Pronouncements of the U.s. Supreme Court Relating to the Criminal Law Field: 1977-1978

JurisdictionUnited States,Federal
CitationVol. 7 No. 9 Pg. 1556
Publication year1978
7 Colo.Law. 1556
Colorado Lawyer

1978, September, Pg. 1556. Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1977-1978


Vol. 7, No. 9, Pg. 1556

Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1977--1978

by Justice William H. Erickson


Justice William H. Erickson, Denver, is Associate Justice of the Colorado Supreme Court.



1. Community Standards

Pinkus, dba Rosslyn News Co., et al. v. United States, _____ U.S. _____, _____ S.Ct. _____, _____ L.Ed.2d _____, 46 U.S.L.W. 4479 (1978)

Petitioner was convicted of mailing obscene materials and advertising brochures for such materials in violation of 18 U.S.C. § 1461. In its charge to the jury, the District Court judge instructed them to consider children, sensitive persons, and deviant groups in determining "community standards." The jury was also given a pandering instruction which they could use if they found the case to be close under the three-part test in Roth v. United States, 354 U.S. 476 (1957), and Memoirs v. Massachusetts, 383 U.S. 413 (1966). The Court of Appeals affirmed the conviction. The Supreme Court, per Chief Justice Burger, reversed and remanded.

The Supreme Court held that in a case where children were not the intended recipients of the obscene material, they are not to be included as part of the "community" when determining "community standards." By doing so, the average standard of the community would be much lower than if only adults are considered. However, sensitive adult members of the community may be considered. The jury must view the community as a whole. This includes both the highly sensitive and the highly tolerant. Deviant groups may also be considered in determining the standard. Although the Court have reserved judgment in the past as to whether expert testimony is required to inform the jury of the prurient appetites of deviant groups, they found the instruction acceptable because the government did present expert testimony which, combined with the exhibits themselves, sufficiently guided the jury.

The Court reaffirmed their prior holdings in Ginzburg v. United States, 383 U.S. 463 (1966), and Splawn v. California, 431 U.S. 595 (1977), that pandering is relevant to a determination of obscenity. The opinion pointed out that the pandering instruction in this case did not remove any discretion from the jury in their determination of obscenity. It permitted the jury to consider pandering as a factor if the case was close.

Justice Stevens concurred, but expressed his disagreement with the present state of obscenity law.


Justice Brennan, joined by Justices Stewart and Marshall, concurred in the judgment reversing the conviction, but stated that the case should not be remanded because the statute is overbroad and unconstitutional on its face.

Justice Powell dissented on the ground that whereas the instruction as to children should not have been given, it was harmless error.

2. FCC Regulation of "Indecent" Broadcast
Federal Communications Commission v. Pacifica Foundation, _____ U.S. _____, _____ S.Ct. _____, _____ L.Ed.2d _____, 46 U.S.L.W. 5018 (1978)

Petitioner (FCC), acting on a complaint from a private individual, issued a Declaratory Order under 18 U.S.C. § 1464 against respondent. It held that respondent's daytime broadcast of an "indecent," but non-obscene, monologue entitled "Filthy Words" "could have been the subject of administrative sanctions." No sanctions were imposed, but the FCC did state that the order would be considered in connection with respondent's application for renewal of its license if any further complaints were received. By way of clarification, the FCC issued a follow-up opinion in which it pointed out that it "sought to channel [indecent broadcasts] to times of day when children most likely would not be exposed to it." The Court of Appeals reversed. One judge found the order an act of censorship prohibited by § 326 of the Communications Act, 47 U.S.C. § 326, and, alternatively, unconstitutionally overbroad. Another judge concluded that § 1464 covered only language that was obscene or otherwise unprotected by the First Amendment. The Supreme Court, in a five to four decision delivered by Justice Stevens, reversed.

