, that is the Solicitor General and the Department of Justice, take the view that they should not press for broader prosecutorial discretion than in their view the constitutional reach of the statute would authorize.

Accordingly, it seems to us that the court order had the benefit that views the Department of Justice as the constitutional reach of the statute.

Justice William H. Rehnquist: Do you think the government is ever entitled as an institutional litigator to the Solicitor General to assert that an act of Congress is unconstitutional?

Mr. Claiborne: Mr. Justice Rehnquist, there may be rare occasions when that is so.

This is not such an occasion.

We do not suggest that the statute is unconstitutional.

We suggest that it has a limited application and that the commission has construed it beyond that constitutional reach.

Justice Byron R. White: Can you say United States is a statutory party?

Mr. Claiborne: Indeed, Mr. Justice White.

I have cited in the brief the provisions of both the Communications Act and the Judicial Code which make that clear.

Perhaps the clearest provision is that in the Judicial Code and one finds it in the Section 2342 first tells us in paragraph 1, there that all final orders of a Federal Communications Commission maybe viewable by Section 402a of Title 47 or covered by the following section.

This is such an order issued by the commission under Section 402 of its statute.

When we then turn to Section 2344, we note that an action brought in the Court of Appeals to review such an order is to be an action against the United States.

It further provides at the end of that provision that the clerk shall serve a true copy of the petition on the agency and on the Attorney General.

When we return to Section 2348 of Title 28, we note that the Attorney General is responsible for and has control of the interest of the government in all court proceedings under this chapter.

The agency and any party in interest may appear, I am skipping words, as parties thereto of their own motion and as of right.

It is the primary responsibility of the Attorney General but independent right of the agency to be represented.

Hence, here, the commission though not joined by the Solicitor General was authorized to file petition for certiorari.

Chief Justice Warren E. Burger: Mr. Claiborne, has it occurred to you that there may be a difference between relationship with the Department of Justice to, let us say, the Secretary of Defense or Cabinet Officer and the relationship what is thought of as an independent regulatory agency which is not subject to the same way surely to the direction of the executive branch?

Mr. Claiborne: Mr. Chief Justice, that would certainly apply with greater force in those circumstances where the agency was not free to represent itself before this court and where, therefore, the Solicitor General would feel a greater inclination to support the independent commission’s view which could otherwise not be presented to the court.

When the agency has an independent right to appear here, that consideration is perhaps lessened.

This, however, is an unusual case and that the Department of Justice has a quite separate responsibility, and of the statute and, therefore, cannot be bound or overly influenced by the views of the commission as it applies the statute in a different field.

Indeed, when this court decided the ABC case in 347 of the United States Reports, the court relied on the construction of that anti-lottery statute in the Communications Act.

It relied on the construction placed on that statute by the Attorney General and said it cannot have one meaning for the commission and another for the Department of Justice.

We noticed that the Department of Justice did not view these programs as violating that statute.

We are influenced by that in holding that the commission has as a step blind.

Justice Thurgood Marshall: There is a difference where the commission has authority by statute to come in like the ICC.

Mr. Claiborne: Indeed, the Federal Communications Commission, under the Hobbs Act, in this sort of case.

Justice Thurgood Marshall: It has the same right as the ICC?

Mr. Claiborne: It has the same independent right and in indeed its petition, which this court granted, was not joined by the Solicitor General.

Justice Thurgood Marshall: There are instances where the ICC and the Solicitor General have been direct odd in this court.

Mr. Claiborne: Indeed, Mr. Justice Marshall and there have been instances in which the Federal Maritime Commission and the United States have been in odds.

In the most recent such case, the court upheld the views of the United States rather than those of the Federal Maritime Commission.

Justice Thurgood Marshall: I did not mean that that is a nice way of doing business or running a railroad.

Mr. Claiborne: Mr. Justice Marshall, of course, it is to be avoided if possible and we, as the court knows, have joined the commission in some of its submissions before this court.

We part company at a certain point.

Chief Justice Warren E. Burger: Apart from these background procedural matters, Mr. Claiborne, I understand the station that is involved here is part of a public radio system.

Mr. Claiborne: Yes, Mr. Chief Justice.

It is--

Chief Justice Warren E. Burger: Supported by the Congress.

Funds appropriated by congress?

Mr. Claiborne: Mr. Chief Justice, I do not know whether federal funds are involved but, certainly, it uses public airways.

It is licensed by the Federal Communications Commission.

