Case Study-Broadcasting Obscene, Indecent, or Profane Material: FCC v. Pacifica Foundation (1973)
In 1964, Supreme Court Justice Potter Stewart, when defining “obscenity,” said, “‘I shall not today attempt further to define the kinds of material I understand to be embraced . . . [b]ut I know it when I see it . . .’” (Silver, 2003, para. 3). The FCC v. Pacifica case helped form the basis of support for the “Action for Children’s Television v. FCC (39) [case], which was decided on June 30, 1995,” and in which “the FCC amended an earlier order to ‘provide that no licensee of a radio or television broadcast station shall broadcast on any day between 6 A.M. and 19 P.M. any material which is indecent’ (40)” (Demas, 1998, p. 39). In addition, Demas (1998) argues, “the FCC… has expanded and amended Pacifica to fit other situations on a continual basis since (42)… [and] it has been used as a precedent as recently as 1996” (p. 39), confirming that the FCC v. Pacifica Foundation case has impacted the broadcasting of obscene or indecent material far beyond its initial case. Obscene, indecent, or profane broadcasting material has been difficult to define throughout the years, and although many cases have appeared before the highest court in the land addressing this very issue over the past few decades, the Supreme Court case FCC v. Pacifica Foundation set an important precedent.
Prior to the early 1970s, the Federal Communications Commission’s regulation of broadcast media had always been based on spectrum scarcity, using the Communications Act of 1934. Although “U.S. Code 1464… prohibits ‘obscene, indecent or profane’ use of the airwaves,” in a case where WGLD radio station was fined $2000 for a broadcast deemed inappropriate, “the court based its decision on a finding of obscenity, not indecency (6). Obscenity, as defined by the Supreme Court in Miller v. California, must contain the element of ‘appeal[ing] to prurient interest’ (7). Thus, the FCC had a definition for obscenity but not
for indecent language” (Demas, 1998, p. 39). However, this was remedied in 1973 when a Pacifica network radio station in New York aired a recording of a monologue by George Carlin that was deemed inappropriate. Although no formal sanctions or penalties were imposed, the FCC subsequently filed a declaratory order against the station. Pacifica sued on the grounds that the FCC’s regulations against the station violated its First Amendment rights. The Supreme Court found in favor of the FCC saying that “‘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’” (Wallace, 1999, p. 32).
D.C. Circuit Court of Appeals Judge Patricia Wald suggests, “‘Pacifica was a quite narrow decision upholding only the ruling of the FCC sanctioning specific words in a specific context broadcast at a specific time of day’ (45)” (Demas, 1998, 39), but the Pacifica case set an important precedent, addressing two concerns: “the likelihood of children being in the radio audience [playing] a role in determining the nature of the content, and whether ‘patently offensive’ speech that is not obscene is not protected by the First Amendment because it is delivered via the ‘intrusive’ medium of radio.” As a result, despite strong opinions on both sides of the issue, today’s legal definition of “obscenity” - “whether the 'average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” (Silver, 2003, para. 16) - would not exist without the invaluable standard established by the Supreme Court case FCC v. Pacifica Foundation.
References
Demas, Jeff. (1998). Seven Dirty Words: Did They Help Define Indecency? Communications & the Law, 20(3), 39. Retrieved November 29, 2005, from Business Source Premier (EBSCO).
Silver, Judith. (2003). Movie Day at the Supreme Court or "I Know It When I See It": A History of the Definition of Obscenity. Retrieved November 29, 2005, from FindLaw for Corporate Counsel Web site: http://library.findlaw.com/2003/May/15/132747.html#edn1
Wallace, Jonathan D. (1999). Supreme Court’s Rulings Threaten Free Speech. USA Today Magazine, 127(2646), 32. Retrieved November 29, 2005, from Academic Search Premier (EBSCO).
Prior to the early 1970s, the Federal Communications Commission’s regulation of broadcast media had always been based on spectrum scarcity, using the Communications Act of 1934. Although “U.S. Code 1464… prohibits ‘obscene, indecent or profane’ use of the airwaves,” in a case where WGLD radio station was fined $2000 for a broadcast deemed inappropriate, “the court based its decision on a finding of obscenity, not indecency (6). Obscenity, as defined by the Supreme Court in Miller v. California, must contain the element of ‘appeal[ing] to prurient interest’ (7). Thus, the FCC had a definition for obscenity but not
for indecent language” (Demas, 1998, p. 39). However, this was remedied in 1973 when a Pacifica network radio station in New York aired a recording of a monologue by George Carlin that was deemed inappropriate. Although no formal sanctions or penalties were imposed, the FCC subsequently filed a declaratory order against the station. Pacifica sued on the grounds that the FCC’s regulations against the station violated its First Amendment rights. The Supreme Court found in favor of the FCC saying that “‘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’” (Wallace, 1999, p. 32).
D.C. Circuit Court of Appeals Judge Patricia Wald suggests, “‘Pacifica was a quite narrow decision upholding only the ruling of the FCC sanctioning specific words in a specific context broadcast at a specific time of day’ (45)” (Demas, 1998, 39), but the Pacifica case set an important precedent, addressing two concerns: “the likelihood of children being in the radio audience [playing] a role in determining the nature of the content, and whether ‘patently offensive’ speech that is not obscene is not protected by the First Amendment because it is delivered via the ‘intrusive’ medium of radio.” As a result, despite strong opinions on both sides of the issue, today’s legal definition of “obscenity” - “whether the 'average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” (Silver, 2003, para. 16) - would not exist without the invaluable standard established by the Supreme Court case FCC v. Pacifica Foundation.
References
Demas, Jeff. (1998). Seven Dirty Words: Did They Help Define Indecency? Communications & the Law, 20(3), 39. Retrieved November 29, 2005, from Business Source Premier (EBSCO).
Silver, Judith. (2003). Movie Day at the Supreme Court or "I Know It When I See It": A History of the Definition of Obscenity. Retrieved November 29, 2005, from FindLaw for Corporate Counsel Web site: http://library.findlaw.com/2003/May/15/132747.html#edn1
Wallace, Jonathan D. (1999). Supreme Court’s Rulings Threaten Free Speech. USA Today Magazine, 127(2646), 32. Retrieved November 29, 2005, from Academic Search Premier (EBSCO).