FCC v. Pacifica and the Seven Dirty Words That Still Shape Broadcast Rules

Imagine the nine justices of the United States Supreme Court gathering to study, with straight faces and a transcript, a comedian's routine about the words you cannot say on the radio. Picture the clerks being asked to count them. Picture the opinion having to decide whether a list of seven words, which a comedian had turned into a joke about censorship, could be read aloud in an afternoon without bringing down the republic.

That is exactly what happened. The case is FCC v. Pacifica Foundation, decided July 3, 1978, and almost half a century later it still governs what can be broadcast into your living room. Conservatives are not of one mind about it. Some of us see it as the last wall protecting children from whatever the airwaves can carry. Others see a federal agency with a license power over speech, which ought to make any friend of the First Amendment break out in hives. I want to walk you through the facts, give both sides their best arguments, and then tell you where I come down.

What happened on October 30, 1973

On the afternoon of October 30, 1973, a New York radio station owned by the Pacifica Foundation, WBAI, broadcast a recording of the comedian George Carlin's monologue about words that, in his view, could not be said on the public airwaves. The broadcast was around two o'clock in the afternoon, and it was part of a programme about society's attitudes toward language. The station gave a warning before it aired that the material might offend some listeners.

A man who was driving with his young son heard it and complained to the Federal Communications Commission. The FCC did not fine the station, but it issued a declaratory order stating that the broadcast was indecent and that the order would go into the station's file, where it could count against the license at renewal. The commission relied on a federal statute, 18 U.S.C. § 1464, which prohibits uttering "any obscene, indecent, or profane language" by means of radio communication, and on the agency's general authority over broadcast licensing. The D.C. Circuit reversed. The Supreme Court took the case.

Note the legal shape of it. The words were not obscene in the technical sense that Miller v. California (1973) had defined, which required an appeal to prurient interest. They were, in the commission's view, indecent, a lower category that covers patently offensive references to sexual and excretory matters at times when children are likely to listen. The question was whether the government could regulate that category on the air.

What the Court held

By a vote of five to four, the Court said yes. Justice John Paul Stevens wrote the main opinion, though not every part of it commanded a majority. Justice Lewis Powell, joined by Justice Harry Blackmun, wrote a separate concurrence that supplied the decisive votes for the narrow result. The ruling had two pillars, and you ought to be able to name them.

1. Broadcast is uniquely pervasive. The Court observed that radio and television come into the home. A listener can tune in mid-programme, without warning, and a prior warning does not help a person who has just turned the dial. In the home, said the Court, the individual's right to be left alone weighs against the broadcaster.
2. Broadcast is uniquely accessible to children. Even those too young to read can switch on a radio and hear everything that comes out of it. The government has an interest in the well-being of children and in supporting parents' authority in their own homes.

A third idea, scarcity, runs through the broader law of broadcasting rather than through Pacifica itself. In Red Lion Broadcasting v. FCC (1969), the Court upheld a fairness rule on the theory that the spectrum is limited, so the government may allocate it and attach conditions to licences. That reasoning is often paired with Pacifica to explain why the First Amendment applies to broadcasters with less force than it does to a newspaper.

The Court was also careful to say how small the decision was. It did not hold that the words could never be broadcast. It said the context of the afternoon hour, with children likely to be in the audience, mattered, and that the commission might reach a different result at another time of day. That is where the idea of a late-night "safe harbor" comes from. The FCC's rule today treats the hours between ten at night and six in the morning as the period when indecent material may be aired, a line that the D.C. Circuit pressed on the agency in the 1990s.

The dissent that sounds like a free-speech brief

Four justices disagreed, and the dissent, written by Justice William Brennan, deserves a fair hearing, because it sounds like something a libertarian conservative would write. Brennan's complaint was that the Court was allowing the government to protect people from words that the listener could avoid by turning off the radio. He thought the majority was elevating the sensibilities of the most easily offended into a legal rule, and he worried about a precedent that licensed an agency to decide which speech was too coarse for the public square.