It is, in every respect, like a commercial radio station except only that it is owned and operated by a non-profit corporation.

Chief Justice Warren E. Burger: And it does not take commercial advertising.

Mr. Claiborne: It does not take commercial advertising and, of course, is not governed by the profit motive and, for that reason, may not be censored as it were by our public tastes to the same extent to the commercial station.

Chief Justice Warren E. Burger: May not be?

Mr. Claiborne: It may not be influenced by the reaction of a commercial public who might view such a material, as is involved in this case, as distasteful.

Accordingly, sponsors would not sponsor it and the station would not air it.

That consideration does not apply with respect to a broadcaster like Pacifica.

Justice Lewis F. Powell: Mr. Claiborne, the department supported the commission below it, did it not?

Mr. Claiborne: Mr. Justice Powell, that is true and that is an embarrassment to us.

It is right to say that the matter was handled there by the Anti-Trust Division rather than the Criminal Division when the matter came on for consideration of a petition for certiorari and that it was entered with a criminal position.

An interview shared by the Solicitor General was that the judgment below was correct and that the review of it ought not to be sought and, accordingly, we did not petition.

We did not oppose a petition.

But, when the court took the case, we deemed it our duty to give this court the benefit of doubt.

Chief Justice Warren E. Burger: Mr. Claiborne, the collateral inquiries have taken some of your time.

We will enlarge your time five minutes.

Justice Byron R. White: Mr. Claiborne, so I will not feel embarrassed by asking you another collateral question.

Do you think Section 2348 is limited to the agencies listed in 2342?

Mr. Claiborne: I think that is so.

Justice Byron R. White: Because it is right under this chapter?

What about the National Labor Relations Board?

Mr. Claiborne: My understanding, Mr. Justice White, is that the National Labor Relations Board does not have independent authority.

Justice Byron R. White: How did it get into the Court of Appeals?

How did the Court of Appeals get authority to review it even if it is not under this chapter?

I think that it is not but --

Mr. Claiborne: They must be and I do not have at hand the provision in the Labor Relations Law.

Justice Byron R. White: It is an enforcement proceeding, of course.

It is different technically from the reviewing judgment.

It was an enforcement proceeding under the Labor Act.

Mr. Claiborne: But I think it is clear, Mr. Justice White, that when it comes to proceedings in this court, a petition for certiorari or otherwise the Labor Board does not have independent authority to represent itself.

Unknown Speaker: Only the agencies in 2342 since 1966 had this authority.

Mr. Claiborne: In addition, the ICC.

Unknown Speaker: Well, it in not.

Mr. Claiborne: Yes, the Federal Maritime Commission.

Unknown Speaker: The Federal Atomic Energy Commission, the Interstate Commerce Commission, the Secretary of Agriculture, the Federal Communications Commission.

Those agencies, I think those are the only ones.

Mr. Claiborne: I think those are the only ones which have independent authority to appear on their own in this court.

Unknown Speaker: That has only been true since 1966, except for the ICC?

Mr. Claiborne: That maybe so, Mr. Justice Black.

I do not go back any further.

Unknown Speaker: Thank you.

Unknown Speaker: I am sorry to take one minute of your time.

Mr. Claiborne: In what time remains, it is perhaps useful to say that our position is simply this.

That we construe Section 1464, the only statute which we view that is involved in this case, as one that cannot consistently with the First Amendment be applied so as to ban absolutely for any substantial period of time the airing of particular words on radio or television wholly without regard to circumstances or to context.

That is the limits of our position.

Justice Lewis F. Powell: I am sorry to keep interrupting, but I noticed those words in the caveat at the end of your brief and I wonder really whether you think that is a fair characterization of the commission or its present position.

The commission denies it heartily in its reply brief.

Judge Leventhal did not think that was a fair characterization.

Is it necessary to construe what the commission actually held so sweepingly?

Mr. Claiborne: Mr. Justice Powell, I fear it is.

Judge Leventhal sought to save the commission’s order by narrowing it and the commission rides these coattails.

But, the order which is before the court and of their counsel’s representation of it is very clear that the calling dialog was not judged except only in so far as it contained certain words.

Those words, regardless of how they were spoken, or the manner in which they were spoken regardless of the surrounding words was adjudged by the commission to be indecent language.

The definition of indecent language which the commission gave was clearly one which did not have any relation to the context.

They ruled that indecent language can in no circumstances, except perhaps after 10 o' clock in the evening, be redeemed by the context.

