Why You Don't Hear Dirty Words on Radio or TV | FCC v. Pacifica Foundation

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In episode 18 of Supreme Court Briefs, a son doesn't like his teenage son hearing bad words on the radio, so takes action. George Carlin, meanwhile, remains perplexed.

Produced by Matt Beat. Music by Matt Beat (Electric Needle Room). All images found in public domain or used under fair use guidelines.

Check out cool primary sources here:
https://www.oyez.org/cases/1977/77-528

Other sources:
http://law2.umkc.edu/faculty/projects...

https://www.theatlantic.com/entertain...

https://www.casebriefs.com/blog/law/c...

https://constitutionallawreporter.com...

http://cbldf.org/about-us/case-files/...

New York City
October 30, 1973

A radio station, owned by Pacifica Foundation, broadcasts George Carlin’s “Filthy Words” monologue. You know, the one where he famously proclaimed the seven dirty words that tend to make society the most upset? Well, a man named John Douglas, who was driving his 15-year old son, happened to turn his car radio on during the broadcast. Needless to say, Douglas was upset. He wrote the Federal Communications Commission, or FCC (Eminem FCC won’t let me be) complaining that the station had played something not appropriate for his kid to hear.

The FCC found that certain words Carlin had said depicted “sexual and excretory (XCRUHTORY) activities” in an indecent way, and the radio station played it in the early afternoon “when children are undoubtedly in the audience.” The FCC wrote a scolding letter to Pacifica Foundation, saying essentially saying “shame on you!” They claimed Pacifica broke U.S. Code regarding obscene language on the radio. But Pacifica was like “we played it during an educational program about taboo language” and “we warned listeners before it aired about its indecency.”

Pacifica tried to get the FCC to reconsider, but the FCC wouldn’t budge. It’s important to note the FCC didn’t punish Pacifica or anything. Regardless, Pacifica appealed the FCC’s response to the Court of Appeals for D.C., arguing the FCC was unfairly censoring them. The Court of Appeals reversed the FCC’s action, agreeing that it WAS unfair censorship.

On October 7, 1977, the FCC appealed to the Supreme Court, and the Court agreed to hear arguments in April 1978. Early on, justices made the distinction between “indecent” and “obscene.” They argued they weren’t the same thing. I know, right? I had always thought they were. So the question became: Can the FCC regulate a radio broadcast that is indecent but not obscene? Indecent speech, after all, was protected by the First Amendment.

The Court decided yes. On July 3, 1978, the Court had announced it sided with the FCC. By a vote of 5 to 4, it was obviously a close one. The Court said Carlin’s routine was “indecent but not obscene,” arguing the FCC could censor it on the radio to protect children from offensive material and make sure unwanted speech doesn’t come into one’s home. The Court said the FCC could forbid indecent broadcasts during hours when children would likely be among the audience.
Justice John Paul Stevens wrote the opinion of the divided court, arguing the First Amendment didn’t protect Carlin’s routine on the radio. “We have long recognized that each medium of expression presents special First Amendment problems. And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection”
Federal Communications Commission v. Pacifica Foundation was the first time the Court reviewed the power of government to penalize bad language over the airwaves. It empowered the FCC, having a chilling effect on radio and television stations across the country. Critics say it just has justified unnecessary censorship.
George Carlin died in 2008, but today his legacy is huge. Many comedians cite Carlin as an influence and he’s one of the most beloved comedians of all time. What is not beloved is this court case, which ultimately is what banned Carlin’s “7 dirty words.” It remains one of the most controversial Supreme Court cases in American history.