438 U.S. 726 (1978)
In 1973, comedian George Carlin recorded a twelve-minute monologue titled "Filthy Words" before a live audience in a California theater.1 The recording consisted of Carlin discussing and repeating seven words he identified as ones that could not be said on public airwaves, delivered in a satirical manner that elicited laughter from the audience.2
On October 30, 1973, at approximately 2:00 p.m. on a Tuesday, radio station WBAI in New York, owned by respondent Pacifica Foundation, broadcast the monologue as part of a program examining contemporary society's attitudes toward language.3 Prior to the broadcast, the station warned listeners that the program contained sensitive language that might be offensive to some.4
A few weeks after the broadcast, a man who had heard the program while driving with his young son wrote a letter of complaint to the Federal Communications Commission.5 The complainant stated that, although he could perhaps understand the "record's being sold for private use, I certainly cannot understand the broadcast of same over the air that, supposedly, you control."6
The Commission forwarded the complaint to Pacifica for comment.7 In its response, Pacifica explained the context of the broadcast as a serious examination of language by a noted social satirist and noted that it had received no other complaints.8 On February 21, 1975, the Commission issued a declaratory order finding that the broadcast was indecent under 18 U.S.C. § 1464 and stating that the order would be placed in the station's license file for consideration in future proceedings.9
The United States Court of Appeals for the District of Columbia Circuit reversed the Commission's order.10 The Supreme Court granted the Commission's petition for a writ of certiorari to review the decision.11
Whether the scope of judicial review encompasses more than the Commission's determination that the monologue was indecent "as broadcast"?12
No. The Commission's action was an adjudication under 5 U.S.C. § 554(e) limited to the specific factual context of the Carlin monologue as broadcast at 2 p.m. on Tuesday October 30 1973 by WBAI.15 The order explicitly reserved questions concerning possible action in other contexts and did not purport to engage in formal rulemaking or the promulgation of regulations.16 The focus of review must therefore remain on the Commission's determination that the monologue was indecent as broadcast.17
The scope of judicial review is limited to the Commission's determination that the monologue was indecent as broadcast.18
Whether the Commission's order was a form of censorship forbidden by 47 U.S.C. § 326?19
Section 326 of the Communications Act does not limit the Commission's authority to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting under 18 U.S.C. § 1464.20 The anticensorship provision does not apply to review of completed broadcasts.21 It shares a common origin with the prohibition in 18 U.S.C. § 1464.22
No. The Commission's order was issued after the broadcast in response to a listener complaint.23 It merely placed the order in the station's license file for future consideration without imposing formal sanctions or editing any proposed content in advance.24 The history of the Radio Act of 1927 and its re-enactment in the Communications Act of 1934 confirms that Congress intended both the anticensorship language and the authority to sanction indecent broadcasts to have meaning.25
The Commission's order was not a form of censorship forbidden by 47 U.S.C. § 326.26
Related opinions on this issue
Joined by Justice Brennan, Justice White, And Justice Marshall
Justice Stewart dissented on statutory grounds.27 He argued that the term "indecent" should properly be read as meaning no more than "obscene. " Under that reading the statute authorizes sanctions only for obscene speech.28
The Commission's broader interpretation therefore exceeded its authority.29 He also concluded that the order was unconstitutionally vague because broadcasters cannot know in advance what material will be considered indecent.30
Whether the broadcast was indecent within the meaning of 18 U.S.C. § 1464?31
The words "obscene," "indecent," or "profane" in 18 U.S.C. § 1464 are written in the disjunctive and each has a separate meaning.32 Indecent refers to language that depicts sexual and excretory activities in a patently offensive manner when broadcast at a time when children are likely to be in the audience.33
Yes. The Commission identified words in the twelve-minute monologue that referred to excretory or sexual activities or organs.34 It determined that their repetitive deliberate use in an afternoon broadcast when children were likely in the audience was patently offensive.35 Pacifica did not dispute that the broadcast was patently offensive or that the words were repeated over and over.36 The normal definition of indecent refers to nonconformance with accepted standards of morality and does not require prurient appeal.37
The broadcast was indecent within the meaning of 18 U.S.C. § 1464.38
Related opinions on this issue
Joined by Justice Marshall
Justice Brennan dissented and would have construed "indecent" in 18 U.S.C. § 1464 to prohibit only obscene speech under Hamling v. United States.39 He concluded that the words used by Carlin are not obscene within the meaning of the Miller test because they do not appeal to the prurient interest.40 They are not patently offensive in the context in which they were used as the monologue was a serious discussion of the use of language in society and it was not erotic.41
The monologue therefore fell outside the statute's reach.42 Brennan further argued that the decision would have a chilling effect on free speech.
Whether the order violates the First Amendment of the United States Constitution?43
Broadcasting receives the most limited First Amendment protection because of its uniquely pervasive presence in American lives and its unique accessibility to children.44 A nuisance rationale permits the Commission to channel patently offensive indecent material to times when children are least likely to be exposed.45
No. The words of the Carlin monologue are speech within the First Amendment but the Commission's order rested on a nuisance rationale under which context is all important.46 The broadcast occurred at 2 p.m. when children were undoubtedly in the audience and the language was deliberately repeated over and over.47 The government's interest in the well-being of its youth and in supporting parents' claim to authority in their own household justified the limited sanction.48 The order did not prohibit the monologue at other times or in other contexts.49
The order does not violate the First Amendment of the United States Constitution.50
Related opinions on this issue
Joined by Justice Blackmun
Justice Powell concurred in the judgment.51 He emphasized that the Commission's order was a limited one.52 It did not ban the broadcast of the Carlin monologue.53
It merely held it indecent when broadcast at a time when children were likely to be in the audience.54 He stressed society's right to adopt more stringent controls on communicative materials available to youths and the difficulty of physically separating children from broadcast material.55 The unique characteristics of broadcasting combined with the interest in protecting children and the privacy of the home supported the Commission's action.56
Joined by Justice Marshall
Justice Brennan dissented and argued that the privacy interests of an individual who voluntarily admits radio communications into the home are not invaded in an essentially intolerable manner.57 He concluded that the presence of children in the listening audience does not justify preventing minors from gaining access to materials that are not obscene as to them.58 Where, as here, the government may not prevent the exposure of minors to the suppressed material, the principle of Butler applies a fortiori.59