FCC v. Pacifica Foundation: The Supreme Court and “Filthy Words”

It is seldom that the Justices use foul language in an opinion of the Supreme Court of the United States, except when the case at issue is about foul language. FCC v. Pacifica Foundation v. Fox Television Stations centered on fines levied against Fox and ABC for what the FCC deemed offensive content.

In its opinion, the Court concluded that the fines were unconstitutional under the Due Process clause. As explained by Justice Anthony Kennedy, “The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.”

The decision sidestepped broader constitutional issues, namely the legality of the FCC’s indecency regulations under the First Amendment and the continued relevance of FCC v. Pacifica Foundation. The landmark case first established the authority of the FCC to regulate indecent content.

The case centered on a 1973 radio broadcast of George Carlin’s “Filthy Words” routine. As the name suggests, Carlin’s comedy act described a number of “words you couldn’t say on the public airwaves.” A father who heard the broadcast while driving with his young son complained to the FCC.

The FCC found that certain words in the monologue depicted “sexual and excretory activities” in a particularly offensive manner, noting that they were broadcast in the early afternoon “when children are undoubtedly in the audience.” Although it did not impose formal sanctions, the FCC concluded that the language as broadcast was indecent and prohibited by 18 U.S.C. 1464 (1976 ed.), which forbids the use of “any obscene, indecent, or profane language by means of radio communications.”

The case ultimately made it to the Supreme Court, which was tasked with deciding whether the FCC had the authority to regulate a radio broadcast that was indecent but not obscene.

The Supreme Court’s Decision

The Supreme Court ultimately concluded that the FCC did have the power to regulate indecent content, focusing much of its opinion on the need to protect children from such content. The Court held that the FCC could use its regulatory power to “channel” indecent material to times when children are less likely to be exposed to it.

As the Court highlighted, indecent speech, unlike obscene speech, is protected by the First Amendment. Therefore, in order to regulate it, the government must have a compelling interest and use the least restrictive means to further that interest. Despite the high level of scrutiny afforded to issues of free speech, the Court emphasized that broadcasting has traditionally received the most limited First Amendment protection in terms of communication platforms.

To explain the distinction, the Court pointed to the pervasiveness of broadcasting and the potential exposure to children. As the Court explained, “The broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.”

The Court further highlighted that questionable content can be easily accessed by children, despite parents’ best efforts to shield them from it. It noted, “Broadcasting is uniquely accessible to children, even those too young to read. Although Cohen’s written message might have been incomprehensible to a first grader, Pacifica’s broadcast could have enlarged a child’s vocabulary in an instant.”

Given these concerns, the Supreme Court concluded that the FCC was justified in regulating indecent content.