Federal Communications Commission v. Pacifica Foundation

438 U.S. 726 (1978)

Quick Summary

Pacifica Foundation (plaintiff) broadcast a controversial monologue by George Carlin, which led to a complaint and subsequent FCC (defendant) sanctions for indecency. The dispute centered on whether such broadcasts could be regulated without infringing on First Amendment rights.

The Supreme Court concluded that the FCC could regulate indecent content in broadcasting, particularly when accessible to children, thus upholding the sanctions against Pacifica for the afternoon broadcast of Carlin’s monologue.

Facts of the Case

The Pacifica Foundation (plaintiff) broadcast a monologue by comedian George Carlin on one of its radio stations. The monologue included a repetition of seven specific words that Carlin had listed as words not to be used on public airwaves. The broadcast, which aired in the afternoon, was heard by a man driving with his young son, who then complained to the Federal Communications Commission (FCC) (defendant).

The FCC, tasked with regulating public airwaves, found the broadcast to be ‘indecent’ and subject to sanctions, though not obscene, under the statutes 18 U.S.C. § 1464 and 47 U.S.C. § 303(g). Pacifica challenged this ruling, arguing that it was protected satire and not subject to sanctions.

The issue centered around the FCC’s authority to regulate public broadcasts that may be indecent but not obscene, and whether such regulation infringed upon First Amendment rights. The case escalated through the court system as Pacifica contested the FCC’s decision on constitutional grounds.

Procedural Posture and History

  1. Pacifica Foundation broadcast George Carlin’s monologue containing explicit language.
  2. A complaint was filed with the FCC by a listener.
  3. The FCC deemed the broadcast indecent and subject to sanctions.
  4. Pacifica challenged the FCC’s ruling in federal district court on First Amendment grounds.
  5. The district court upheld the FCC’s decision, but the court of appeals reversed it.
  6. The Supreme Court granted certiorari to review the case.

I.R.A.C. Format


Whether the FCC has any power to regulate a radio broadcast that is indecent but not obscene.

Rule of Law

The Federal Communications Commission has the authority to regulate indecent broadcasting under 18 U.S.C. § 1464, which prohibits obscene, indecent, or profane language by means of radio communication, and under 47 U.S.C. § 303(g), which mandates the FCC to encourage effective radio use in the public interest.

Reasoning and Analysis

The Supreme Court considered the unique nature of broadcasting and its pervasive presence in American life. It acknowledged that while the content of speech is protected by the First Amendment, not all forms of speech have absolute protection in every context.

The Court differentiated between obscenity, which is not protected, and indecency, which may be regulated in certain contexts such as when children are likely to be in the audience. The Court also addressed concerns about censorship and clarified that post-broadcast sanctions are not equivalent to prohibited censorship under 47 U.S.C. § 326.

The Court upheld the FCC’s authority to regulate indecent broadcasts, particularly when such broadcasts are accessible to children. It reasoned that the government has an interest in protecting children from exposure to certain language and that this interest justifies some content-based regulation of speech in the context of broadcasting.


The Supreme Court ruled that the FCC does have the power to regulate indecent but not obscene language on public airwaves, especially during times when children are likely to be in the audience. The Court upheld the FCC’s determination that Carlin’s monologue was indecent as broadcast and therefore subject to regulation.

Key Takeaways

  1. The FCC can regulate public broadcasts containing indecent language under specific statutes.
  2. Content-based regulation of speech is permissible in broadcasting due to its pervasive presence and accessibility to children.
  3. Indecent speech is not outside First Amendment protection but may be regulated differently depending on context and setting.

Relevant FAQs of this case

What legal principles guide the regulation of speech content depending on the audience it reaches?

When regulating speech content, legal principles consider the context in which the speech is made and the potential audience. The government’s interest in protecting certain groups, such as children from exposure to indecent material, may justify content-based regulation of speech. This means that some speech, while not outright banned, can be limited in certain public mediums like broadcasting during times when children are likely to be part of the audience.

  • For example: Implementing a watershed policy where adult content is only broadcasted after late evening hours when children are unlikely to watch.

How do regulators distinguish between 'indecent' and 'obscene' speech under the law?

Regulators differentiate ‘indecent’ from ‘obscene’ speech based on established legal standards. Indecent speech is offensive content that does not meet the high threshold for obscenity. Obscene material, legally defined by the Miller test, must satisfy three criteria: appeal to prurient interests, depict (or describe) sexual conduct in a patently offensive way, and lack serious literary, artistic, political, or scientific value. Indecency offers more leeway for regulatory action focused on time, place, and manner restrictions.

  • For example: A daytime airing of a sexually explicit scene might be classified as ‘indecent’ while one lacking any artistic value and designed solely for eliciting arousal could be ‘obscene’.

In what scenarios might First Amendment protections for free speech be limited by the government?

First Amendment protections for free speech can be limited in scenarios where the government has a compelling interest, such as ensuring public safety, protecting children from harmful materials, or maintaining public order. Restrictions may also apply where speech falls into categorically unprotected forms, like obscenity or fighting words. Any limitations must be narrowly tailored to serve these interests without unnecessarily infringing on freedom of expression.

  • For example: Establishing ‘free speech zones’ during public events to balance individuals’ right to protest with security concerns and public order.


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