FCC v. Pacifica Foundation: George Carlin's subtle taunting gets to the Supremes & we learn the meaning of Community Standards

Given the circumstances in Minnesota - with Al Franken's writings back in the day - I have thought a lot lately about the classic Supreme Court First Amendment cases. The rules here are unique, and these days many spots in the world are moving closer towards regulating political speech.

In 1972 George Carlin got arrested for some quality words:

Pacifica Radio put on the routine from the Occupation: Foole album...

Occupation: Foole - Wikipedia

Wikipedia adds: Federal Communications Commission v. Pacifica Foundation

The U.S. Supreme Court upheld the FCC action in 1978, by a vote of 5 to 4, ruling that the routine was "indecent but not obscene". The Court accepted as compelling the government's interests in 1) shielding children from patently offensive material, and 2) ensuring that unwanted speech does not enter one's home. The Court stated that the FCC had the authority to prohibit such broadcasts during hours when children were likely to be among the audience, and gave the FCC broad leeway to determine what constituted indecency in different contexts.

Here we go: the full text from of course, the Electronic Frontier Foundation: (thanks for all the nice work, EFF)

http://w2.eff.org/legal/cases/FCC_v_Pacifica/fcc_v_pacifica.decision

FCC V. PACIFICA FOUNDATION

FCC v. PACIFICA FOUNDATION

438 U.S. 726 (1978)

Decided July 3, 1978

1. Syllabus

2. Majority opinion

3. Concurring opinion

4. Dissenting opinion

5. Dissenting opinion

A radio station of respondent Pacifica Foundation (hereinafter

respondent) made an afternoon broadcast of a satiric monologue,

entitled "Filthy Words," which listed and repeated a variety of

colloquial uses of "words you couldn't say on the public airwaves." A

father who heard the broadcast while driving with his young son

complained to the Federal Communications Commission (FCC), which,

after forwarding the complaint for comment to and receiving a response

from respondent, issued a declaratory order granting the complaint.

While not imposing formal sanctions, the FCC stated that the order

would be "associated with the station's license file, and in the event

subsequent complaints are received, the Commission will then decide

whether it should utilize any of the available sanctions it has been

granted by Congress." In its memorandum opinion, the FCC stated that

it intended to "clarify the standards which will be utilized in

considering" the growing number of complaints about indecent radio

broadcasts, and it advanced several reasons for treating that type of

speech differently from other forms of expression. The FCC found a

power to regulate indecent broadcasting, inter alia, in 18 U.S.C. 1464

(1976 ed.), which forbids the use of "any obscene, indecent, or

profane language by means of radio communications." The FCC

characterized the language of the monologue as "patently offensive,"

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 channeling behavior rather than

actually prohibiting it." The FCC found that certain words in the

monologue depicted sexual and excretory activities in a particularly

offensive manner, noted that they were broadcast in the early

afternoon "when children are undoubtedly in the audience," and

concluded that the language as broadcast was indecent and prohibited

by 1464. A three-judge panel of the Court of Appeals reversed, one

judge concluding that the FCC's action was invalid either on the

ground that the order constituted censorship, which was expressly

forbidden by 326 of the Communications Act of 1934, or on the ground

that the FCC's opinion was the functional equivalent of a rule, and as

such was "overbroad." Another judge, who felt that 326's censorship

provision did not apply to broadcasts forbidden by 1464, concluded

that 1464, construed narrowly as it has to be, covers only language

that is obscene or otherwise unprotected by the First Amendment. The

third judge, dissenting, concluded that the FCC had correctly

condemned the daytime broadcast as indecent. Respondent contends that

the broadcast was not indecent within the meaning of the statute

because of the absence of prurient appeal. Held: The judgment is

reversed. Pp. 734-741; 748-750; 761-762.

181 U.S. App. D.C. 132, 556 F.2d 9, reversed.

MR. JUSTICE STEVENS delivered the opinion of the Court with respect to

Parts I-III and IV-C, finding:

1. The FCC's order was an adjudication under 5 U.S.C. 554 (e) (1976

ed.), the character of which was not changed by the general statements

in the memorandum opinion; nor did the FCC's action constitute

rulemaking or the promulgation of regulations. Hence, the Court's

review must focus on the FCC's determination that the monologue was

indecent as broadcast. Pp. 734-735.

2. Section 326 does not limit the FCC's authority to sanction

licensees who engage in obscene, indecent, or profane broadcasting.

Though the censorship ban precludes editing proposed broadcasts in

advance, the ban does not deny the FCC the power to review the content

of completed broadcasts. Pp. 735-738.

3. The FCC was warranted in concluding that indecent language within

the meaning of 1464 was used in the challenged broadcast. The words

"obscene, indecent, or profane" are in the disjunctive, implying that

each has a separate meaning. Though prurient appeal is an element of

"obscene," it is not an element of "indecent," which merely refers to

noncomformance with accepted standards of morality. Contrary to

respondent's argument, this Court in Hamling v. United States, 418

U.S. 87, has not foreclosed a reading of 1464 that authorizes a

proscription of "indecent" language that is not obscene, for the

statute involved in that case, unlike 1464, focused upon the prurient,

and dealt primarily with printed matter in sealed envelopes mailed

from one individual to another, whereas 1464 deals with the content of

public broadcasts. Pp. 738-741.

4. Of all forms of communication, broadcasting has the most limited

First Amendment protection. Among the reasons for specially treating

indecent broadcasting is the uniquely pervasive presence that medium

of expression occupies in the lives of our people. Broadcasts extend

into the privacy of the home and it is impossible completely to avoid

those that are patently offensive. Broadcasting, moreover, is uniquely

accessible to children. Pp. 748-750.

MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE, and MR. JUSTICE

REHNQUIST, concluded in Parts IV-A and IV-B:

1. The FCC's authority to proscribe this particular broadcast is not

invalidated by the possibility that its construction of the statute

may deter certain hypothetically protected broadcasts containing

patently offensive references to sexual and excretory activities. Cf.

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367. Pp. 742-743.

2. The First Amendment does not prohibit all governmental regulation

that depends on the content of speech. Schenck v. United States, 249

U.S. 47, 52. The content of respondent's broadcast, which was

"vulgar," "offensive," and "shocking," is not entitled to absolute

constitutional protection in all contexts; it is therefore necessary

to evaluate the FCC's action in light of the context of that

broadcast. Pp. 744-748.

MR. JUSTICE POWELL, joined by MR. JUSTICE BLACKMUN, concluded that the

FCC's holding does not violate the First Amendment, though, being of

the view that Members of this Court are not free generally to decide

on the basis of its content which speech protected by the First

Amendment is most valuable and therefore deserving of First Amendment

protection, and which is less "valuable" and hence less deserving of

protection, he is unable to join Part IV-B (or IV-A) of the opinion.

Pp. 761-762.

STEVENS, J., announced the Court's judgment and delivered an opinion

of the Court with respect to Parts I-III and IV-C, in which BURGER, C.

J., and REHNQUIST, J., joined, and in all but Parts IV-A and IV-B of

which BLACKMUN and POWELL, JJ., joined, and an opinion as to Parts

IV-A and IV-B, in which BURGER, C. J., and REHNQUIST, J., joined.

POWELL, J., filed an opinion concurring in part and concurring in the

judgment, in which BLACKMUN, J., joined, post, p. 755. BRENNAN, J.,

filed a dissenting opinion, in which MARSHALL, J., joined, post, p.

