Developing an Indecency Standard: The Federal Communications Commission and the Regulation of Offensive Speech, 1927-1964

Article excerpt

In 1975, the Federal Communications Commission defined indecency as language that describes, in terms patently offensive by contemporary community standards for the broadcast medium, sexual or excretory organs or activities at times when there is a risk that children may be in the audience.(1) The definition resulted from the case, In re Citizen 's Complaint Against Pacifica Foundation, which involved a monologue entitled "Filthy Words" by comedian George Carlin. The twelve-minute monologue(2) was aired by station WBAI, New York, as part of an hour-long program that discussed society's attitudes toward language.(3) In the monologue Carlin repeated seven words that were inappropriate for broadcast.(4) The FCC Pacifica decision was appealed all the way to the U.S. Supreme Court. In 1978, the Court issued its FCC v. Pacifica Foundation decision.(5)

In Pacifica, the Court upheld the FCC's power to regulate indecent programs and channel them to late evenings, when children were less likely to be a part of the audience. A plurality of the Court said that Carlin's "filthy" words were not essential for the exposition of ideas and that given the "unique" pervasiveness of the broadcast media and their accessibility to children, the First Amendment tolerated the regulation of indecent speech.(6)

Broadcast historians and mass communication law scholars regard Pacifica as the landmark case in the regulation of indecency, and rightfully so. However, the FCC has been dealing with the issue of how to regulate offensive speech-which in 1970 was finally labeled "indecent"--since 1935.(7)

The story of how the FCC regulated offensive programming in its early years and how the agency eventually developed its indecency standard has never been documented. And yet, the regulation of indecency has become one of the most controversial issues that the FCC has ever faced.(8)

While scholars have not ignored the issue of indecency regulation, few have examined the origins and the evolution of this legal concept.(9) Thus, this article will chronicle broadcasters' self-regulatory attempts to eliminate offensive programming before the FCC was created; Congress's calls on the FCC to punish broadcasters who aired offensive material; and the administrative steps the FCC took to penalize broadcasters who did air offensive material. The article will also discuss how by 1964--almost one decade prior to its Pacifica decision--the FCC had begun to articulate a rationale that would justify the regulation of offensive material and which eventually evolved into the current indecency standard.(10)

Statutory Prohibitions

Section 29 of the Radio Act of 1927 provided that "no person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication."(11) This prohibition was transferred to the 1934 Communications Act, which created the FCC, as section 326.(12) In 1948 the anti-obscenity, indecency, or profanity clause was incorporated into Title 18 of the U.S. Code, Section 1464, as part of a reorganization of the U.S. Criminal Code.(13) While the 1927 and 1934 versions of the statute specifically prohibited the use of obscene, indecent, or profane language, the 1948 version stated that "whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years or both."(14)

Congress intended for the Federal Radio Commission FRC or Commission), and later the Federal Communications Commission (FCC or Commission), to be the watchdog of the airwaves, but it restricted the agency's authority. Even though Section 29--and Section 326--provided that no obscene, indecent, or profane language should be broadcast, the same section denied the Commission any censorship power.(15) Consequently, the Commission had to walk the thin line of regulating indecent speech without totally eliminating the broadcast of offensive or controversial messages. …