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.
- supreme court,
- federal communications commission,
Available at: http://works.bepress.com/angela_campbell/2/