762. STEWART, J., filed a dissenting opinion, in which BRENNAN, WHITE,

and MARSHALL, JJ., joined, post, p. 777.

Joseph A. Marino argued the cause for petitioner. With him on the

briefs were Robert R. Bruce and Daniel M. Armstrong.

Harry M. Plotkin argued the cause for respondent Pacifica Foundation.

With him on the brief were David Tillotson and Harry F. Cole. Louis F.

Claiborne argued the cause for the United States, a respondent under

this Court's Rule 21 (4). With him on the brief were Solicitor General

McCree, Assistant Attorney General Civiletti, and Jerome M. Feit.[*]

*Briefs of amici curiae urging reversal were filed by Anthony H. Atlas

for Morality in Media, Inc.; and by George E. Reed and Patrick F.

Geary for the United States Catholic Conference.

Briefs of amici curiae urging affirmance were filed by J. Roger

Wollenberg, Timothy B. Dyk, James A. McKenna, Jr., Carl R. Ramey,

Erwin G. Krasnow, Floyd Abrams, J. Laurent Scharff, Corydon B. Dunham,

and Howard Monderer for the American Broadcasting Companies, Inc., et

al.; by Henry R. Kaufman, Joel M. Gora, Charles Sims, and Bruce J.

Ennis for the American Civil Liberties Union et al.; by Irwin Karp for

the Authors League of America, Inc.; by James Bouras, Barbara Scott,

and Fritz E. Attaway for the Motion Picture Association of America,

Inc.; and by Paul P. Selvin for the Writers Guild of America, West

Inc.

Charles M. Firestone filed a brief for the Committee for Open Media as

amicus curiae.

FCC V. PACIFICA FOUNDATION - MAJORITY OPINION

MR. JUSTICE STEVENS delivered the opinion of the Court (Parts I, II,

III, and IV-C) and an opinion in which THE CHIEF JUSTICE and MR.

JUSTICE REHNQUIST joined (Parts IV-A and IV-B).

This case requires that we decide whether the Federal Communications

Commission has any power to regulate a radio broadcast that is

indecent but not obscene.

A satiric humorist named George Carlin recorded a 12-minute monologue

entitled "Filthy Words" before a live audience in a California

theater. He began by referring to his thoughts about "the words you

couldn't say on the public, ah, airwaves, um, the ones you definitely

wouldn't say, ever." He proceeded to list those words and repeat them

over and over again in a variety of colloquialisms. The transcript of

the recording, which is appended to this opinion, indicates frequent

laughter from the audience.

At about 2 o'clock in the afternoon on Tuesday, October 30, 1973, a

New York radio station, owned by respondent Pacifica Foundation,

broadcast the "Filthy Words" monologue. A few weeks later a man, who

stated that he had heard the broadcast while driving with his young

son, wrote a letter complaining to the Commission. He 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."

The complaint was forwarded to the station for comment. In its

response, Pacifica explained that the monologue had been played during

a program about contemporary society's attitude toward la0nguage and

that, immediately before its broadcast, listeners had been advised

that it included ++"sensitive language which might be regarded as

offensive to some." Pacifica characterized George Carlin as "a

significant social satirist" who "like Twain and Sahl before him,

examines the language of ordinary people. . . . Carlin is not mouthing

obscenities, he is merely using words to satirize as harmless and

essentially silly our attitudes towards those words." Pacifica stated

that it was not aware of any other complaints about the broadcast.

On February 21, 1975, the Commission issued a declaratory order

granting the complaint and holding that Pacifica "could have been the

subject of administrative sanctions." 56 F. C. C. 2d 94, 99. The

Commission did not impose formal sanctions, but it did state that the

order would be "associated with the station's license file, and in the

event that subsequent complaints are received, the Commission will

then decide whether it should utilize any of the available sanctions

it has been granted by Congress."[fn1]

In its memorandum opinion the Commission stated that it intended to

"clarify the standards which will be utilized in considering" the

growing number of complaints about indecent speech on the airwaves.

Id., at 94. Advancing several reasons for treating broadcast speech

differently from other forms of expression,[fn2] the Commission found

a power to regulate indecent broadcasting in two statutes: 18 U.S.C.

1464 (1976 ed.), which forbids the use of "any obscene, indecent, or

profane language by means of radio communications,"[fn3] and 47 U.S.C.

303 (g), which requires the Commission to "encourage the larger and

more effective use of radio in the public interest."[fn4]

The Commission characterized the language used in the Carlin monologue

as "patently offensive," though not necessarily obscene, and expressed

the opinion that it should be regulated by principles analogous to

those found in the law of nuisance where the "law generally speaks to

channeling behavior more than actually prohibiting it. . . . [T]he

concept of `indecent' is intimately connected with the exposure of

children 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." 56

F. C. C. 2d, at 98.[fn5]

Applying these considerations to the language used in the monologue as

broadcast by respondent, the Commission concluded that certain words

depicted sexual and excretory activities in a patently offensive

manner, noted that they "were broadcast at a time when children were

undoubtedly in the audience (i. e., in the early afternoon)," and that

the prerecorded language, with these offensive words "repeated over

and over," was "deliberately broadcast." Id., at 99. In summary, the

Commission stated: "We therefore hold that the language as broadcast

was indecent and prohibited by 18 U.S.C. [] 1464."[fn6] Ibid.

After the order issued, the Commission was asked to clarify its

opinion by ruling that the broadcast of indecent words as part of a

live newscast would not be prohibited. The Commission issued another

opinion in which it pointed out that it "never intended to place an

absolute prohibition on the broadcast of this type of language, but

rather sought to channel it to times of day when children most likely

would not be exposed to it." 59 F. C. C. 2d 892 (1976). The Commission

noted that its "declaratory order was issued in a specific factual

context," and declined to comment on various hypothetical situations

presented by the petition.[fn7] Id., at 893. It relied on its "long

standing policy of refusing to issue interpretive rulings or advisory

opinions when the critical facts are not explicitly stated or there is

a possibility that subsequent events will alter them." Ibid.

The United States Court of Appeals for the District of Columbia

Circuit reversed, with each of the three judges on the panel writing

separately. 181 U.S. App. D.C. 132, 556 F.2d 9. Judge Tamm concluded

that the order represented censorship and was expressly prohibited by

326 of the Communications Act.[fn8] Alternatively, Judge Tamm read the

Commission opinion as the functional equivalent of a rule and

concluded that it was "overbroad." 181 U.S. App. D.C., at 141, 556

F.2d, at 18. Chief Judge Bazelon's concurrence rested on the

Constitution. He was persuaded that 326's prohibition against

censorship is inapplicable to broadcasts forbidden by 1464. However,

he concluded that 1464 must be narrowly construed to cover only

language that is obscene or otherwise unprotected by the First

Amendment. 181 U.S. App. D.C., at 140-153, 556 F.2d, at 24-30. Judge

Leventhal, in dissent, stated that the only issue was whether the

Commission could regulate the language "as broadcast." Id., at 154,

556 F.2d, at 31. Emphasizing the interest in protecting children, not

only from exposure to indecent language, but also from exposure to the

idea that such language has official approval, id., at 160, and n. 18,

556 F.2d, at 37, and n. 18, he concluded that the Commission had

correctly condemned the daytime broadcast as indecent.

Having granted the Commission's petition for certiorari, 434 U.S.