Accordingly, we see no option but to say the commission, and to this extent they are to be commended on their clarity in the order, have said straightforwardly these words “in no circumstances when children maybe in the audience, and so far as we can determine that is all the time, may be aired.”

They did not look to the monologue to see whether in that context things might be different.

They said “these words recur in that monologue.

They are indecent by our definition.

Accordingly, that may not be done again.”

Chief Justice Warren E. Burger: Mr. Claiborne, assume that this station’s license came up for renewal or that of a commercial station with exactly this record of a broadcast, precisely this and a coalition of churches, civic associations, parent-teacher organizations intervened under the United Church of Christ intervention procedure.

Would you think on this record, if the commission refuses to renew the license that on that ground and solely upon the ground of this broadcast is being antagonistic to the public interest that that should be sustained by a court?

Mr. Claiborne: Mr. Chief Justice, I have some difficulty with the question because the question falls beyond the boundaries of Section 1464.

I take your question, Mr. Chief Justice, to suggest that perhaps under a public interest standard the commission has some discretion in renewal proceedings and perhaps in --.

Chief Justice Warren E. Burger: These are very broad discussions, do they not?

Mr. Claiborne: I would have submitted, though it is perhaps beyond the responsibility of the Department of Justice to speak to this, but I would have submitted that the commission may take into account whether the station has devoted a very substantial portion of its programming to a kind of material that did not appeal to a substantial part of its audience.

Accordingly, it was not in the public interest to renew that license when other applicants who served more what the general public wanted was there waiting to take the spot.

But, I would not think it permissible for the commission to focus on an isolated instance of broadcasting this monologue and say that bad mark will justify revoking your license when renewal time comes.

Chief Justice Warren E. Burger: But if they did it once a week for 10 weeks?

Mr. Claiborne: Mr. Chief Justice, I do not know where the line is drawn, but I do recognize that the commission must judge between applicants and must be concerned that the station to whom it has granted license does effectively serve the public interest and that must mean serving what most of the public within its reach prefer.

It does not, however, in my submission, allow the commission through the back door to censor particular programs by saying “we cannot forbid it but we can take it into account when we renew your license.”

That would overstep the balance of Section 326.

Chief Justice Warren E. Burger: Is the position of the Department of Justice that under Section 1464 anything goes?

Mr. Claiborne: Mr. Chief Justice, no.

As we have tried to explain in the last portion of our brief indicated that in our view, first, if these very words are used in a way which though not really fighting words because the confrontation is not face-to-face, nonetheless, they are used in a hostile manner so as to insult the audience generally or anyone in particular.

They may be reached under the Chaplinsky analysis.

We go further --

Justice Potter Stewart: This would not include anyone or more of the words used in a hostile manner by a fictional character assaulting another fictional character?

Mr. Claiborne: Indeed, Mr. Justice Stewart.

To that extent, we say it must be judged in a context.

It depends on the circumstances.

Even fighting words properly so defined, it cannot be judged as words, factious to racketeering Chaplinsky itself on a ban.

It is simply that when they are used face-to-face to an individual without the disarming smile, they are likely to provoke a breach of the piece and, accordingly, may be banned as fighting words.

Here, we go further and we say, and we are concerned here primarily about citizens banning radio, if someone ill-advised attempted to jam the airwaves by the use of four-letter words strung indefinitely, we say that sort of spewing force of indecent language with no conceivable revealing purpose could be reached by Section 1464 and the indecency provision of it because it would not qualify as obscenity since it did not appeal to public interest;

And it is for that reason that we think --

Chief Justice Warren E. Burger: You left out one part of the statute, have you not?

Indecent?

Mr. Claiborne: Mr. Chief Justice, I meant to say that that would be reached under the indecency portion of the statute and it is for that reason that we think it is important to save something of the separate, as we view it, indecency prohibition statute quite separate from the obscenity prohibition which, of course, survives under the Miller case.

Justice Lewis F. Powell: Mr. Claiborne, in view of a standard that you propose on the next to the last page of your brief, in the light of that standard, what would the Department’s position be with respect to this bad program if these 11 minutes were put on the air at, say, 8 o'clock to 9 o' clock on Saturday morning which is the prime time for small children?

Mr. Claiborne: Mr. Justice Powell, if it could be shown, I do not know but it could, that that was a time peculiarly devoted to children’s programming and that the particular program in which it was included was one aimed specifically at children, we would as we say in our brief view that as reachable.

Justice Lewis F. Powell: Was that the aim of Constituion (Inaudible) in the case?

