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Government Regulation of Radio


The FCC v. Pacifica Foundation:

 In 1978 a radio station owned by Pacifica Foundation 
Broadcasting out of New York City was doing a program on contemporary 
attitudes toward the use of language. This broadcast occurred on a 
mid-afternoon weekday. Immediately before the broadcast the station 
announced a disclaimer telling listeners that the program would 
include "sensitive language which might be regarded as offensive to 
some."(Gunther, 1991) As a part of the program the station decided to 
air a 12 minute monologue called "Filthy Words" by comedian George
Carlin. The introduction of Carlin's "routine" consisted of, according 
to Carlin, "words you couldn't say on the public air waves."(Carlin, 
1977) The introduction to Carlin's monologue listed those words and 
repeated them in a variety of colloquialisms:

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. 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. 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 infact, has been changed, 
uh, by now. The original seven words were shit, piss, fuck, cunt, 
cocksucker, motherfucker, and tits. Those are the ones that will curve 
your spine, grow hair on your hands and maybe, even bring us, God help 
us, peace without honor, and a bourbon. (Carlin, 1977)

A man driving with his young son heard this broadcast and reported it 
to the Federal Communications Commission [FCC]. This broadcast of 
Carlin's "Filthy Words" monologue caused one of the greatest and most 
controversial cases in the history of broadcasting. The case of the 
FCC v. Pacifica Foundation. The outcome of this case has had a lasting 
effect on what we hear on the radio.

 This landmark case gave the FCC the "power to regulate radio 
broadcasts that are indecent but not obscene." (Gunther, 1991) What 
does that mean, exactly? According to the government it means that the 
FCC can only regulate broadcasts. They can not censor broadcasts, that 
is determine what is offensive in the matters of speech. Before this 
case occurred there were certain laws already in place that prohibited 
obscenity over radio. One of these laws was the "law of nuisance". 
This law "generally speaks to channeling behavior more than actually 
prohibiting it."(Simones, 1995) The law in essence meant that certain 
words depicting a sexual nature were limited to certain times of the
day when children would not likely be exposed. Broadcasters were 
trusted to regulate themselves and what they broadcast over the 
airwaves. There were no specific laws or surveillance by regulatory 
groups to assure that indecent and obscene material would not be 
broadcast. Therefore, when the case of the FCC vs. Pacifica made its 
way to the Supreme Court it was a dangerous decision for the Supreme 
Court to make. Could the government regulate the freedom of speech? 
That was the ultimate question. Carlin's monologue was speech 
according to the first amendment.(Simones, 1995) Because of this 
Pacifica argued that "the first amendment prohibits all governmental 
regulation that depends on the content of speech."(Gunther, 1991) 
"However there is no such absolute rule mandated by the constitution,"
according to the Supreme Court.(Gunther, 1991) Therefore the question 
is "whether a broadcast of patently offensive words dealing with sex 
and excretion may be regulated because of its content. The fact that 
society may find speech offensive is not a sufficient reason for 
suppressing it."(Gunther, 1991) The Supreme Court deemed that these 
words offend for the same reasons that obscenity offends. They also 
state that "these words, even though they had no literary meaning or 
value, were still protected by the first amendment."(Gunther, 1991) So 
what does this mean to the American public? This decision gave 
government the power to regulate, whereas it did not before.

 Broadcasting, out of all forms of communication, has received 
the most limited protection of the first amendment. There are two main 
reasons why. First, "the broadcast media have established a uniquely 
pervasive presence in the lives of all Americans."(Gunther, 1991) 
Airwaves not only confront the public but also the citizen. They can 
come into our homes uninvited or, you never know what to expect when 
they are invited in. In this case the Court decided that "because the 
broadcast audience is constantly tuning in and out, prior warnings 
cannot completely protect the listener or viewer from unexpected 
program content."(Gunther, 1991) So here's the simple solution, turn 
off the radio. How hard can that be? It's not too difficult but the
Supreme Court decided "to say that one may avoid further offense by 
turning off the radio...is like saying that the remedy for assault is 
run away after the first blow."(Gunther, 1991) 