1008, we must decide: (1) whether the scope of judicial review

encompasses more than the Commission's determination that the

monologue was indecent "as broadcast"; (2) whether the Commission's

order was a form of censorship forbidden by 326; (3) whether the

broadcast was indecent within the meaning of 1464; and (4) whether the

order violates the First Amendment of the United States Constitution.

I

The general statements in the Commission's memorandum opinion do not

change the character of its order. Its action was an adjudication

under 5 U.S.C. 554 (e) (1976 ed.); it did not purport to engage in

formal rulemaking or in the promulgation of any regulations. The order

"was issued in a specific factual context"; questions concerning

possible action in other contexts were expressly reserved for the

future. The specific holding was carefully confined to the monologue

"as broadcast."

"This Court . . . reviews judgments, not statements in opinions."

Black v. Cutter Laboratories, 351 U.S. 292, 297. That admonition has

special force when the statements raise constitutional questions, for

it is our settled practice to avoid the unnecessary decision of such

issues. Rescue Army v. Municipal Court, 331 U.S. 549, 568-569. However

appropriate it may be for an administrative agency to write broadly in

an adjudicatory proceeding, federal courts have never been empowered

to issue advisory opinions. See Herb v. Pitcairn, 324 U.S. 117, 126.

Accordingly, the focus of our review must be on the Commission's

determination that the Carlin monologue was indecent as broadcast.

II

The relevant statutory questions are whether the Commission's action

is forbidden "censorship" within the meaning of 47 U.S.C. 326 and

whether speech that concededly is not obscene may be restricted as

"indecent" under the authority of 18 U.S.C. 1464 (1976 ed.). The

questions are not unrelated, for the two statutory provisions have a

common origin. Nevertheless, we analyze them separately.

Section 29 of the Radio Act of 1927 provided:

"Nothing in this Act shall be understood or construedto give the

licensing authority the power of censorshipover the radio

communications or signals transmitted byany radio station, and no

regulation or condition shall bepromulgated or fixed by the licensing

authority whichshall interfere with the right of free speech by means

ofradio communications. No person within the jurisdictionof the United

States shall utter any obscene, indecent,or profane language by means

of radio communication."44 Stat. 1172.

The prohibition against censorship unequivocally denies the Commission

any power to edit proposed broadcasts in advance and to excise

material considered inappropriate for the airwaves. The prohibition,

however, has never been construed to deny the Commission the power to

review the content of completed broadcasts in the performance of its

regulatory duties.[fn9]

During the period between the original enactment of the provision in

1927 and its re-enactment in the Communications Act of 1934, the

courts and the Federal Radio Commission held that the section deprived

the Commission of the power to subject "broadcasting matter to

scrutiny prior to its release," but they concluded that the

Commission's "undoubted right" to take note of past program content

when considering a licensee's renewal application "is not

censorship."[fn10]

Not only did the Federal Radio Commission so construe the statute

prior to 1934; its successor, the Federal Communications Commission,

has consistently interpreted the provision in the same way ever since.

See Note, Regulation of Program Content by the FCC, 77 Harv. L. Rev.

701 (1964). And, until this case, the Court of Appeals for the

District of Columbia Circuit has consistently agreed with this

construction.[fn11] Thus, for example, in his opinion in

Anti-Defamation League of B'nai B'rith v. FCC, 131 U.S. App. D.C. 146,

403 F.2d 169 (1968), cert. denied, 394 U.S. 930, Judge Wright

forcefully pointed out that the Commission is not prevented from

canceling the license of a broadcaster who persists in a course of

improper programming. He explained:

"This would not be prohibited `censorship,' . . . any more than would

the Commission's considering on a license renewal application whether

a broadcaster allowed `coarse, vulgar, suggestive, double-meaning'

programming; programs containing such material are grounds for denial

of a license renewal." 131 U.S. App. D.C., at 150-151, n. 3. 403 F.2d,

at 173-174, n. 3.See also Office of Communication of United Church of

Christ v. FCC, 123 U.S. App. D.C. 328, 359 F.2d 994 (1966).

Entirely apart from the fact that the subsequent review of program

content is not the sort of censorship at which the statute was

directed, its history makes it perfectly clear that it was not

intended to limit the Commission's power to regulate the broadcast of

obscene, indecent, or profane language. A single section of the 1927

Act is the source of both the anticensorship provision and the

Commission's authority to impose sanctions for the broadcast of

indecent or obscene language. Quite plainly, Congress intended to give

meaning to both provisions. Respect for that intent requires that the

censorship language be read as inapplicable to the prohibition on

broadcasting obscene, indecent, or profane language.

There is nothing in the legislative history to contradict this

conclusion. The provision was discussed only in generalities when it

was first enacted.[fn12] In 1934, the anticensorship provision and the

prohibition against indecent broadcasts were re-enacted in the same

section, just as in the 1927 Act. In 1948, when the Criminal Code was

revised to include provisions that had previously been located in

other Titles of the United States Code, the prohibition against

obscene, indecent, and profane broadcasts was removed from the

Communications Act and re-enacted as 1464 of Title 18. 62 Stat. 769

and 866. That rearrangement of the Code cannot reasonably be

interpreted as having been intended to change the meaning of the

anticensorship provision. H. R. Rep. No. 304, 80th Cong., 1st Sess.,

A106 (1947). Cf. Tidewater Oil Co. v. United States, 409 U.S. 151,

162.

We conclude, therefore, that 326 does not limit the Commission's

authority to impose sanctions on licensees who engage in obscene,

indecent, or profane broadcasting.

III

The only other statutory question presented by this case is whether

the afternoon broadcast of the "Filthy Words" monologue was indecent

within the meaning of 1464.[fn13] Even that question is narrowly

confined by the arguments of the parties.

The Commission identified several words that referred to excretory or

sexual activities or organs, stated that the repetitive, deliberate

use of those words in an afternoon broadcast when children are in the

audience was patently offensive, and held that the broadcast was

indecent. Pacifica takes issue with the Commission's definition of

indecency, but does not dispute the Commission's preliminary

determination that each of the components of its definition was

present. Specifically, Pacifica does not quarrel with the conclusion

that this afternoon broadcast was patently offensive. Pacifica's claim

that the broadcast was not indecent within the meaning of the statute

rests entirely on the absence of prurient appeal.

The plain language of the statute does not support Pacifica's

argument. The words "obscene, indecent, or profane" are written in the

disjunctive, implying that each has a separate meaning. Prurient

appeal is an element of the obscene, but the normal definition of

"indecent" merely refers to nonconformance with accepted standards of

morality.[fn14]

Pacifica argues, however, that this Court has construed the term

"indecent" in related statutes to mean "obscene," as that term was

defined in Miller v. California, 413 U.S. 15. Pacifica relies most

heavily on the construction this Court gave to 18 U.S.C. 1461 in

Hamling v. United States, 418 U.S. 87. See also United States v. 12

200-ft. Reels of Film, 413 U.S. 123, 130 n. 7 (18 U.S.C. 1462)

(dicta). Hamling rejected a vagueness attack on 1461, which forbids

the mailing of "obscene, lewd, lascivious, indecent, filthy or vile"

material. In holding that the statute's coverage is limited to

obscenity, the Court followed the lead of Mr. Justice Harlan in Manual

Enterprises, Inc. v. Day, 370 U.S. 478. In that case, Mr. Justice

Harlan recognized that 1461 contained a variety of words with many

shades of meaning.[fn15] Nonetheless, he thought that the phrase

"obscene, lewd, lascivious, indecent, filthy or vile," taken as a

whole, was clearly limited to the obscene, a reading well grounded in

prior judicial constructions: "[T]he statute since its inception has

always been taken as aimed at obnoxiously debasing portrayals of sex."

