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 constitutional Mae West was banned from

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 CityGeorge 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?