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FCC v. Pacifica Foundation

Citation. 438 U.S. 726, 98 S. Ct. 3026, 57 L. Ed. 2d 1073, 1978 U.S. 135.
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Brief Fact Summary.

A satiric humorist named George Carlin (Carlin) recorded a 12-minute monologue entitled “Filthy Words” before a live audience in a California theatre. Carlin began by referring to his thoughts about the words that could not be said on the public airwaves. Then, Carlin proceeded to list those words and repeat them over and over again.

Synopsis of Rule of Law.

The concept of indecent is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is reasonable risk that children may be in the audience.


On October 30, 1973, at 2:00 p.m., a New York radio station, owned by the Respondent, Pacifica Foundation (Respondent) broadcast the “Filthy Words” monologue. A few weeks later, a man who stated that he heard the broadcast while driving with his young son, wrote a letter complaining to the Petitioner, the Federal Communications Commission (Petitioner). In response to the complaint, the Respondent explained that the monologue had been played during a program about contemporary society’s attitude toward language and that, immediately before its broadcast, listeners had been advised of the monologue’s language. The Petitioner, after characterizing the language as patently offensive, though not necessarily obscene, issued a declaratory order granting the complaint, but not imposing any formal sanctions. The Petitioner concluded that the language as broadcast was indecent and prohibited by 18 U.S.C. Section:1464, prohibiting the broadcast of obscene, indecent or profane language. The Unit
ed States Court of Appeals reversed.


Whether the Petitioner has any power to regulate a radio broadcast that is indecent but not obscene?


It is not necessary for the Petitioner to determine that a communication is obscene before it may exercise its regulatory power. The Petitioner can use its regulatory power to “channel” indecent material to times when children are not able, or much less likely, to receive it. As a result, the Petitioner’s action is sustained and the decision of the United States Court of Appeals is reversed.


An individual, in switching on a given radio station, makes a decision to take part in an ongoing public discourse. This action does not implicate the fundamental privacy interests that the court is concerned with.
Concurrence. The majority’s use of “channeling” will not be effective because it is not possible to physically separate an audience in today’s world of broadcast media.


The decision was based upon the same principles that are found within the law of nuisance. In the case before the Supreme Court of the United States (Supreme Court), the majority focused upon the prospect that children may be listening to the broadcast in question. Furthermore, the nature of radio is one in which the audience is constantly tuning in and out and prior warnings cannot adequately protect the listener. Since children could be forever harmed by merely being around when such a broadcast is made, the court found that the Petitioner could regulate the Respondent through “channeling” the indecent communication to a more appropriate time and place. The fact that the monologue was broadcast at 2:00 p.m. in the afternoon made it more susceptible to regulation by the Petitioner.

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