John Paul Stevens

“ 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. [19] 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, 77 S.Ct. 1304, 1 L.Ed.2d 1498. 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. ”

“ 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.
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. ”

“ 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. ”

“ 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.↑ 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. ”

“ 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.” ”

“ 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.
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 *748 context in order to determine whether the Commission's action was constitutionally permissible. ”

“ 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 [p745] 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. ”

“ In its response, Pacifica explained that the monologue had been played during a program about contemporary society's attitude toward language 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.” ”

“ 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, 91 S.Ct., at 1786. 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. ”

“ 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.” ”

“ Then you have the four letter words from the old Angle-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. ”

“ No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication.” 44 Stat. 1172-1173.
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. ”

“ 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? ”

“ 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. ”

“ Indeed, we may assume, arguendo, that this monologue would be protected in other contexts. Nonetheless, [p747] the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context. [23] 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. ”

“ Post Office Dept., 397 U.S. 728 [90 S.Ct. 1484, 25 L.Ed.2d 736] (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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. [10] 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, 89 S.Ct. 1190, 22 L.Ed.2d 459. 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. ”