 The second reason why broadcasting has received limited first 
amendment protection is because "broadcasting is uniquely accessible 
to children, even those too young to read."(Gunther, 1991) Even though 
children at a young age can't read obscene messages, the Carlin 
broadcast could have enlarged a child's vocabulary in a matter of 
seconds. These two important factors of broadcasting gave the Supreme 
Court the push they needed for regulation. The Court decides that "the 
ease with which children may obtain access to broadcast material, 
coupled with the concerns recognized, amply justify special treatment 
of indecent broadcasting."(Gunther, 1991) But does that mean that 
adults have to listen to what is fit for children's ears? Must adults 
now go out and purchase George Carlin's album for entertainment? This
decision might not seem a fair one to most who agree with Carlin's 
message, but according to the Supreme Court it "does not violate 
anyones first amendment rights."(Gunther, 1991) 

 If the government could allow this type of speech to be 
regulated then they must also take into account that regulating 
indecent speech would effect many other integral parts of 
broadcasting. For instance, "these rationales could justify the 
banning from radio a myriad of literary works...they could support the 
suppression of a good deal of political speech, such as the Nixon
tapes; and they could even provide the basis for imposing sanctions 
for the broadcast of certain portions of the bible."(Gunther, 1991) 
Carlin's monologue was speech, there is no doubt about that, and it 
does present a point of view. Carlin tried to show that "the words it 
uses are "harmless" and that our attitudes toward them are essentially 
silly."(Gunther, 1991) They did not object to this point of view but 
did object to the way in which it is expressed. 

 Many people in the United States do not deem these words as 
offensive. In fact many people use these words daily and as a part of 
conversation. "In this context the Court's decision could be seen as 
another of the dominant culture's inevitable efforts to force those 
groups who do not share its mores to conform to it's way of thinking, 
acting, and speaking."(Gunther, 1991) Therefore, the Supreme Court 
looked upon Carlin's monologue as indecent but not obscene. The FCC 
was given the power to regulate the airwaves and prohibit broadcasters 
from promoting "indecent" material over the radio. After the Pacifica 
case the FCC has also extended the ban of indecent as well as obscene 
materials to 24 hours per day. Because of the 24 hour ban the previous 
"law of nuisance" allowing for indecent material to be "channeled"
at certain times of the day was abolished. To promote strong 
regulation against indecent material the FCC has the authority to 
issue fines on broadcasters, whether it be fines in the terms of money 
or suspension of air time. The FCC, or the government, was given the 
ultimate power. The power to regulate what we hear.

 Recently the FCC's authority to regulate broadcasts had been 
challenged once again. Howard Stern, self proclaimed "king of all 
media" and morning show "loudmouth" has given the FCC plenty of 
headaches. In 1987, the FCC introduced a new regulation to 
broadcasters. The regulation stated that "broadcasters could not say 
anything patently indecent or offensive to your community."(Stern, 
1994) Before this broadcasters only had to worry about the "seven 
dirty words". This new rule seemed to lack a specific meaning.
The broadcasting of indecent material was clearly stated and 
understood since the Pacifica case. To say broadcasters could not say 
anything "offensive to your community" just reinforced the idea that 
the government want's to conform people to their way of thinking, 
acting and speaking. 

