Description of Important Facts

Subject: Law
Type: Critical Analysis Essay
Pages: 5
Word count: 1353
Topics: Justice, Law Enforcement

FCC v. Pacifica Foundation, 438 U.S. 726 (1978) or Federal Communications Commission v. Pacifica Foundation is considered as a landmark case decided by the United States Supreme court. The main reason behind it was the fact that it defines the extent of the power held by FCC or Federal Communications Commission over the indecent material in any broadcasting medium. Originally, the case started when, in New York City, a father complained to FCC that his son heard “Filthy Words”, a George Carlin routine over WBAI, a Pacifica Foundation FM radio station (Justia Law). Due to this, WBAI received censure in form of a letter of reprimand as it allegedly violated FCC regulations related to the prohibition of broadcasting indecent material through its radio station. In their letter, the FCC made two points and they were as follows,

According to FCC, the language of the program was “patently offensive (Parker)” though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to the law of nuisance, where the “law generally speaks to channelling behaviour, rather than actually prohibiting it (Parker).” 

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The second point as per FCC was the fact that some words in this monologue depicted excretory and sexual activity in an offensive manner. This issue was enhanced by the fact the broadcast of the program was done during early afternoon when there are children in the audience and thus, the broadcast of the program, as well as the language that has been used, was indecent and it was prohibited by § 1464 (Justia Law).

The concerned radio station filed a suit against FCC in the Court of Appeals and a three-judge panel heard this case, After arguments, they reversed the letter of reprimand with a dissenting vote. One judge in this panel concluded the case by saying that the action of FCC was invalid on two counts. The first premise was that the order constituted of the censorship prohibited under § 326 of the Communications Act of 1934 (Justia Law). The other reason behind that was the opinion of FCC can be considered as the functional equivalent of the Page 438 U.S. 727 rule and this was an overboard reaction. FCC appealed to US Supreme Court against this decision and in 1978, the Court upheld FCC’s position in this matter (Justia Law)

Procedural History: where the case came from and how it got there

This landmark case, FCC v. Pacifica Foundation, 438 U.S. 726 (1978) started when a father who was driving with his young son reported to FCC that his son has heard indecent language that was being broadcasted during the afternoon on WBAI, a Pacifica Foundation FM radio station. The concerned program was “Filthy Words”, a George Carlin routine (Parker). This program repeated and listed a range of words that could not be used on any public airwaves. FCC forwarded this complaint to WBAI, a Pacifica Foundation FM radio station and received an inadequate response. After that, FCC issued a declaratory order and granted the complaint. Although it did not impose the formal sanctions at this time, it declared that, this complaint would be filed along with the license file of radio station, and if they receive further complaints, then it would be the Commission’s prerogative to make decision and utilize the available sanctions that have been granted by the Congress (Parker)

Predictably, the radio station went to court and filed the suit against this decision. While reversing the decision, the Court of Appeals stated that in issuing a letter of reprimand FCC has exceeded its charter related to § 1464 and the censorship provision of § 326 does not apply to broadcasts that has been forbidden by § 1464 (Justia Law). However, one judge struck a dissent note in the three-judge panel and stated that it was within the jurisdiction of FCC to protect the children from unwarranted offensive language that has been broadcasted during the day hours and with this decision, FCC has remained within its jurisdiction. However, the respondent contended that the program has not violated the spirit of the statute as it does not have any prurient appeal for the viewer (Justia Law). 

FCC contested this judgment and appealed to the US Supreme Court and it reversed the judgment of the Court of Appeals with 5 to 4 votes. As per this Court, FCC has an obligation to protect and shield the children from offensive languages and things, particularly from the programs that are broadcasted in the day hours and they may remain the part of the audience. In this landmark decision, it also offered a considerable leeway to FCC in the future to make the decision related to this matter (Justia Law). 

Holding (Court’s decision)

When FCC acted on the complaint of a father regarding the filthy language used on the radio station in the afternoon and slapped a letter of reprimand on the radio station. The owners filed a suit in Court of Appeals and it reversed this order on two grounds. The first ground was that FCC overreached its rights and other was the program was protected by the first amendment of the Constitution (Parker)

However, FCC appealed to Supreme Court, which reversed the order of the Court of Appeals with the vote of 5-4 and held that FCC was within its jurisdiction when slapped the reprimand letter to the radio station. It further held that the program routine could be considered as indecent but not obscene (Parker). It further accepted the argument that the government’s interest was compelling in this matter as it has a duty to shield children from any potentially offensive material. Further, it also has to ensure that any unwanted speech does not enter one’s house or home. During this judgment, it also reaffirmed the authority of FCC to prohibit this kind of broadcasts during the day hours when children may become the part of the audience (Parker). This judgment was also a landmark in the sense it gave FCC a broad spectrum while deciding the concept of indecency in this channel and in varied contexts (Parker). 

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Reasoning (details of what lead to court’s decision)

When this matter went to Court of Appeals, the decision of FCC was reversed by one dissenting vote. One judge felt that the action of FCC was invalid due to two reasons. The first reason was censorship that has been forbidden due to § 326 of the Communications Act of 1934 (Parker). The second reason was the fact that the opinion of the FCC was considered as a functional equivalent of Page 438 of US 727 and further, that can be considered as overboard. The second judge concluded his opinion that the censorship provision of § 326 does not apply to broadcasts that have been forbidden by § 1464 (Parker). He further concluded that § 1464 has been constituted in a narrow manner and covers only languages that can be deemed as obscene or are not protected by the first Amendment of the American constitution (Parker). However, the third judge struck the dissenting note as he stated that the decision of FCC was correct related to daytime broadcast of the program as indecent. 

However, the respondent contended that the program cannot be considered as indecent as per the meaning of the statute as it did not have any prurient appeal to the listener. 

When FCC appealed against this decision in US Supreme court, with 5-4 votes, it reversed the decision again and agreed with the opinion of the dissent judge of the Court of Appeals. It stated that a government agency has a duty to protect the children from the lewd, indecent and potentially offensive material. Also, a government agency has to ensure that any unwanted speech or offensive material does not enter anyone’s home without their consent. The Supreme Court also confirmed FCC’s authority to prohibit any type of broadcast that may be offensive to children and is broadcasted during the day hours when children may become intentionally or unwittingly the part of the audience (Parker). 

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  1. Justia Law. FCC v. 726 (1978). Web. Apr. 2017. 2017.
  2. Parker, R. Free speech on trial. 1st ed. Tuscaloosa, Ala. [u.a.]: The University of Alabama Press. 2003.
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