Mr. Claiborne: No, Mr. Justice Powell, I think we say in the very last paragraph of our brief that quite independently of that, any radio broadcast specifically directed at younger children regardless of the hour might at least we think tentatively be reached under the statute.

There are definitional problems about what a program aims specifically at children would be.

There, we would see seek the help of the commission in defining our children’s program.

Justice John Paul Stevens: Mr. Claiborne, just to follow up on Justice Powell’s question, your conclusion of course is quite tentative in the last paragraph as I read it.

Do I correctly understand that if we were to adapt Judge Leventhal’s view and say that all that is before us are these words as broadcast using his limitation and we only pass on that, is it the department’s view that there will not be constitutional power in the commission to prohibit this specific broadcast in this specific time in context?

Mr. Claiborne: Mr. Justice Stevens, that would be our conclusion.

We have not addressed particularly what arguable redeeming value there is in the calling monologue because it seemed to us that the commission’s order does not address it.

But, we would point out that that was clearly not a children’s program.

Justice William H. Rehnquist: Even under its general authority that it relied on as an alternative ground to the statutory ground, you would still say that there is not constitutional power in answer to Justice Stevens’ question?

Mr. Claiborne: First, Mr. Justice Rehnquist, I would say there was not statutory power because of the anti-censorship provision in Section 326.

Justice William H. Rehnquist: Right but, as I understand the commission’s order also relied upon its general authority such as it was outside of the statute.

Mr. Claiborne: That is certainly so, Mr. Justice Rehnquist.

We would say that the only exception to the anti-censorship provision with respect to banning a particular program is, what was originally the second sentence of that same section, that is, Section 1424 as it now is.

Therefore, anything that is reached under 1464 can be viewed as an exception to the anti-censorship provision.

But, the public interest provisions do not, in our view, allow the commission to violate the anti-censorship provision except only in the sense that if programming is devoted to material that does not serve the public interest to such a degree, that may be taken into account at renewal time but not a ban.

I have exhausted my time.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Marino?

Rebuttal of Joseph A. Marino

Mr. Marino: Just two small points, Your Honor.

May it please the court.

Yesterday in his argument, Mr. Plotkin and this morning in his argument, Mr. Claiborne keep referring to the commission’s order as banning or suppressing.

We thought the commission’s order makes it very clear that it was not banning.

It was not adapting a flat ban.

It was trying to channel this material to periods when there would not be a reasonable risk that children would be exposed to it.

Justice Thurgood Marshall: What was it, a suggestion?

It was not an order banning it.

It was not a fine.

Mr. Marino: No, it was declaratory order.

Justice Thurgood Marshall: It was no more than a declaratory order.

Mr. Marino: Absolutely, Your Honor.

The suggestion that the Chief Justice made in his analogy, a citizen came into the commission and said “these words have been broadcast.

Take the station’s license entirely away from him because they have abused public airwaves.”

The commission thought that that would not be fair to even put him in hearing.

Justice Thurgood Marshall: They also thought they will be violating the censor statute too, did they not, if they did that?

Mr. Marino: 326, Your Honor, was written in the Communications Act.

It has two limitations on it.

Number one, the commission cannot censor.

This section was written in 1927 and at a time when everybody had --.

Justice Thurgood Marshall: Did you not consider that when you were granting this order?

Mr. Marino: We did.

Justice Thurgood Marshall: You were aware?

Mr. Marino: Yes, Your Honor.

We are certainly aware of 326.

We are also aware of the language that Mr. Justice White put in the Red Lion case about the commission suppressing or preventing people from broadcasting what they want to broadcast.

We are aware of 326.

We are aware that we are not in a position, for example, of a Motion Picture Censoring Board which can say to a film distributer “bring in your product so we can look at it, but we cannot censor.”

We cannot interfere with the right of free speech by means of radio communication because that is also included in 326.

But, we would add that when Congress wrote 326, it quickly added at the end of it that it will be unlawful to use any obscene, indecent, or profane language by means of radio communication.

That was written in by the same people who wrote the section in 1927.

So, when we approach these cases, we have Congress’ indication in 326 itself, that we should concern ourselves.

We not only have that indication in 326.

We have it in at least three other sections that we were supposed to be concerned and enforced to the limited extent that we can using our regulatory powers -- I want to respond again, if I can, to Justice Stevens’ question yesterday.