370 U.S., at 483. In Hamling the Court agreed with Mr. Justice Harlan

that 1461 was meant only to regulate obscenity in the mails; by

reading into it the limits set by Miller v. California, supra, the

Court adopted a construction which assured the statute's

constitutionality.

The reasons supporting Hamling's construction of 1461 do not apply to

1464. Although the history of the former revealed a primary concern

with the prurient, the Commission has long interpreted 1464 as

encompassing more than the obscene.[fn16] The former statute deals

primarily with printed matter enclosed in sealed envelopes mailed from

one individual to another; the latter deals with the content of public

broadcasts. It is unrealistic to assume that Congress intended to

impose precisely the same limitations on the dissemination of patently

offensive matter by such different means.[fn17]

Because neither our prior decisions nor the language or history of

1464 supports the conclusion that prurient appeal is an essential

component of indecent language, we reject Pacifica's construction of

the statute. When that construction is put to one side, there is no

basis for disagreeing with the Commission's conclusion that indecent

language was used in this broadcast.

IV

Pacifica makes two constitutional attacks on the Commission's order.

First, it argues that the Commission's construction of the statutory

language broadly encompasses so much constitutionally protected speech

that reversal is required even if Pacifica's broadcast of the "Filthy

Words" monologue is not itself protected by the First Amendment.

Second, Pacifica argues that inasmuch as the recording is not obscene,

the Constitution forbids any abridgment of the right to broadcast it

on the radio.

A

The first argument fails because our review is limited to the question

whether the Commission has the authority to proscribe this particular

broadcast. As the Commission itself emphasized, its order was "issued

in a specific factual context." 59 F. C. C. 2d, at 893. That approach

is appropriate for courts as well as the Commission when regulation of

indecency is at stake, for indecency is largely a function of context

it cannot be adequately judged in the abstract.

The approach is also consistent with Red Lion Broadcasting Co. v. FCC,

395 U.S. 367. In that case the Court rejected an argument that the

Commission's regulations defining the fairness doctrine were so vague

that they would inevitably abridge the broadcasters' freedom of

speech. The Court of Appeals had invalidated the regulations because

their vagueness might lead to self-censorship of controversial program

content. Radio Television News Directors Assn. v. United States, 400

F.2d 1002, 1016 (CA7 1968). This Court reversed. After noting that the

Commission had indicated, as it has in this case, that it would not

impose sanctions without warning in cases in which the applicability

of the law was unclear, the Court stated:

"We need not approve every aspect of the fairness doctrine to decide

these cases, and we will not now pass upon the constitutionality of

these regulations by envisioning the most extreme applications

conceivable, United States v. Sullivan, 332 U.S. 689, 694 (1948), but

will deal with those problems if and when they arise." 395 U.S., at

396.

It is true that the Commission's order may lead some broadcasters to

censor themselves. At most, however, the Commission's definition of

indecency will deter only the broadcasting of patently offensive

references to excretory and sexual organs and activities.[fn18] While

some of these references may be protected, they surely lie at the

periphery of First Amendment concern. Cf. Bates v. State Bar of

Arizona, 433 U.S. 350, 380-381. Young v. American Mini Theatres, Inc.,

427 U.S. 50, 61. The danger dismissed so summarily in Red Lion, in

contrast, was that broadcasters would respond to the vagueness of the

regulations by refusing to present programs dealing with important

social and political controversies. Invalidating any rule on the basis

of its hypothetical application to situations not before the Court is

"strong medicine" to be applied "sparingly and only as a last resort."

Broadrick v. Oklahoma, 413 U.S. 601, 613. We decline to administer

that medicine to preserve the vigor of patently offensive sexual and

excretory speech.

B

When the issue is narrowed to the facts of this case, the question is

whether the First Amendment denies government any power to restrict

the public broadcast of indecent language in any circumstances.[fn19]

For if the government has any such power, this was an appropriate

occasion for its exercise.

The words of the Carlin monologue are unquestionably "speech" within

the meaning of the First Amendment. It is equally clear that the

Commission's objections to the broadcast were based in part on its

content. The order must therefore fall if, as Pacifica argues, the

First Amendment prohibits all governmental regulation that depends on

the content of speech. Our past cases demonstrate, however, that no

such absolute rule is mandated by the Constitution.

The classic exposition of the proposition that both the content and

the context of speech are critical elements of First Amendment

analysis is Mr. Justice Holmes' statement for the Court in Schenck v.

United States, 249 U.S. 47, 52:

"We admit that in many places and in ordinary times the defendants in

saying all that was said in the circular would have been within their

constitutional rights. But the character of every act depends upon the

circumstances in which it is done. . . . The most stringent protection

of free speech would not protect a man in falsely shouting fire in a

theatre and causing a panic. It does not even protect a man from an

injunction against uttering words that may have all the effect of

force. . . . The question in every case is whether the words used are

used in such circumstances and are of such a nature as to create a

clear and present danger that they will bring about the substantive

evils that Congress has a right to prevent."

Other distinctions based on content have been approved in the years

since Schenck. The government may forbid speech calculated to provoke

a fight. See Chaplinsky v. New Hampshire, 315 U.S. 568. It may pay

heed to the "`commonsense differences' between commercial speech and

other varieties." Bates v. State Bar of Arizona, supra, at 381. It may

treat libels against private citizens more severely than libels

against public officials. See Gertz v. Robert Welch, Inc., 418 U.S.

323. Obscenity may be wholly prohibited. Miller v. California, 413

U.S. 15. And only two Terms ago we refused to hold that a "statutory

classification is unconstitutional because it is based on the content

of communication protected by the First Amendment." Young v. American

Mini Theatres, Inc., supra, at 52.

The question in this case is whether a broadcast of patently offensive

words dealing with sex and excretion may be regulated because of its

content.[fn20] Obscene materials have been denied the protection of

the First Amendment because their content is so offensive to

contemporary moral standards. Roth v. United States, 354 U.S. 476. But

the fact that society may find speech offensive is not a sufficient

reason for suppressing it. Indeed, if it is the speaker's opinion that

gives offense, that consequence is a reason for according it

constitutional protection. For it is a central tenet of the First

Amendment that the government must remain neutral in the marketplace

of ideas[fn21] If there were any reason to believe that the

Commission's characterization of the Carlin monologue as offensive

could be traced to its political content or even to the fact that it

satirized contemporary attitudes about four-letter words[fn22] First

Amendment protection might be required. But that is simply not this

case. These words offend for the same reasons that obscenity

offends.[fn23] Their place in the hierarchy of First Amendment values

was aptly sketched by Mr. Justice Murphy when he said: "[S]uch

utterances are no essential part of any exposition of ideas, and are

of such slight social value as a step to truth that any benefit that

may be derived from them is clearly outweighed by the social interest

in order and morality." Chaplinsky v. New Hampshire, 315 U.S., at 572.

Although these words ordinarily lack literary, political, or

scientific value, they are not entirely outside the protection of the

First Amendment. Some uses of even the most offensive words are

unquestionably protected. See, e. g., Hess v. Indiana, 414 U.S. 105.

