Censoring Indecency on the Radio Threatens Free Speech

Jonathan D. Wallace

Jonathan D. Wallace, a lawyer and software company executive, is the coauthor of Sex, Laws, and Cyberspace. In the following selection, he examines the 1978 case of Pacifica Foundation v. FCC, in which the Supreme Court permitted the censorship of obscene words on radio broadcasts. Wallace describes the incident and lawsuit that led to the decision and the Supreme Court's reasoning that the "pervasiveness" of radio broadcast justified government censorship to protect children from obscene and offensive language. Wallace argues that the Supreme Court's reasoning in Pacifica could be used to justify censorship in other areas and may well threaten free speech on the Internet.

Source

Jonathan D. Wallace, "Pervasive Problem," Reason, October 1998. Copyright © 1998 by the Reason Foundation, 3415 S. Sepulveda Blvd., Suite 400, Los Angeles, CA 90034, www.reason.com. Reproduced by permission.

Primary Source Text

On a Tuesday afternoon in October 1973, a motorist in the New York area tuned his radio to WBAI-FM and heard a 12-minute monologue by comedian George Carlin entitled "Filthy Words." The routine, included on Carlin's record Occupation: Foole, had been taped during a live performance in California. The topic was the "words you couldn't say on the public airwaves, the ones you definitely wouldn't say, ever." Carlin began by listing the seven words designated by the FCC as unacceptable for broadcast media. . . . "These 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." The driver who happened upon Carlin's monologue, later described in court records as accompanied by his "young son," wrote a letter of complaint to the Federal Communications Commission. His was the only complaint received about the Carlin broadcast. Although the court records did not say so, the driver was a board member of Morality in Media who was visiting the New York area from his home in Florida, and his "young son" was 15 years old.

The FCC responded by placing a letter of sanction in its file for the Pacifica Foundation, which operated WBAI. Pacifica challenged the action on First Amendment grounds, and the case wended its way up to the Supreme Court, which issued a fragmentary and confusing decision in July 1978. Supporting the FCC's authority to regulate "indecent" speech on the airwaves, the Court emphasized that radio broadcasts "pervade" people's homes and may be heard by unattended children. It thereby introduced a new and controversial doctrine into American constitutional law: Government may regulate a communications medium because of its "pervasiveness."

Most commentators originally thought Pacifica Foundation v. FCC, destined to be known as "the seven dirty words case," applied only to broadcast media. But in his 1983 book Technologies of Freedom, communications scholar Ithiel de Sola Pool argued that the pervasiveness doctrine could be used to justify "quite radical censorship." He was right. In recent years, Pacifica has been cited by the Supreme Court in a case upholding restrictions on cable TV, and it was the foundation for the Communications Decency Act, which attempted to regulate speech on the Internet.

When the Supreme Court overturned the CDA in the 1997 case ACLU v. Reno, it did not reject the pervasiveness doctrine. Instead, it held that the Internet is not pervasive. But this finding was based on such narrow grounds that it is bound to be undermined by technological developments. Furthermore, if the logic of the pervasiveness doctrine were applied consistently, even the print media would not be safe from censorship. As long as Pacifica remains the law, defenders of free speech, online or off, cannot rest easy.

Pornography, Obscenity, and Indecency

To understand what happens when the government tries to protect us against "indecency" in "pervasive" media, it is important to recognize how broad that category of speech is. Although many people use the words pornography, obscenity, and indecency interchangeably, the law understands them very differently. Pornography is a popular term with no legal meaning. Obscenity, as defined by the Supreme Court in the 1973 case Miller v. California, is patently offensive, prurient material, lacking significant scientific, literary, artistic, or political ("SLAP") value. The Miller standard has been used almost exclusively against distributors of hardcore visual material—pictorial magazines and videos—that lack perceived SLAP value. Indecency, by contrast, is "patently offensive" material that may have significant SLAP value, and it need not include pictures. Historically, indecency laws in the United States were used to prosecute writers and publishers of controversial novels (including the works of Balzac, Tolstoy, Zola, and Joyce), along with early crusaders for women's sexual independence, abortion rights, and birth control.

The main justification for indecency laws has always been protecting children. The Supreme Court has repeatedly held that unlike obscenity, which is considered outside the scope of First Amendment protection, indecent material cannot be banned. It can only be "channeled"—regulated so that it is kept away from children. In Butler v. Michigan, a 1957 decision overturning a state ban on indecent literature, the Court said adults cannot be reduced to reading "only what is fit for children." Writing for the majority, Justice Felix Frankfurter said to ban indecency for the sake of children is "to burn the house to roast the pig."

