Government Regulation Of Radio Essay, Research Paper

The FCC v. Pacifica Foundation:

GOVERNMENT REGULATIONS ON RADIO BROADCASTING

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.

—

References

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.