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.