556 F.2d 9 (D.C. Cir. 1977), 75-1391, Pacifica Foundation v. F. C. C.

Docket Nº:75-1391.
Citation:556 F.2d 9
Party Name:PACIFICA FOUNDATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
Case Date:March 16, 1977
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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556 F.2d 9 (D.C. Cir. 1977)

PACIFICA FOUNDATION, Petitioner,

v.

FEDERAL COMMUNICATIONS COMMISSION and United States of

America, Respondents.

No. 75-1391.

United States Court of Appeals, District of Columbia Circuit

March 16, 1977

Argued March 30, 1976.

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Harry M. Plotkin, Washington, D. C., with whom Thomas Schattenfield, David F. Tillotson and Mary Candace Fowler, Washington, D. C., were on the brief for petitioner.

Joseph A. Marino, Counsel, F. C. C., Washington, D. C., with whom Ashton R. Hardy, Gen. Counsel, Raymond L. Strassburger and Richard J. Bodorff, Counsel, F. C. C. and Robert J. Wiggers, Atty., Dept. of Justice, Washington, D. C., were on the brief for respondents. Daniel M. Armstrong, Associate Gen. Counsel, F. C. C., Washington, D. C., also entered an appearance for respondents.

Henry Geller and Charles M. Firestone, filed a brief on behalf of the Committee for Open Media, San Francisco Chapter, as amicus curiae.

Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.

Opinion filed by TAMM, Circuit Judge.

Concurring opinion filed by BAZELON, Chief Judge.

Dissenting opinion filed by LEVENTHAL, Circuit Judge.

TAMM, Circuit Judge:

This appeal by Pacifica Foundation (Pacifica) challenges a Federal Communications Commission (FCC or Commission) ruling which purports to ban prospectively the broadcast, whenever children are in the audience, of language which depicts sexual or excretory activities and organs, specifically seven patently offensive words.

Without deciding the perplexing question of whether the FCC, because of the unique characteristics of radio and television, may prohibit non-obscene speech or speech that would otherwise be constitutionally protected, we find that the challenged ruling is overbroad and carries the FCC beyond protection of the public interest into the forbidden

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realm of censorship. For the reasons which follow, we reverse the Commission's order.

I. FACTUAL BACKGROUND

On the afternoon of October 30, 1973, Station WBAI, New York, New York (which is licensed to Pacifica), was conducting a general discussion of contemporary society's attitude toward language as part of its regular programming. The WBAI host played a segment from the album, "George Carlin, Occupation: Foole," Little David Records. Immediately prior to the broadcast of the Carlin monologue, listeners were advised that it included sensitive language which might be regarded as offensive to some. Those who might be offended were advised to change the station and return to WBAI in fifteen minutes. The monologue consisted of a comedy routine that was almost entirely devoted to the use of seven four-letter words depicting sexual or excretory organs and activities.

On December 3, 1973, the Commission received a complaint from a man in New York stating that, while driving in his car with his young son, he had heard the WBAI broadcast of the Carlin monologue. This was the only complaint lodged with either the FCC or WBAI concerning the Carlin broadcast.

The Commission determined that clarification of its definition of the term "indecent" was in order. As a result, in Pacifica Foundation, 56 F.C.C.2d 94 (1975) (hereinafter Order ), the Commission defined as indecent, 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 a reasonable risk that children may be in the audience. The Commission found that the seven four-letter words contained in the Carlin monologue depicted sexual or excretory organs and activities in patently offensive manner, judged by contemporary community standards for the broadcast medium, and accordingly, were indecent. The Commission prohibited them from being broadcast under the authority granted it by 18 U.S.C. § 1464 (1970). 1 As a further rationale for its decision, the Commission cited its statutory obligation to promote the larger and more effective use of radio in the public interest. 2

The underlying rationale of the Order can be traced to the Commission's view of broadcasting vis-a-vis other modes of communication and expression. According to the Commission, the broadcasting medium carries with it certain unique characteristics which distinguish it from other modes of communication and expression. In the Commission's view the most important characteristic of the broadcast medium is its intrusive nature. Unlike other modes of expression, the television or radio broadcast comes directly into the home without any significant affirmative activity on the part of the listener. See Eastern Educational Radio (WUHY-FM), 24 F.C.C.2d 408 (1970); Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S.App.D.C. 166, 515 F.2d 397 (1975). In the Order the FCC concluded this intrusive nature was a critical factor due to four important considerations: (1) children have access to radios and in some cases are unsupervised by parents; (2) radio receivers are in the home, a place where people's privacy interest is entitled to extra deference; (3) unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast; and (4) there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest. Order at 97.

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In light of these considerations the Commission felt that questions concerning the broadcast of patently offensive language should be dealt with in a public nuisance context. As a result the Commission determined that the principle of channeling 3 should be borrowed from nuisance law and applied to the broadcasting medium. Rather than prohibit the broadcast of indecent language altogether, the Commission sought to channel it to times of the day when it would offend the fewest number of listeners.

In hopes of avoiding the charge that the Order was overbroad, the Commission declared that the channeling was specifically intended to protect children from exposure 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 a reasonable risk that children may be in the audience. Order at 98.

Finally, the Commission did note that when the number of children in the audience is reduced to a minimum, a different standard might conceivably be used. In such an analysis the definition of indecent would remain the same, however, the Commission would also consider whether the material had serious literary, artistic, political or scientific value. Order at 100.

In concurring statements, Commissioners Reid and Quello felt the Order did not go far enough. Commissioner Reid believed indecent language was inappropriate for broadcast at any time. Commissioner Quello was in agreement, commenting that "garbage is garbage" and it should all be prohibited from the airwaves. Id. at 102, 103.

Appellant Pacifica argues that section 1464 is unconstitutionally vague unless the term indecent is subsumed by the term obscene as defined in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Pacifica contends that the Supreme Court, in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) and United States v. 12 200 Ft. Reels of Super 8mm Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), has made it clear that the term indecent, as used in federal criminal statutes, must be construed as referring to material involving the specific types of explicit conduct defined in Miller v. California, 4 supra, in order for the constitutionality of the statute employing the term to be sustained. Pacifica also cites numerous other federal and state court decisions which have invariably held that the term indecent, as used in criminal statutes, refers to material which appeals to prurient interest as distinguished from material which is merely coarse, rude, vulgar, profane or opprobrious. 5

Pacifica argues that the Carlin monologue is not obscene because it does not appeal to any prurient interest and because it has literary and political value. Therefore, Pacifica argues it is entitled to constitutional protection in light of Miller and Hamling, supra. Pacifica concludes that such constitutional protection means that these words may not be prohibited by section 1464. In addition, Pacifica contends that the non-obscene language used in the Carlin monologue does not come within the fighting words prohibition set forth in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).

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Finally, Pacifica contends that the FCC standard of indecency, as expressed in the Order, is overbroad as it does not assure that programs of serious literary, artistic, political or scientific value will be allowed to air. 6 The amicus brief in this appeal argues that the Order is too far-reaching and will have an especially harsh effect on the broadcast of literature depicting minority cultures. In addition, the amicus brief quotes studies, 7 which show that large numbers of children are in the broadcast audience until 1:30 a. m., as further evidence that the Order is overbroad.

One week prior to oral argument in this case the FCC released a memorandum and order seeking to clarify its earlier Order. The order of clarification 8 was in response to a petition filed by the Radio Television News Directors Association. In the clarification order, the Commission declared that it never intended to place an absolute prohibition on the broadcast of indecent language but only sought to channel it to times of the day when children would least...

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