FCC v. Pacifica Foundation - Opinion Announcement

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.