This declaratory order, Your Honor, was aimed only at broadcasting which is a medium and when we say broadcasting, and I think everybody recognizes, we are talking about television, AM, and FM radio.

It did not address the question of CB which would, as a different medium, raises different problems.

So, the declaratory order was aimed only to broadcasting.

I think there is no doubt about that in the order.

Unknown Speaker: I understand that.

May I go back to your question of your statement about censorship in Section 326?

Is it the commission’s position that if the commission regards something as indecent, profane, or obscene in its expert judgment and it concludes that it fits within that category, then it is entirely outside the prohibition against censorship?

Mr. Marino: I do not think so.

First of all, let me back up and say it is not if the commission regards it that way, Your Honor.

Unknown Speaker: Excuse Me.

Go ahead, finish up.

Mr. Marino: What I wanted to say is that it is very clear from the very beginning of radio communications law that it is really a question that turns on the community in which the station is located.

If those words are found to be patently offensive by contemporary community standards in that community.

Unknown Speaker: You give us the easy case.

If it is unprotected speech, surely, it can be prohibited.

But, I am talking about the tough case where something is indecent and yet the person may be protected from criminal prosecution for uttering some swear words or something like that.

But, if it is in the indecent category, you are saying it is outside of the non-censorship category.

How do you mention it in censorship?

Mr. Marino: By censorship, I think 326 takes the classical censorship which was prior restraint.

A Motion Picture Censoring Board and let us bear in mind that the section was written in 1927.

There had been very few Supreme Court cases and everybody’s concepts of what the First Amendment meant were the Black-stonian concepts that, first of all, the First Amendment means that you cannot censor.

Subsequently, this court had said that in a limited category Motion Picture Censoring Board may censor.

We know that we cannot censor.

The problem is that broadcasters have additional responsibilities.

Broadcasters have to broadcast in the public interest.

I think that is the other side of the equation.

Justice Thurgood Marshall: What is this community that you keep mentioning?

All I have heard argued here today is one protest by one man with one son.

Am I right?

Mr. Marino: We only received one complaint, Your Honor.

That is correct.

Justice Thurgood Marshall: Where do you get community action out of one man?

He was a man, was he not?

Mr. Marino: I am sorry, Your Honor?

Justice Thurgood Marshall: He did not speak for the community, did he?

Mr. Marino: He certainly did, Your Honor.

He came in on a representative capacity, we think.

Justice Thurgood Marshall: What made you think that?

You only got one.

Do you need the community’s standing to win your case?

That is what I want to know.

Mr. Marino: One citizen can raise a legitimate public interest question.

Justice Thurgood Marshall: Yes, but that one citizen does not give him the right to say he speaks for the community, does it?

Mr. Marino: Especially in these informal complaint cases, Your Honor, we have loosened the standards to such an extent that we will entertain complaints from one citizen on behalf of this community.

We have learned our lesson on the matter.

He purports to state for his community to the extent that he raises a public interest question as oppose to some other question.

Justice Thurgood Marshall: Am I correct that if nobody had protested you would not have taken it?

Mr. Marino: We would not have known about it, Your Honor, because we just do not have the funds or we do not have even instructions to monitor so we would not have never known about it except the citizen bringing this to our attention.

Chief Justice Warren E. Burger: I suppose, one citizen can call the attention of the Police Department or the Fire Department to a nuisance and that triggers the procedures.

Is that your suggestion?

Mr. Marino: That is the theory and, Mr. Justice White’s opinion in the New York v. California Company case.

Justice Thurgood Marshall: It was not a fire.

Mr. Marino: No, Your Honor.

Justice Thurgood Marshall: Was it not?

Mr. Marino: No, it was not, Your Honor.

But, it gave the commission an opportunity to give broadcasters some guidance and it did it in a context of a concrete factual situation.

I want to once again stress, and I do not understand why the United States feels that they have to expand the commission’s order to reach constitutional questions when it could have been read very narrowly as it was by Judge Leventhal and as it was by the commissioners who instructed it to come and seek certiorari before this court on the basis of Judge Leventhal’s opinion, knowing that we were going to rely on that opinion.

Justice Potter Stewart: As I understand it, the Solicitor General has taken the position that this particular broadcast was protected by the constitution.

I thought that was the answer in response to the question by my brother Stevens.

So even so limited, I think they would.

Mr. Marino: They were saying that it could not even be channeled.

I think when it comes down --

Justice Potter Stewart: Do you understand their position differently?

Mr. Marino: They still would say that you will channel that.