Indeed, we may assume, arguendo, that this monologue would be

protected in other contexts. Nonetheless, the constitutional

protection accorded to a communication containing such patently

offensive sexual and excretory language need not be the same in every

context.[fn24] It is a characteristic of speech such as this that both

its capacity to offend and its "social value," to use Mr. Justice

Murphy's term, vary with the circumstances. Words that are commonplace

in one setting are shocking in another. To paraphrase Mr. Justice

Harlan, one occasion's lyric is another's vulgarity. Cf. Cohen v.

California, 403 U.S. 15, 25.[fn25]

In this case it is undisputed that the content of Pacifica's broadcast

was "vulgar," "offensive," and "shocking." Because content of that

character is not entitled to absolute constitutional protection under

all circumstances, we must consider its context in order to determine

whether the Commission's action was constitutionally permissible.

C

We have long recognized that each medium of expression presents

special First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343

U.S. 495, 502-503. And of all forms of communication, it is

broadcasting that has received the most limited First Amendment

protection. Thus, although other speakers cannot be licensed except

under laws that carefully define and narrow official discretion, a

broadcaster may be deprived of his license and his forum if the

Commission decides that such an action would serve "the public

interest, convenience, and necessity."[fn26] Similarly, although the

First Amendment protects newspaper publishers from being required to

print the replies of those whom they criticize, Miami Herald

Publishing Co. v. Tornillo, 418 U.S. 241, it affords no such

protection to broadcasters; on the contrary, they must give free time

to the victims of their criticism. Red Lion Broadcasting Co. v. FCC,

395 U.S. 367.

The reasons for these distinctions are complex, but two have relevance

to the present case. First, the broadcast media have established a

uniquely pervasive presence in the lives of all Americans. Patently

offensive, indecent material presented over the airwaves confronts the

citizen, not only in public, but also in the privacy of the home,

where the individual's right to be left alone plainly outweighs the

First Amendment rights of an intruder. Rowan v. Post Office Dept., 397

U.S. 728. Because the broadcast audience is constantly tuning in and

out, prior warnings cannot completely protect the listener or viewer

from unexpected program content. To say that one may avoid further

offense by turning off the radio when he hears indecent language is

like saying that the remedy for an assault is to run away after the

first blow. One may hang up on an indecent phone call, but that option

does not give the caller a constitutional immunity or avoid a harm

that has already taken place.[fn27]

Second, broadcasting is uniquely accessible to children, even those

too young to read. Although Cohen's written message might have been

incomprehensible to a first grader, Pacifica's broadcast could have

enlarged a child's vocabulary in an instant. Other forms of offensive

expression may be withheld from the young without restricting the

expression at its source. Bookstores and motion picture theaters, for

example, may be prohibited from making indecent material available to

children. We held in Ginsberg v. New York, 390 U.S. 629, that the

government's interest in the "well-being of its youth" and in

supporting "parents' claim to authority in their own household"

justified the regulation of otherwise protected expression. Id., at

640 and 639.[fn28] The case with which children may obtain access to

broadcast material, coupled with the concerns recognized in Ginsberg,

amply justify special treatment of indecent broadcasting.

It is appropriate, in conclusion, to emphasize the narrowness of our

holding. This case does not involve a two-way radio conversation

between a cab driver and a dispatcher, or a telecast of an Elizabethan

comedy. We have not decided that an occasional expletive in either

setting would justify any sanction or, indeed, that this broadcast

would justify a criminal prosecution. The Commission's decision rested

entirely on a nuisance rationale under which context is all-important.

The concept requires consideration of a host of variables. The time of

day was emphasized by the Commission. The content of the program in

which the language is used will also affect the composition of the

audience,[fn29] and differences between radio, television, and perhaps

closed-circuit transmissions, may also be relevant. As Mr. Justice

Sutherland wrote, a "nuisance may be merely a right thing in the wrong

place, like a pig in the parlor instead of the barnyard." Euclid v.

Ambler Realty Co., 272 U.S. 365, 388. We simply hold that when the

Commission finds that a pig has entered the parlor, the exercise of

its regulatory power does not depend on proof that the pig is obscene.

The judgment of the Court of Appeals is reversed.

It is so ordered.

Click here to read other parts of FCC v. Pacifica decision

1. 56 F. C. C. 2d, at 99. The Commission noted:

"Congress has specifically empowered the FCC to (1) revoke a station's

license (2) issue a cease and desist order, or (3) impose a monetary

forfeiture for a violation of Section 1464, 47 U.S.C. [] 312 (a), 312

(b), 503 (b) (1) (E). The FCC can also (4) deny license renewal or (5)

grant a short term renewal, 47 U.S.C. [] 307, 308." Id., at 96 n. 3.

2. "Broadcasting requires special treatment because of four important

considerations: (1) children have access to radios and in many cases

are unsupervised by parents; (2) radio receivers are in the home, a

place where people's privacy interest is entitled to extra deference,

see Rowan v. Post Office Dept., 397 U.S. 728 (1970); (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. Of special concern to the Commission as well

as parents is the first point regarding the use of radio by children."

Id., at 97.

3. Title 18 U.S.C. 1464 (1976 ed.) provides:

"Whoever utters any obscene, indecent, or profane language by means of

radio communication shall be fined not more than $10,000 or imprisoned

not more than two years, or both."

4. Section 303 (g) of the Communications Act of 1934, 48 Stat. 1082,

as amended, as set forth in 47 U.S.C. 303 (g), in relevant part,

provides:

"Except as otherwise provided in this chapter, the Commission from

time to time, as public convenience, interest, or necessity requires,

shall

.. . . .

"(g) . . . generally encourage the larger and more effective use of

radio in the public interest."

5. Thus, the Commission suggested, if an offensive broadcast had

literary, artistic, political, or scientific value, and were preceded

by warnings, it might not be indecent in the late evening, but would

be so during the day, when children are in the audience. 56 F. C. C.

2d, at 98.

6. Chairman Wiley concurred in the result without joining the opinion.

Commissioners Reid and Quello filed separate statements expressing the

opinion that the language was inappropriate for broadcast at any time.

Id., at 102-103. Commissioner Robinson, joined by Commissioner Hooks,

filed a concurring statement expressing the opinion: "[W]e can

regulate offensive speech to the extent it constitutes a public

nuisance. . . . The governing idea is that `indecency' is not an

inherent attribute of words themselves; it is rather a matter of

context and conduct. . . . If I were called on to do so, I would find

that Carlin's monologue, if it were broadcast at an appropriate hour

and accompanied by suitable warning, was distinguished by sufficient

literary value to avoid being `indecent' within the meaning of the

statute." Id., at 107-108, and n. 9.

7. The Commission did, however, comment:

"`[I]n some cases, public events likely to produce offensive speech

are covered live, and there is no opportunity for journalistic

editing.' Under these circumstances we believe that it would be

inequitable for us to hold a licensee responsible for indecent

language. . . . We trust that under such circumstances a licensee will

exercise judgment, responsibility, and sensitivity to the community's

needs, interests and tastes." 59 F. C. C. 2d, at 893 n. 1.

8. "Nothing in this Act shall be understood or construed to give the

Commission the power of censorship over the radio communications or

signals transmitted by any radio station, and no regulation or

condition shall be promulgated or fixed by the Commission which shall

interfere with the right of free speech by means of radio

communication." 48 Stat. 1091, 47 U.S.C. 326.

