Facts
- Pacifica Foundation owned WBAI, a New York City radio station.
- At about 2:00 p.m. on October 30, 1973, WBAI aired George Carlin’s 12-minute “Filthy Words” monologue, which repeatedly used graphic sexual and excretory terms.
- A listener driving with his young son heard the broadcast and complained to the FCC.
- WBAI responded that the program included a warning and was presented as part of a discussion about language and society.
- The FCC issued a declaratory order finding the broadcast “indecent” under 18 U.S.C. § 1464, directing that the ruling be placed in the station’s license file, and stating it could be considered in later licensing matters if further complaints arose.
- The FCC treated the issue as one of channeling: the broadcast occurred in the early afternoon when children were likely to be listening.
- The D.C. Circuit reversed, concluding the FCC’s action either amounted to forbidden censorship under 47 U.S.C. § 326 or exceeded § 1464 because the broadcast was not obscene.
- The Supreme Court granted certiorari.
Issues
- Whether 18 U.S.C. § 1464 authorizes the FCC to regulate broadcast language that is indecent but not legally obscene.
- Whether the FCC’s declaratory order violated the First Amendment or constituted censorship barred by 47 U.S.C. § 326.
Decision
- The Supreme Court reversed the D.C. Circuit and sustained the FCC’s action.
- The Court held that broadcasting receives less First Amendment protection than many other media due to its pervasive presence and unique accessibility to children.
- The Court accepted the FCC’s view that “indecent” in § 1464 reaches some nonobscene language that is patently offensive for the broadcast medium, particularly at times when children are likely in the audience.
- The Court treated the FCC’s approach as time-and-context regulation (channeling), not a total ban.
- The Court concluded the order did not violate § 326’s anti-censorship provision and did not offend the First Amendment on these facts.
- A controlling concurrence emphasized the narrowness of the holding, limited to this specific daytime broadcast.
Legal Principles
- Broadcast speech may be subject to greater content-based regulation than other media because it can intrude into the home and is readily accessible to children.
- Under 18 U.S.C. § 1464, the FCC may regulate “indecent” broadcast material that is not obscene, when the material is patently offensive for the broadcast medium and aired at times presenting a reasonable risk of child audience exposure.
- The FCC may use time-of-day restrictions to channel indecent material rather than prohibit it in all circumstances.
- FCC consideration of indecency findings in licensing administration, including maintaining a record relevant to future complaints, is not necessarily “censorship” prohibited by 47 U.S.C. § 326.
Conclusion
The Court upheld limited FCC authority to regulate indecent, nonobscene radio broadcasts, relying on the special characteristics of broadcasting and permitting channeling of patently offensive material away from times when children are likely to be listening.