The question in Pacifica was whether the restrictions on broadest indecency, like the ban at issue in Butler, impermissibly infringed on the freedom of adults. The Supreme Court was reassured by the fact that the FCC's regulations, unlike the Michigan law, did not carry criminal sanctions. The consequence of Pacifica's infraction was not a prison term or even a fine—just a letter of reprimand (which could, in theory, affect the FCC's willingness to renew the station's license). The Court's concerns were also allayed by the narrowness of the FCC's "seven dirty words" rule. The majority argued that speakers could always find another vocabulary to express the same ideas.

Shock Jocks

The broadcast industry took this statement as an invitation. The 1980s and '90s saw the proliferation of "shock jocks": loud, crude (and highly popular) radio hosts—typified by Howard Stern—who frequently found ways to talk about sex without using the seven dirty words. In response, the FCC broadened its definition of indecency to include suggestive language that didn't use any of the original seven dirty words. Beginning in 1986, indecency was defined as "patently offensive" language describing sexual or excretory acts or organs. In 1988 Congress tried to ban broadcast indecency entirely, but the Supreme Court, consistent with its ruling in Butler, said that approach went too far. Instead, the FCC continued to "channel" broadcast indecency by restricting it to the late evening and early morning (10 p.m. to 6 a.m.), when children were less likely to be listening or watching.

With the broader definition of indecency in place, listener complaints investigated by the FCC increasingly dealt with sexual insinuations. Infinity Broadcasting, the syndicator backing Howard Stern, was fined millions of dollars for some of his excesses, including a show featuring a man who played the piano with his penis (on the radio, remember) and Stern's comment that "the closest I ever came to making love to a black woman was masturbating to a picture of Aunt Jemima."

But speech need not be frivolous to be considered indecent. Flipping channels as a teenager, I came across a PBS documentary about breast cancer that ended with a brief sequence of a woman examining her breast. Nothing in the FCC's indecency regulations excludes the possibility that a television station could be sanctioned, or have its license renewal application denied, for broadcasting such a documentary. Broadcasters have to rely on the good sense and forbearance of FCC bureaucrats to protect socially valuable speech.

That is bound to have a chilling effect on programming, because broadcasters have to anticipate what the FCC will consider indecent, and even material with a serious point can run afoul of the rules. In 1989, for example, the FCC fined a Miami radio station for playing the Uncle Bonsai song "Penis Envy," a satire of macho attitudes. It has also found excerpts from the critically acclaimed play Jerker, in which two gay men discuss their sexual fantasies over the telephone, to be indecent. Social conservatives have even suggested FCC action against TV news coverage showing Madonna's "Justify My Love" video and sexually explicit photographs by Robert Mapplethorpe—both of which were aired precisely because they had been subjects of controversy.

Even the old definition of indecency went beyond gratuitous profanity. Carlin, after all, was making a political statement by mocking the very system of regulation that made it illegal to air his monologue. Justice William Brennan dissented from the Pacifica decision because its rationale "could justify the banning from radio of a myriad of literary works, novels, poems and plays by the likes of Shakespeare, Joyce, Hemingway." He noted that Pacifica would allow the suppression of political speech "such as the Nixon tapes" and could even result in sanctions for broadcasting portions of the Bible. In particular, he cited I Samuel 25:22, where King David threatens Nabal, a wealthy man who has treated his messengers rudely: "So and more also do God unto the enemies of David, if I leave of all that pertain to him by the morning light any that pisseth against the wall."

The Pervasiveness Doctrine

If the concept of indecency is disturbingly elastic, so is the idea of pervasiveness. The puzzling thing about the Supreme Court's invention of the pervasiveness doctrine in Pacifica is that it was not necessary to resolve the case. For half a century, the government's power to regulate broadcasting had been based on the idea of "spectrum scarcity": Since there are a limited number of frequencies available for broadcasting on "the public airwaves," the government must decide who gets to use them, and it may attach conditions to that privilege. Critics of this doctrine have long argued that it does not justify a lower level of First Amendment protection for broadcasting, since all media, including books and newspapers, use scarce resources. Yet the Court has repeatedly relied on the spectrum scarcity argument, and it could have done so again in Pacifica.

Instead, the Court declared that "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." For nearly two decades, no one really knew what to make of the pervasiveness doctrine. Was "pervasiveness" a feature only of a "scarce" medium, such as radio or television? Or could other media, such as cable TV and online services, be regulated as pervasive?

Two centuries of case law had finally established that any idea may be explored in print, no matter what language is used. Under those precedents, no law could ban the use of the seven dirty words in this article or in any publication, scholarly or frivolous. It might seem to be a matter of common sense that every medium would be granted the same protection. Why should technical distinctions be the basis for different treatment under the First Amendment? . . .

