Federal Communications Commission v. Pacifica Foundation
Federal Communications Commission v. Pacifica Foundation (1978) is a legal case in which the U.S. Supreme Court upheld (5–4) the authority of the Federal Communications Commission (FCC) to regulate broadcast content that it considers indecent. The case was triggered by the airing of a humorous meditation on profanity, originally titled “Seven Words You Can Never Say on Television,” by the standup comedian George Carlin (1937–2008).
Carlin’s routine first appeared on his fourth album, Class Clown (1972), but it was the version on his 1973 album, Occupation: Foole, that gave rise to the legal case. In “Filthy Words,” Carlin says, “Okay, I was thinking one night about the words you couldn’t say on the public airwaves, the ones you definitely wouldn’t say, ever.” The words he goes on to list are s**t, piss, f**k, c**t, c********r, m**********r, and tits. The word f**k alone is used 32 times in the 12-minute recording. Often when Carlin performed this routine live, he joked at length about the arbitrariness of banning these words on broadcasts and in polite society.
In October 1973 the radio station WBAI in New York City aired “Filthy Words” during its afternoon show Lunch Pail. A Long Island resident, John Douglas, who was involved with a group called Morality in Media, heard the broadcast in his car and decided to write a letter of complaint to the FCC. “Obviously I’ve heard the words before,” he later explained, “but not at 1:15 in the afternoon on the radio.” He claimed in his letter that his “young son” had been in the car with him, although he later admitted that his son had been 15 years old at the time and that the two of them had been returning from a visit to Yale University, then a college prospect for his son.
WBAI’s corporate parent was the Pacifica Foundation, the oldest independent media network in the United States. The FCC asked Pacifica to comment on Douglas’s complaint. The foundation responded by noting that Carlin’s routine had been broadcast as part of a program dealing with public attitudes toward language and that listeners had been warned of “sensitive language which might be regarded as offensive to some.” Pacifica also claimed that “Carlin is not mouthing obscenities; he is merely using words to satirize as harmless and essentially silly our attitudes towards those words.”
The FCC’s prospective ban on the broadcast of offensive or indecent language to audiences likely to contain children had been overturned in 1977 by the U.S. Court of Appeals for the District of Columbia Circuit, which found that the commission’s “overbroad” prohibition amounted to an illegal and unconstitutional form of censorship.
Having granted the FCC’s petition for review, the Supreme Court heard oral arguments in the case in April 1978. In a 5–4 majority opinion written by Justice John Paul Stevens, the Court reversed the D.C. Circuit’s decision, ruling in part that the FCC’s ban did not constitute censorship under federal law and did not violate the right to freedom of speech guaranteed by the First Amendment. The Court also held that the stricter regulation of broadcast media is justified by their “uniquely pervasive presence in the lives of all Americans” and by their unique accessibility to children, “even those too young to read.” The decision is still in effect and remains foundational to the federal government’s authority to regulate broadcast material.
Following Carlin’s death in 2008 Jose R. Santiago, WBAI’s news director, told The New York Times that the affair remained “a source of pride” for the station. The Supreme Court’s decision, he said, was less about radio than it was about “the right to be human beings in the United States.”