9. Zechariah Chafee, defending the Commission's authority to take into

account program service in granting licenses, interpreted the

restriction on "censorship" narrowly: "This means, I feel sure, the

sort of censorship which went on in the seventeenth century in England

the deletion of specific items and dictation as to what should go into

particular programs." 2 Z. Chafee, Government and Mass Communications

641 (1947).

10. In KFKB Broadcasting Assn. v. Federal Radio Comm'n, 60 App. D.C.

79, 47 F.2d 670 (1931), a doctor who controlled a radio station as

well as a pharmaceutical association made frequent broadcasts in which

he answered the medical questions of listeners. He often prescribed

mixtures prepared by his pharmaceutical association. The Commission

determined that renewal of the station's license would not be in the

public interest, convenience, or necessity because many of the

broadcasts served the doctor's private interests. In response to the

claim that this was censorship in violation of 29 of the 1927 Act, the

Court held:

"This contention is without merit. There has been no attempt on the

part of the commission to subject any part of appellant's broadcasting

matter to scrutiny prior to its release. In considering the question

whether the public interest, convenience, or necessity will be served

by a renewal of appellant's license, the commission has merely

exercised its undoubted right to take note of appellant's past

conduct, which is not censorship." 60 App. D.C., at 81, 47 F.2d, at

672.

In Trinity Methodist Church, South v. Federal Radio Comm'n, 61 App.

D.C. 311, 62 F.2d 850 (1932), cert. denied, 288 U.S. 599, the station

was controlled by a minister whose broadcasts contained frequent

references to "pimps" and "prostitutes" as well as bitter attacks on

the Roman Catholic Church. The Commission refused to renew the

license, citing the nature of the broadcasts. The Court of Appeals

affirmed, concluding the First Amendment concerns did not prevent the

Commission from regulating broadcasts that "offend the religious

susceptibilities of thousands . . . or offend youth and innocence by

the free use of words suggestive of sexual immorality." 61 App. D.C.,

at 314, 62 F.2d, at 853. The court recognized that the licensee had a

right to broadcast this material free of prior restraint, but "this

does not mean that the government, through agencies established by

Congress, may not refuse a renewal of license to one who has abused

it." Id., at 312, 62 F.2d, at 851.

11. See, e. g., Bay State Beacon, Inc. v. FCC, 84 U.S. App. D.C. 216,

171 F.2d 826 (1948); Idaho Microwave, Inc. v. FCC, 122 U.S. App. D.C.

253, 352 F.2d 729 (1965); National Assn. of Theatre Owners v. FCC, 136

U.S. App. D.C. 352, 420 F.2d 194 (1969), cert. denied, 397 U.S. 922.

12. See, e. g., 67 Cong. Rec. 12615 (1926) (remarks of Sen. Dill);

id., at 5480 (remarks of Rep. White); 68 Cong. Rec. 2567 (1927)

(remarks of Rep. Scott); Hearings on S. 1 and S. 1754 before the

Senate Committee on Interstate Commerce, 69th Cong., 1st Sess., 121

(1926); Hearings on H.0 R. 5589 before the House Committee on the

Merchant Marine and Fisheries, 69th Cong., 1st ++Sess., 26 and 40

(1926). See also Hearings on H. R. 8825 before the House Committee on

the Merchant Marine and Fisheries, 70th Cong., 1st Sess., passim

(1928).

13. In addition to 1464, the Commission also relied on its power to

regulate in the public interest under 47 U.S.C. 303 (g). We do not

need to consider whether 303 may have independent significance in a

case such as this. The statutes authorizing civil penalties

incorporate 1464, a criminal statute. See 47 U.S.C. 312 (a) (6), 312

(b) (2), and 503 (b) (1) (E) (1970 ed. and Supp. V). But the validity

of the civil sanctions is not linked to the validity of the criminal

penalty. The legislative history of the provisions establishes their

independence. As enacted in 1927 and 1934, the prohibition on indecent

speech was separate from the provisions imposing civil and criminal

penalties for violating the prohibition. Radio Act of 1927, 14, 29,

and 33, 44 Stat. 1168 and 1173; Communications Act of 1934, 312, 326,

and 501, 48 Stat. 1086, 1091, and 1100, 47 U.S.C. 312, 326, and 501

(1970 ed. and Supp. V). The 1927 and 1934 Acts indicated in the

strongest possible language that any invalid provision was separable

from the rest of the Act. Radio Act of 1927, 38, 44 Stat. 1174;

Communications Act of 1934, 608, 48 Stat. 1105, 47 U.S.C. 608.

Although the 1948 codification of the criminal laws and the addition

of new civil penalties changes the statutory structure, no substantive

change was apparently intended. Cf. Tidewater Oil Co. v. United

States, 409 U.S. 151, 162. Accordingly, we need not consider any

question relating to the possible application of 1464 as a criminal

statute.

14. Webster defines the term as "a: altogether unbecoming: contrary to

what the nature of things or what circumstances would dictate as right

or expected or appropriate: hardly suitable: UNSEEMLY . . . b: not

conforming to generally accepted standards of morality: . . . ."

Webster's Third New International Dictionary (1966).

15. Indeed, at one point, he used "indecency" as a shorthand term for

"patent offensiveness," 370 U.S., at 482, a usage strikingly similar

to the Commission's definition in this case. 56 F. C. C. 2d, at 98.

16. "`[W]hile a nudist magazine may be within the protection of the

First Amendment . . . the televising of nudes might well raise a

serious question of programming contrary to 18 U.S.C. 1464. . . .

Similarly, regardless of whether the "4-letter words" and sexual

description, set forth in "lady Chatterly's Lover," (when considered

in the context of the whole book) make the book obscene for

mailability purposes, the utterance of such words or the depiction of

such sexual activity on radio or TV would raise similar public

interest and section 1464 questions.'" En banc Programing Inquiry, 44

F. C. C. 2303, 2307 (1960). See also In re WUHYFM, 24 F. C. C. 2d 408,

412 (1970); In re Sonderling Broadcasting Corp., 27 R. R. 2d 285, on

reconsideration, 41 F. C. C. 2d 777 (1973), aff'd on other grounds sub

nom. Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S.

App. D.C. 166, 515 F.2d 397 (1974); In re Mile High Stations, Inc., 28

F. C. C. 795 (1960); In re Palmetto Broadcasting Co., 33 F. C. C. 250

(1962), reconsideration denied, 34 F. C. C. 101 (1963), aff'd on other

grounds sub nom. Robinson v. FCC, 118 U.S. App. D.C. 144, 334 F.2d 534

(1964), cert. denied, 379 U.S. 843.

17. This conclusion is reinforced by noting the different

constitutional limits on Congress' power to regulate the two different

subjects. Use of the postal power to regulate material that is not

fraudulent or obscene raises "grave constitutional questions."

Hannegan v. Esquire, Inc., 327 U.S. 146, 156. But it is well settled

that the First Amendment has a special meaning in the broadcasting

context. See, e. g., FCC v. National Citizens Committee for

Broadcasting, 436 U.S. 775; Red Lion Broadcasting Co. v. FCC, 395 U.S.

367; Columbia Broadcasting System, Inc. v. Democratic National

Committee, 412 U.S. 94. For this reason, the presumption that Congress

never intends to exceed constitutional limits, which supported

Hamling's narrow reading of 1461, does not support a comparable

reading of 1464.