In the 1996 case Denver Area Telecommunications Consortium v. FCC, the Court ruled that cable television, though not "scarce," is "pervasive." The case involved a federal law requiring cable providers either to ban indecent programming or to block it, delivering it only to viewers who request it. Justice Stephen Breyer, writing for the plurality, approvingly summarized Pacifica's finding that "the broadcast media have established a uniquely pervasive presence in the lives of all Americans" and that "patently offensive, indecent material . . . confronts the citizen, not only in public, but also in the privacy of the home." Such exposure, he said, was "generally without sufficient prior warning to allow the recipient to avert his or her eyes or ears." Several other justices relied on Pacifica in their concurring opinions. Only Justice Clarence Thomas took a clear stand against differentiating cable from print media. "The text of the First Amendment," he noted, "makes no distinction between print, broadcast, and cable media."

Commentators had long wondered why cable TV should be treated differently than broadcast TV, when the experience of watching them is essentially the same. Why should it matter, for First Amendment purposes, if the image is delivered to the house via the airwaves or over a cable? Denver seemed to give the Court's answer: It doesn't.

The Communications Decency Act

But this meant we were now facing the possibility of the "quite radical censorship" de Sola Pool had predicted. The next logical question was why it should matter if the same images or words are delivered to the house via the Internet. Congress did not think it should: With the Communications Decency Act of 1996, it applied the FCC's indecency standard to the Internet, establishing a penalty of up to two years in prison and a $100,000 fine for each violation. The law's proponents relied heavily on Pacifica and the pervasiveness argument to justify the legislation. Sen. Dan Coats (R-Ind.), one of the CDA's main sponsors, said during congressional debate in June 1995, "The Internet is like taking a porn shop and putting it in the bedroom of your children and then saying, 'Do not look.'" . . .

A special three-judge federal panel in Philadelphia conducted a trial on the law's constitutionality in the winter and spring of 1996. . . .

The three Philadelphia judges were unanimous in deciding that the CDA was unconstitutional and that the Internet was entitled to extensive First Amendment protection. Each wrote a separate concurring opinion. In his, Judge Stewart Dalzell addressed the question of whether Pacifica applied to the Internet. . . . He concluded that "time has not been kind to the Pacifica decision. Later cases have eroded its reach, and the Supreme Court has repeatedly instructed against overreading the rationale of its holding."

But in a footnote, Dalzell wisely offered a second, independent argument against applying Pacifica to the Internet: "Operation of a computer is not as simple as turning on a television, and the . . . assaultive nature of television . . . is quite absent in Internet use. . . . The Government may well be right that sexually explicit content is just a few clicks of a mouse away from the user, but there is an immense legal significance to those few clicks."

A year later, the Supreme Court agreed that the CDA was unconstitutional—and that the Internet is not pervasive. Quoting the Philadelphia opinions, the Court noted that "the receipt of reformation on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial." The Court added that "the Internet is not as 'invasive' as radio or television."

It was the right result, but it was based on unstable ground. In future trials, the supporters of censorship will do everything they can to show that indecent Internet content can spring out at unsuspecting children. . . . And as the boundaries between the Internet and television continue to erode, with more and more people getting wired and increasingly high-quality video programming available online, the analogy between the media will become harder to resist. The Court has not overruled its ill-considered holding in Pacifica. It has simply found a flimsy technical excuse for not applying it to the Internet.

Nor does the potential reach of the pervasiveness doctrine end with the Internet. Author Wendy McElroy, former president of Feminists for Free Expression, comments: "Taken to its logical conclusion, the pervasiveness argument would prohibit anyone standing on a public street from discussing . . . controversial matters. The open air might well transmit the discussion through the open windows of nearby houses, businesses, and apartments. One might reply, 'Let them close the window.'"

In Pacifica, the Court failed to explain why books and magazines are not pervasive. Previous generations of American children saw their first nude image not on the Internet or cable TV but in the pages of a Playboy found in Dad's closet. As Justice Brennan pointed out, a child flipping through the pages of the Bible is apt to stumble across a passage pertaining to excrement, urination, rape, or incest. The danger of the pervasiveness doctrine is a matter of simple logic: If the pervasiveness of a medium is an excuse for censorship, and all media are pervasive, all media can be censored.

"Taken literally," says Washington, D.C., attorney and First Amendment specialist Robert Corn-Revere, "the pervasiveness doctrine empowers government to exert greater control over a medium of communication to the extent it is universally available and influential. By this logic, the printing press should be subject to intensive regulation, since few media are as pervasive as print. Such reasoning is antithetical to the First Amendment."

The operative metaphor for freedom of speech in the United States was formulated eight decades ago by Oliver Wendell Holmes. Dissenting from the Supreme Court's decision in Abrams v. United States, he wrote: "The ultimate good desired is better reached by free trade in ideas. . . . The best test of truth is the power of thought to get itself accepted in the competition of the market." In the marketplace of ideas. every medium strives to be pervasive, and so does every idea communicated in those media. The First Amendment rule book says speakers should compete to make their messages as pervasive as possible. Pacifica penalizes the winners.