Potter Stewart

“ The statute pursuant to which the Commission acted, 18 U.S.C. § 1464 (1976 ed.) , [3] makes it a federal offense to utter “any obscene, indecent, or profane language by means of radio communication.” The Commission held, and the Court today agrees, that “indecent” is a broader concept than “obscene” as the latter term was defined in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, because language can be “indecent” although it has social, political, or artistic value and lacks prurient appeal. ”

“ But it disregards one important application of this salutary principle-the need to construe an Act of Congress so as to avoid, if possible, passing upon its constitutionality. [1] It is apparent that the constitutional questions raised by the order of the Commission in this case are substantial. [2] Before deciding them, we should be certain that it is necessary to do so. ”

“ To the contrary, I think that “indecent” should properly be read as meaning no more than “obscene.” **3056 Since the Carlin monologue concededly was not “obscene,” I believe that the Commission lacked statutory authority to ban it. Under this construction of the statute, it is unnecessary to address the difficult and important issue of the Commission's constitutional power to prohibit speech that [p779] would be constitutionally protected outside the context of electronic broadcasting. ”