18. A requirement that indecent language be avoided will have its

primary effect on the form, rather than the content, of serious

communication. There are few, if any, thoughts that cannot be

expressed by the use of less offensive language.

19. Pacifica's position would, of course, deprive the Commission of

any power to regulate erotic telecasts unless they were obscene under

Miller v. California, 413 U.S. 15. Anything that could be sold at a

newsstand for private examination could be publicly displayed on

television.

We are assured by Pacifica that the free play of market forces will

discourage indecent programming. "Smut may," as Judge Leventhal put

it, "drive itself from the market and confound Gresham," 181 U.S. App.

D.C., at 158, 556 F.2d, at 35; the prosperity of those who traffic in

pornographic literature and films would appear to justify skepticism.

20. Although neither MR. JUSTICE POWELL nor MR. JUSTICE BRENNAN

directly confronts this question, both have answered it affirmatively,

the latter explicitly, post, at 768 n. 3, and the former implicitly by

concurring in a judgment that could not otherwise stand.

21. See, e. g., Madison School District v. Wisconsin Employment

Relations Comm'n, 429 U.S. 167, 175-176; First National Bank of Boston

v. Bellotti, 435 U.S. 765.

22. The monologue does present a point of view; it attempts to show

that the words it uses are "harmless" and that our attitudes toward

them are "essentially silly." See supra, at 730. The Commission

objects, not to this point of view, but to the way in which it is

expressed. The belief that these words are harmless does not

necessarily confer a First Amendment privilege to use them while

proselytizing, just as the conviction that obscenity is harmless does

not license one to communicate that conviction by the indiscriminate

distribution of an obscene leaflet.

23. The Commission stated: "Obnoxious, gutter language describing

these matters has the effect of debasing and brutalizing human beings

by reducing them to their mere bodily functions . . . ." 56 F. C. C.

2d, at 98. Our society has a tradition of performing certain bodily

functions in private, and of severely limiting the public exposure or

discussion of such matters. Verbal or physical acts exposing those

intimacies are offensive irrespective of any message that may

accompany the exposure.

24. With respect to other types of speech, the Court has tailored its

protection to both the abuses and the uses to which it might be put.

See, e. g., New York Times Co. v. Sullivan, 376 U.S. 254 (special

scienter rules in libel suits brought by public officials); Bates v.

State Bar of Arizona, 433 U.S. 350 (government may strictly regulate

truthfulness in commercial speech). See also Young v. American Mini

Theatres, Inc., 427 U.S. 50, 82 n. 6 (POWELL, J., concurring).

25. The importance of context is illustrated by the Cohen case. That

case arose when Paul Cohen entered a Los Angeles courthouse wearing a

jacket emblazoned with the words "Fuck the Draft." After entering the

courtroom, he took the jacket off and folded it. 403 U.S., at 19 n. 3.

So far as the evidence showed, no one in the courthouse was offended

by his jacket. Nonetheless, when he left the courtroom, Cohen was

arrested, convicted of disturbing the peace, and sentenced to 30 days

in prison.

In holding that criminal sanctions could not be imposed on Cohen for

his political statement in a public place, the Court rejected the

argument that his speech would offend unwilling viewers; it noted that

"there was no evidence that persons powerless to avoid [his] conduct

did in fact object to it." Id., at 22. In contrast, in this case the

Commission was responding to a listener's strenuous complaint, and

Pacifica does not question its determination that this afternoon

broadcast was likely to offend listeners. It should be noted that the

Commission imposed a far more moderate penalty on Pacifica than the

state court imposed on Cohen. Even the strongest civil penalty at the

Commission's command does not include criminal prosecution. See n. 1,

supra.

26. 47 U.S.C. 309 (a), 312 (a) (2); FCC v. WOKO, Inc., 329 U.S. 223,

229. Cf. Shuttlesworth v. Birmingham, 394 U.S. 147; Staub v. Baxley,

355 U.S. 313.

27. Outside the home, the balance between the offensive speaker and

the unwilling audience may sometimes tip in favor of the speaker,

requiring the offended listener to turn away. See Erznoznik v.

Jacksonville, 422 U.S. 205. As we noted in Cohen v. California:

"While this Court has recognized that government may properly act in

many situations to prohibit intrusion into the privacy of the home of

unwelcome views and ideas which cannot be totally banned from the

public dialogue . . ., we have at the same time consistently stressed

that `we are often "captives" outside the sanctuary of the home and

subject to objectionable speech.'" 403 U.S., at 21.

The problem of harassing phone calls is hardly hypothetical. Congress

has recently found it necessary to prohibit debt collectors from

"plac[ing] telephone calls without meaningful disclosure of the

caller's identity"; from "engaging any person in telephone

conversation repeatedly or continuously with intent to annoy, abuse,

or harass any person at the called number"; and from "us[ing] obscene

or profane language or language the natural consequence of which is to

abuse the hearer or reader." Consumer Credit Protection Act

Amendments, 91 Stat. 877, 15 U.S.C. 1692d (1976 ed., Supp. II).

28. The Commission's action does not by any means reduce adults to

hearing only what is fit for children. Cf. Butler v. Michigan, 352

U.S. 380, 383. Adults who feel the need may purchase tapes and records

or go to theaters and nightclubs to hear these words. In fact, the

Commission has not unequivocally closed even broadcasting to speech of

this sort; whether broadcast audiences in the late evening contain so

few children that playing this monologue would be permissible is an

issue neither the Commission nor this Court has decided.

29. Even a prime-time recitation of Geoffrey Chaucer's Miller's Tale

would not be likely to command the attention of many children who are

both old enough to understand and young enough to be adversely

affected by passages such as: "And prively he caughte hire by the

queynte." The Canterbury Tales, Chaucer's Complete Works (Cambridge

ed. 1933), p. 58, l. 3276.

APPENDIX TO OPINION OF THE COURT

The following is a verbatim transcript of "Filthy Words" prepared by

the Federal Communications Commission.

Aruba-du, ruba-tu, ruba-tu. I was thinking about the curse words and

the swear words, the cuss words and the words that you can't say, that

you're not supposed to say all the time, [']cause words or people into

words want to hear your words. Some guys like to record your words and

sell them back to you if they can, (laughter) listen in on the

telephone, write down what words you say. A guy who used to be in

Washington knew that his phone was tapped, used to answer, Fuck

Hoover, yes, go ahead. (laughter) Okay, I was thinking one night about

the words you couldn't say on the public, ah, airwaves, um, the ones

you definitely wouldn't say, ever, [']cause I heard a lady say bitch

one night on television, and it was cool like she was talking about,

you know, ah, well, the bitch is the first one to notice that in the

litter Johnie right (murmur) Right. And, uh, bastard you can say, and

hell and damn so I have to figure out which ones you couldn't and ever

and it came down to seven but the list is open to amendment, and in

fact, has been changed, uh, by now, ha, a lot of people pointed things

out to me, and I noticed some myself. The original seven words were,

shit, piss, fuck, cunt, cocksucker, mother-fucker, and tits. Those are

the ones that will curve your spine, grow hair on your hands and

(laughter) maybe, even bring us, God help us, peace without honor

(laughter) um, and a bourbon. (laughter) And now the first thing that

we noticed was that word fuck was really repeated in there because the

word motherfucker is a compound word and it's another form of the word

fuck. (laughter) You want to be a purist it doesn't really it can't be

on the list of basic words. Also, cocksucker is a compound word and

neither half of that is really dirty. The word the half sucker that's

merely suggestive (laughter) and the word cock is a half-way dirty

word, 50% dirty dirty half the time, depending on what you mean by it.