I will not pretend that dissent is wrong about the risk. A commission with a licensing power and a standard as slippery as "patently offensive" can do real damage to the freedom of the press, particularly in the hands of an administration of the other party. Every bureaucrat who ever had a form to stamp has believed that his stamp was for the public good.

How the rule evolved

The Pacifica line did not stay where it was drawn. The commission spent years enforcing it narrowly, going after the sustained, deliberate use of the words rather than the stray one. Then the agency changed its approach in the early 2000s and began treating even single, "fleeting" expletives as actionable. The occasions were live awards shows: a 2002 music awards broadcast on Fox and a 2003 Golden Globes broadcast on NBC were the best known.

The broadcasters fought back, and the result was FCC v. Fox Television Stations, which reached the Supreme Court twice. In 2009 the Court held, five to four, that the commission's change of policy was not arbitrary and capricious under administrative law, and it left the First Amendment question for later. Then in 2012, in a decision written by Justice Anthony Kennedy and joined by every participating justice, the Court held that the FCC had not given the networks fair notice that fleeting expletives and a brief nudity on a network drama would be punished, and so the policy was unconstitutionally vague as applied to those broadcasts. The justices specifically declined to reconsider Pacifica itself. They said, in effect, that the case was decided and that a narrower ground would do.

Notice what that history teaches. The Court has never overruled Pacifica, and it has never extended it either. It has sat on a narrow ledge for decades, and each time a broadcaster has asked the justices to knock the ledge out, they have found a narrower way to rule. That is a clue about how uncomfortable the question makes everyone.

Also notice what the Court said when it faced the Internet. In Reno v. ACLU (1997), the justices struck down the Communications Decency Act's indecency provisions for online speech, and they refused to carry the broadcast reasoning over. The Internet, they said, is not as invasive as the radio, and a user generally has to take affirmative steps to find content. So the rule is limited to the one medium where the Court found that the "pervasiveness" and "child access" rationales applied.

The case for keeping the rule

Here is the family-protection argument at its best, and I want it stated in words its defenders would sign.

1. Parents have a right to run their own homes, and the airwaves are an uninvited guest. When a child can switch on a set in the afternoon and find the adult world waiting, the parent's ability to supervise is undercut by the medium itself.
2. Broadcasters are licensed to serve the public interest. They accepted a franchise to use a public resource, the spectrum, and with it a duty to serve a general audience. The rule asks only that they behave in the hours when the audience includes children.
3. The rule is narrow. It governs one medium, in certain hours, with a safe harbor for adults at night. No adult is prevented from hearing anything, anywhere else.
4. Standards shape culture. A society that tolerates a certain floor of decency on the shared airwaves will have a different public square than one that does not, and conservatives are entitled to say that a shared public square with some norms is worth having.

That is a serious argument and I will not mock it. The folks who make it are mostly mothers and fathers who would like to leave the television on for twenty minutes without a flinch. They are right to want that.

The case for ending it

And here is the free-speech case, which has traditionally appealed to the other half of the movement.

1. The scarcity argument has gone stale. The spectrum was once a narrow set of channels, and a few stations stood between the public and the world. Today an American can stream, download, subscribe and search through more media in an hour than a person in 1978 could find in a year. If scarcity justified the rule, abundance should end it.
2. Pervasiveness is no longer special. The most pervasive medium in the home is now the phone in everyone's pocket, and the Constitution protects what comes out of it. A rule that burdens only the one that happens to be licensed seems arbitrary.
3. "Indecent" is a standard no one can apply consistently. The FCC has fined or excused material depending on context that is hard to predict, and the Court found in 2012 that broadcasters lacked fair notice. A rule vague enough to chill a network drama is a rule with a speech problem.
4. Licence power is leverage. A commission that can threaten a station's renewal can ask for much besides decency. Conservatives who have felt a regulator's displeasure, and anyone who remembers the arguments over the old Fairness Doctrine, know what a speech regulator can do when the mood changes. You can read about that history in Before Cable There Was Human Events, and Before That Almost Nothing and about modern government pressure on speech in NRA v. Vullo and the Unanimous Rule Against Government Jawboning.