In response to Justice Powell, you channel it out of, let us say, Captain Kangaroo where you know it is going to get to children.

I can not believe that the children --

Justice Potter Stewart: That is right.

That is quite different from this broadcast.

Mr. Marino: What we are saying is that there is a reasonable risk of all this reaching children so if the question, which is under the public interest standard, which is the better channeling device?

Finally, in conclusion, Your Honor, if I may, I think we may have inadvertently slided the alternative theory that the commission used in its order.

It is contained at page 18 of the Joint Appendix and we would also rely on that and rest on that in submitting this case to you in asking you to reverse the judgment of the court below.

Chief Justice Warren E. Burger: Perhaps, if you know, could you clarify what I put in the question to Mr. Claiborne?

Is this station, itself, supported by appropriated funds, appropriated by the congress or is it public subscription?

Mr. Marino: It is a non-commercial educational station.

I know that going through their license filed, there is at least one indication that perhaps they were asking ATW for funds to improve their facilities.

But, I do not think it is the traditional educational or PVS, if that is the correct term, station which is purely educational.

I think they are non-commercial and they, therefore, qualify for educational frequencies.

But, I do not think they are government-supported station other than, perhaps, the subsidy from ATW if they got that.

Print this transcript Transcript: 

Argument of Speaker

Mr. Speaker: The judgment and opinion of the Court in No. 77-528, Federal Communications Commission against Pacifica Foundation will be announced by Mr. Justice Stevens.

Argument of Justice Stevens

Mr. Stevens: The ultimate question in this case is whether the Federal Communications Commission has any power to regulate a radio broadcast that is indecent but not obscene.

On a Tuesday afternoon in October of 1973, the respondent Pacifica Corporation, which operates a radio station in New York City broadcast a record of a monologue by George Carlin entitled "Filthy Words".

The broadcast was heard by a gentlemen riding in an automobile with his young son who wrote a letter of complaint to the Commission complaining this contains words that were improper for public broadcast.

The Commission ultimately decided that the broadcast was indecent because it contained words that referred to excretory and sexual activities or organs and that such words were indecent, and the Commission let the respondent know that although no sanctions will be imposed for this broadcast that the back of such broadcast had been made would be noted in its file and kept available for future reference in the event to similar broadcast were made in the future or at the time of question of license renewal came up.

The radio appealed to the Court of Appeals to the District of Columbia, which reversed in three different opinions.

The Court of Appeals in effect held that the announcement of the Commission was improper that it is too broadly condemned the indecent language.

The Commission asked the certiorari in this Court, and we granted certiorari to review the case.

There are four questions that the Court decide: The first is whether the case involve to review of the general rule or merely a determination that the particular broadcast has given in the afternoon to an audience which included large numbers to children as well as an adult audience could be regulated as indecent and the Court first hold that the focus is on the particular broadcast rather than a general rule.

Secondly, the Court considers whether the sections of the Communications Act which prohibits censorship prohibited the Commission from reviewing the matter and the Court holds that that provision, which was enacted as part of the same statute that prohibits the use of indecent profane or obscene language is not applicable to the subsequent review of program content such as this, and there is no dissent within the Court on that proposition.

The third question the Court considers is whether the broadcast is indecent within the meaning of the statute when it does not appeal to the prurient interest and therefore is not obscene, and on this issue, the Court holds by a majority of five-to-four that the broadcast was indecent within the meaning of the statute.

Justice Stewart has written a dissent in which Justice Brennan, Justice Marshall and Justice White have joined taking the position that the statute does not prohibit the broadcast.

Then the fourth issue is whether the First Amendment of the United States Constitution precludes the Commission from exercising any sort of censorship or regulatory power over in indecent broadcast of this kind.

On this issue the Court is also divided.

Five members of the Court hold that the First Amendment does not prohibit the exercise of this kind of power and therefore sustains the action of the Commission in asserting its regulatory jurisdiction over this kind of broadcast.

The opinion, which I have filed although joined by the majority on the first three issues; it is only joined by the Chief Justice and Justice Rehnquist on this issue.

Mr. Justice Powell has filed a concurring opinion joined by Mr. Justice Blackmun on this issue, and Mr. Justice Brennan has filed a dissenting opinion in which he notes that although they would not normally reach the constitutional issue that he feels the Court is so flagrantly wrong in this case that it should be discussed and he is joined by Mr. Justice Marshall.

Rebuttal of Speaker

Mr. Speaker: Thank you Mr. Justice Stevens.