(laughter) Uh, remember when you first heard it, like in 6th grade,

you used to giggle. And the cock crowed three times, heh (laughter)

the cock three times. It's in the Bible, cock in the Bible. (laughter)

And the first time you heard about a cock-fight, remember What? Huh?

naw. It ain't that, are you stupid? man. (laughter, clapping) It's

chickens, you know, (laughter) Then you have the four letter words

from the old Anglo-Saxon fame. Uh, shit and fuck. The word shit, uh,

is an interesting kind of word in that the middle class has never

really accepted it and approved it. They use it like, crazy but it's

not really okay. It's still a rude, dirty, old kind of gushy word.

(laughter) They don't like that, but they say it, like, they say it

like, a lady now in a middle-class home, you'll hear most of the time

she says it as an expletive, you know, it's out of her mouth before

she knows. She says, Oh shit oh shit, (laughter) oh shit. If she drops

something, Oh, the shit hurt the broccoli. Shit. Thank you. (footsteps

fading away) (papers ruffling)

Read it! (from audience)

Shit! (laughter) I won the Grammy, man, for the comedy album. Isn't

that groovy? (clapping, whistling) (murmur) That's true. Thank you.

Thank you man. Yeah. (murmur) (continuous clapping) Thank you man.

Thank you. Thank you very much, man. Thank, no, (end of continuous

clapping) for that and for the Grammy, man, [']cause (laughter) that's

based on people liking it man, yeh, that's ah, that's okay man.

(laughter) Let's let that go, man. I got my Grammy. I can let my hair

hang down now, shit. (laughter) Ha! So! Now the word shit is okay for

the man. At work you can say it like crazy. Mostly figuratively, Get

that shit out of here, will ya? I don't want to see that shit anymore.

I can't cut that shit, buddy. I've had that shit up to here. I think

you're full of shit myself. (laughter) He don't know shit from

Shinola. (laughter) you know that? (laughter) Always wondered how the

Shinola people felt about that (laughter) Hi, I'm the new man from

Shinola. (laughter) Hi, how are ya? Nice to see ya. (laughter) How are

ya? (laughter) Boy, I don't know whether to shit or wind my watch.

(laughter) Guess, I'll shit on my watch. (laughter) Oh, the shit is

going to hit de fan. (laughter) Built like a brick shit-house.

(laughter) Up, he's up shit's creek. (laughter) He's had it.

(laughter) He hit me, I'm sorry. (laughter) Hot shit, holy shit, tough

shit, eat shit, (laughter) shit-eating grin. Uh, whoever thought of

that was ill. (murmur laughter) He had a shit-eating grin! He had a

what? (laughter) Shit on a stick. (laughter) Shit in a handbag. I

always like that. He ain't worth shit in a handbag. (laughter) Shitty.

He acted real shitty. (laughter) You know what I mean? (laughter) I

got the money back, but a real shitty attitude. Heh, he had a

shit-fit. (laughter) Wow! Shit-fit. Whew! Glad I wasn't there.

(murmur, laughter) All the animals Bull shit, horse shit, cow shit,

rat shit, bat shit. (laughter) First time I heard bat shit, I really

came apart. A guy in Oklahoma, Boggs, said it, man. Aw! Bat shit.

(laughter) Vera reminded me of that last night, ah (murmur). Snake

shit, slicker than owl shit. (laughter) Get your shit together. Shit

or get off the pot. (laughter) I got a shit-load full of them.

(laughter) I got a shit-pot full, all right. Shit-head, shit-heel,

shit in your heart, shit for brains, (laughter) shit-face, heh

(laughter) I always try to think how that could have originated; the

first guy that said that. Somebody got drunk and fell in some shit,

you know. (laughter) Hey, I'm shit-face. (laughter) Shit-face, today.

(laughter) Anyway, enough of that shit. (laughter) The big one, the

word fuck that's the one that hangs them up the most. [']Cause in a

lot of cases that's the very act that hangs them up the most. So, it's

natural that the word would, uh, have the same effect. It's a great

word, fuck, nice word, easy word, cute word, kind of. Easy word to

say. One syllable, short u. (laughter) Fuck. (Murmur) You know, it's

easy. Starts with a nice soft sound fuh ends with a kuh. Right?

(laughter) A little something for everyone. Fuck (laughter) Good word.

Kind of a proud word, too. Who are you? I am FUCK. (laughter) FUCK OF

THE MOUNTAIN. (laughter) Tune in again next week to FUCK OF THE

MOUNTAIN. (laughter) It's an interesting word too, [']cause it's got a

double kind of a life personality dual, you know, whatever the right

phrase is. It leads a double life, the word fuck. First of all, it

means, sometimes, most of the time, fuck. What does it mean? It means

to make love. Right? We're going to make love, yeh, we're going to

fuck, yeh, we're going to fuck, yeh, we're going to make love.

(laughter) we're really going to fuck, yeh, we're going to make love.

Right? And it also means the beginning of life, it's the act that

begins life, so there's the word hanging around with words like love,

and life, and yet on the other hand, it's also a word that we really

use to hurt each other with, man. It's a heavy. It's one that you have

toward the end of the argument. (laughter) Right? (laughter) You

finally can't make out. Oh, fuck you man. I said, fuck you. (laughter,

murmur) Stupid fuck. (laughter) Fuck you and everybody that looks like

you. (laughter) man. It would be nice to change the movies that we

already have and substitute the word fuck for the word kill, wherever

we could, and some of those movie cliches would change a little bit.

Madfuckers still on the loose. Stop me before I fuck again. Fuck the

ump, fuck the ump, fuck the ump, fuck the ump, fuck the ump. Easy on

the clutch Bill, you'll fuck that engine again. (laughter) The other

shit one was, I don't give a shit. Like it's worth something, you

know? (laughter) I don't give a shit. Hey, well, I don't take no shit,

(laughter) you know what I mean? You know why I don't take no shit?

(laughter) [']Cause I don't give a shit. (laughter) If I give a shit,

I would have to pack shit. (laughter) But I don't pack no shit cause I

don't give a shit. (laughter) You wouldn't shit me, would you?

(laughter) That's a joke when you're a kid with a worm looking out the

bird's ass. You wouldn't shit me, would you? (laughter) It's an

eight-year-old joke but a good one. (laughter) The additions to the

list. I found three more words that had to be put on the list of words

you could never say on television, and they were fart, turd and twat,

those three. (laughter) Fart, we talked about, it's harmless It's like

tits, it's a cutie word, no problem. Turd, you can't say but who wants

to, you know? (laughter) The subject never comes up on the panel so

I'm not worried about that one. Now the word twat is an interesting

word. Twat! Yeh, right in the twat. (laughter) Twat is an interesting

word because it's the only one I know of, the only slang word applying

to the, a part of the sexual anatomy that doesn't have another meaning

to it. Like, ah, snatch, box and pussy all have other meanings, man.

Even in a Walt Disney movie, you can say, We're going to snatch that

pussy and put him in a box and bring him on the airplane. (murmur,

laughter) Everybody loves it. The twat stands alone, man, as it

should. And two-way words. Ah, ass is okay providing