 As most of us are aware, many communities are dissimilar and 
comprised of many people who might have different outlooks on what 
indecent material would consist of. This new regulation sparked much 
protest against Howard Stern from many communities and individuals 
because the FCC essentially made the "citizen" the watchdog. If one 
person in a community heard Howard Stern, or any broadcaster, say 
something that was offensive to them and reported it to the FCC, the 
FCC was required to take action and administer penalties. With this 
new regulation many watchdog groups and campaigns formed with the
soul purpose to "remove the obscene and indecent Howard Stern from the
airwaves."(Stern, 1995) One with great influence in particular was the
"Morality in America Campaign" headed by a minister from Mississippi 
named Donald E. Wildmon. Mr. Wildmon, famous for these types of 
protests, orchestrated a heavily promoted national letter writing 
campaign to the FCC by sending out flyers to communities across the 
nation. Because of this action the chairman of the FCC, Alfred Sikes, 
took a closer look at Howard Stern and decided that his show was 
indecent and issued the corporation that represents Stern, Infinity 
Broadcasting, a warning. This warning brought publicity to Infinity 
Broadcasting. Ratings soared and revenue was high. Stern became such a 
center of attention that Infinity decided to keep The Howard Stern 
Show running just as it was. Mr. Wildmon's organization still 
pressed on for "morality in America" and caused Howard Stern and 
Infinity Broadcasting to receive more fines than anyone in the history 
of radio, 1.7 million dollars worth. After years of protest and behind 
the scenes disputes Infinity Broadcasting paid the 1.7 million dollars 
in fines to the FCC on September 3, 1995. The FCC's authority was 
boldly challenged by Howard Stern and the fines sent a clear message 
to other broadcasters that the FCC would not tolerate indecent 
material over the airwaves. Even though Stern's material was 
considered indecent by the FCC, they could not stop it. The FCC can 
only regulate it. Howard Stern's message might be indecent; however,
it is still protected by the first amendment.

 The outcome of the FCC v. Pacifica Foundation gave the FCC 
"the power to regulate radio broadcasts that are indecent but not 
obscene."(Gunther, 1991) We could look at this power given to the FCC 
as an infringement of our first amendment rights. Should Americans let 
the government regulate what we here or say on our public airways? Or 
should we place "the responsibility and the right to weed worthless 
and offensive communications from the public airways in a public free 
to choose those communications worthy of its attention from a 
marketplace unsullied by the censor's hand."(Gunther, 1991)
 One could interpret this to mean the government might feel 
that we are not responsible enough to do this for ourselves. But I 
believe; however, that if a certain amount of regulation is not 
applied things could very easily get out of control. If the "seven 
dirty words" were allowed to be said on the airwaves at any time of 
the day then others might find reason for openness in many other 
regulated activities such as pornography, or nudity and open language 
policies on television. A step in this direction for our society is
the wrong step. We have had these regulations in place for a number of 
years now and it would be devastating in this day and age to allow 
this type of openness, especially with the problems we are facing in 
our communities with violence and children. However, I also think that 
the "seven dirty words" are just in fact what they are, words. "Carlin 
is not mouthing obscenities, he is merely using words to satirize as 
harmless and essentially silly our attitudes towards those 
words."(Gunther, 1991) I do understand that words that are common in 
one setting might be offensive in another. Because I hear these words 
often I do not take offense to them. Although, if I had children I 
would not want them to hear these words over public airways or repeat 
them. It is important though that the parents, not the government, 
have the right to raise their children. 

 I believe that the government should have let the "law of 
nuisance" stand. Channeling this type of material in hours where 
children are not exposed would be the right decision. We have created 
an even stronger taboo concerning these words by letting them be 
regulated and now we are stuck with that. Freedom of speech is an 
important thing and even the slightest bit of regulation could have 
drastic results. People wanting to see morality in America is fine, 
but what is this morality? Who set the standards for morality? Our 
morality has changed over the years and is still changing daily. I do 
not think these words have anything to do with morality. These are 
just words that were assigned to bad intentions and bad thoughts. Is 
it moral that we let our government decide what we hear or say. I 
believe that's the greatest immoral act of all.


Gunther, G. (1991). Constitutional Law. Twelfth Edition. New York: The
Foundation Press, Inc. pp. 1154-1161.

Carlin, G. (1977). Class Clown. "Filthy Words" monologue. Atlantic
Records, Inc.

Simones, A. (1995). Lecture on FCC v. Pacifica Foundation. October 27,
1995. Constitutional Law, Southwest Missouri State University. 

Stern, H. (1994). Private Parts. New York: Simon & Schuster Inc.

Stern, H. (1995). Miss America. New York: Regan Books.



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