Where I come down

I'll tell you where I stand, and I invite you to argue back.

I would keep a narrow rule, and I would take it away from the agency. The strongest part of the family case is also the narrowest: children in the afternoon, a broadcast signal, a sustained and deliberate use of language that nobody can claim to have encountered by accident. A statute passed by Congress, with a clear definition and a late-night safe harbor, can say that. It would be a rule the voters can see, and a rule the voters can repeal.

What I would not do is leave the matter to a five-member commission applying "patently offensive" case by case to a gaffe on live television. That is the part that has aged badly. A fleeting slip at an awards show is the exact kind of event that a fair rule should shrug at, and an unfair one will use to punish a network the party in power dislikes. The 2012 decision suggested that the Court shares the worry.

And I would retire the scarcity rationale from the story. It was always an uncomfortable fit for the freedom of the press, and today it is simply false. If the rule survives, it should survive on the home-and-children ground alone, which is the only ground that still stands up. Meanwhile, parents have tools that no generation before them had: filters, ratings, blockers, the off button. I would hand those tools to every family before I would ask a regulator to be the nanny.

If this sounds like splitting the difference, it is. But there is a principle underneath it: speech should be restricted rarely, narrowly, by elected legislators and for reasons you can say out loud.

Measured against the text

Let me bring in the Constitution, since it is the real referee. The First Amendment says Congress shall make no law "abridging the freedom of speech, or of the press." The text has no carve-out for the airwaves. The justification for treating broadcast differently is a judicial one, built across Red Lion and Pacifica, and it rests on facts about technology that the Founders never imagined.

That should make us cautious in both directions. We should be reluctant to expand a doctrine that sits uneasily beside the text. We should also be reluctant to throw out a rule that parents rely on without asking what replaces it. A conservative approach to the Constitution is humble about what judges can do and demands that elected officials do the heavy lifting, which is what the legislative version of this rule would accomplish. If you want to see how the Court has handled the harder cases of unpopular speech, start with Brandenburg v. Ohio Protected a Klansman's Speech, and It Protects Yours Too and Snyder v. Phelps and the Hardest Free Speech Case Conservatives Ever Defended, which show how seriously the justices take the principle that offensiveness alone is not a reason to punish speech.

What the coverage left out

One more jab, because I cannot help it. The coverage of these fights tends to tell you that the whole matter is about a few naughty words, and that anyone who cares is a prude. That is a framing trick. The actual dispute is about whether a government agency should hold a power over what an American can say in a mass medium, and about who gets to decide what a child hears at three in the afternoon. Neither of those questions is a joke, even when the occasion for them was.

A comedian's monologue became a precedent because the man who made it understood that the words were funny partly because they were forbidden, and the commission responded by proving his point. The government spent years, and a trip to the Supreme Court, to establish that the forbidden thing is forbidden. There is a lesson about bureaucracy in there somewhere, and I suspect Carlin would have found it funnier than the justices did.

The case in brief

1. FCC v. Pacifica (1978) let the government regulate indecent material on broadcast because of its pervasiveness in the home and its accessibility to children, in a narrow five-to-four ruling.
2. The scarcity rationale from Red Lion is an old cousin of the decision, and it no longer fits a world of abundant media.
3. In FCC v. Fox (2012) the Court struck the fleeting-expletive policy as applied for lack of fair notice, and still refused to overrule Pacifica.
4. Families have a real interest in the afternoon airwaves, and the speech cost of an agency's licence power is also real.
5. The best compromise is a narrow rule written by Congress, with a night-time safe harbor, rather than case-by-case judgement by a commission.

What you can do: look up 18 U.S.C. § 1464 and the FCC's public guidance on indecency, then write to your member of Congress saying whether you want the line drawn in a statute or left to the agency.