The infamous “seven dirty words” case, FCC v. Pacifica Foundation, which marked the beginning of the FCC’s campaign to keep colorful language and George Carlin off the airwaves, has long begged reconsideration. Fortunately, the Federal Communications Law Journal has recently published Professor Angela Campbell’s Pacifica Reconsidered: Implications for the Current Controversy Over Broadcast Indecency.
However, more important than analyzing landmark jurisprudence that has influenced decades of the most pervasive expression nationwide, the article commemorates allmediaLP’s editor’s first appearance in a scholarly journal.
Professor Campbell graciously acknowledged me in the article for my research assistance, and though my name may be footnoted, I am officially in a law journal.
“[Professor Campbell] also thanks. . . James Kleier, Jr. for [his] research assistance.”
The Lexis Summary:
In 2009, the Supreme Court upheld the FCC’s finding in Fox TV Stations v. Federal Communications Commission that the broadcast of “fleeting expletives” violated a federal law prohibiting the broadcast of indecency, but remanded the case for consideration of the broadcast networks’ claims that the FCC action violated the First Amendment. On remand, the Second Circuit found that the FCC’s prohibition against “fleeting expletives” was unconstitutionally vague. It is widely expected that the Supreme Court will review this decision and that the networks will ask the Court to reconsider its 1978 decision in Pacifica Foundation v. Federal Communications Commission. This Article reexamines the Pacifica case, using papers of some of the Justices who decided the case and interviews with some of the participants. It traces how the FCC came to issue a declaratory order in 1975 finding that the radio broadcast of George Carlin’s “Seven Dirty Words” violated the same federal law at issue in the Fox case. It explains how, to the surprise of many observers at the time, the FCC successfully defended its action against a First Amendment challenge in the Supreme Court by portraying its order as a narrow ruling applicable only to the specific facts of that case. Nonetheless, Pacifica came to be understood as establishing a broadly applicable rule prohibiting the broadcast of “indecent” content when children are likely to be in the audience. The Article concludes that while Pacifica does not compel a ruling either way on the constitutional question in the Fox, the history of the Pacifica case suggests that individual adjudications, such as those in Fox and CBS, are not good vehicles for setting forth policy with regard to broadcast indecency.
Professor Campbell’s abstract:
This article tells the story behind the Pacifica decision, which found the FCC acted consistently with the First Amendment in finding that the broadcast of George Carlin’s monologue “Seven Dirty Words” violated federal law prohibiting indecent broadcasts, and considers the implications of Pacifica for two cases recently remanded by the Supreme Court. The issues on remand in the Fox and CBS cases are whether Pacifica justifies the FCC’s reprimand of stations for airing “fleeting expletives” and “fleeting nudity” and whether Pacifica remains good law in light of legal and technological changes. To tell the story of Pacifica, I researched the available Court papers of the Justices who decided the case and interviewed many of the participants. I explain how and why the FCC utilized a single complaint to establish a broadly applicable rule prohibiting the broadcast of “indecent” content when children are in the audience and then successfully defended its action in the Supreme Court by portraying it as a narrow ruling applicable only to the specific facts of that case. I argue that the Pacifica decision does not compel a ruling either on the constitutional question in the Fox and CBS cases. I also find that the FCC’s practice of establishing rules in adjudications rather than through rulemaking creates uncertainty and chills broadcast speech.
A pdf of the article can be found here.
Despite my obvious bias, I strongly recommend that anyone interested in FCC regulation of the content of speech (and anyone upset that the FCC can ban language, impose procedural costs on broadcasters, and deny the public the pleasure of hearing proper swearing) pick up the article.
Angela J. Campbell, Pacifica Reconsidered: Implications for the Current Controversy Over Broadcast Indecency, 63 Fed. Comm. L.J. 195-260 (2010).