The Court noted that the FCC's order was confined to the monologue, "as broadcast." Accordingly, the focus of the review was to be limited to the FCC's determination that the daytime broadcast of the monologue was indecent. (The transcript of "Filthy Words" is an appendix to the opinion.) Initially it was found that the FCC's action was not censorship as prohibited by § 326. That statute only denies the FCC the power to edit proposed broadcasts prior to being aired. When considering a license renewal application, however, the FCC has an "undoubted right" to take note of the content of past programming without offending § 326. See Trinity Methodist Church, South v. Federal Radio Commission, 62 F.2d 850, 851 (CADC 1932); KFKB Broadcasting Association v. Federal Radio Commission, 47 F.2d 670, 672 (CADC 1931).

The Court upheld the FCC's conclusion that the monologue was "indecent" under § 1464, rejecting respondent's contention that the word has the same meaning as "obscene." Neither the legislative history or plain meaning of the statute nor the prior decisions of the Court support such a construction. The case of Hamling v. United States, 418 U.S. 87 (1974), holding that the word "indecent"---as used in 18 U.S.C. § 1461-had the same meaning as "obscene," was distinguished on the grounds that § 1461 dealt with the mailing of material as opposed to broadcasting it publicly. "It is unrealistic to assume that Congress intended to impose precisely the same limitations on the dissemination of patently offensive matter by such different means."

The Court also rejected respondent's assertion that the FCC's construction of § 1464 is overbroad, even if constitutionally applied to the monologue, under Broadrick v. Oklahoma, 413 U.S. 601 (1973). Because the review in this case is limited to a particular broadcast which involved patently offensive sexual and excretory speech, the application of an analysis as extreme as the Broadrick over-breadth doctrine was found inappropriate. The FCC's order, issued in a specific factual context, was a proper exercise of its regulatory function. See, Red Lion Broadcasting Co., v. FCC, 395 U.S. 367 (1969).


The Court concluded that the First Amendment does not prohibit all regulation of speech based on its content. "The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Schenk v. United States, 249 U.S. 47, 52 (1919). Broadcasting, as a medium of expression, has received the most limited First Amendment protection. Because it enters a person's home in a uniquely pervasive manner, the individual's right to privacy outweighs the First Amendment rights of the intruder. Rowan v. Post Office Department, 397 U.S. 728 (1970). It also has the capacity to reach unsupervised children, including those who are too young to read. Even though the "indecent" monologue fell within the periphery of the First Amendment's protection, the government's interest in the "well being of its youth" and in supporting "parents' claim to authority in their own household" justified the FCC's action. Ginsburg v. New York, 390 U.S. 629 (1968). The Court held that on the specific facts of this case---a daytime broadcast of indecent material over public airwaves---the FCC had the power to issue the Declaratory Order.

Justice Powell, joined by Justice Blackman, concurred noting that the fact that the indecent monologue was broadcast into a person's home and that it could reach unsupervised children justified the FCC's action. The FCC does not have the power to decide what protected speech may be banned from the airwaves, but it does have the authority to make the sensitive judgments necessary to protect unwilling adults from indecent broadcasts. Its judgment is entitled to respect. He agreed that, on the facts of this case, the order did not violate respondent's First Amendment rights, but could not subscribe to the Court's theory in part IV (B) that the Justices are free to decide, on the basis of content, which speech is more or less deserving of protection.

Justice Brennan, joined by Justice Marshall, dissented on the ground that the word "indecent" in § 1464 must be construed to prohibit only obscene speech. Accordingly, since the monologue was not found to be obscene, it could not, in his opinion, be regulated. Not only does the majority's holding fail to take into account the interests of listeners who want to hear such monologues, but it also improperly reduces the adult population to hearing only what is fit for children. Butler v. Michigan, 352 U.S. 380, 383--384 (1957). An adult can easily and quickly turn off the radio if he finds the broadcast offensive. Furthermore, it is parents, not the FCC, who have the right to make decisions regarding the upbringing of their children. Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925). Justice Brennan asserted that the majority's conclusion that the content and impact of an idea can be divorced from the words which are the vehicle of expression was fallacious. Not only do specific words express unique ideas, but they also convey emotion which is equally worthy of constitutional protection. Cohen v. California, 403 U.S. 15, 25--26 (1971).

Justice Stewart, joined by Justices Brennan, White and Marshall, dissented on the grounds that "indecent" as used in § 1464 should...

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