Pacifica reconsidered: implications for the current controversy over broadcast indecency.

• Author: Campbell, Angela J.

1. INTRODUCTION II. THE STATE OF THE LAW BEFORE PACIFICA A. The Statutory Scheme B. Enforcement of Section 1464 Prior to Pacifica III. THE FCC DECISION IN PACIFICA A. The FCC's Declaratory Order B. The Purpose of Using a Declaratory Order C. Reconsideration and Review III. THE D.C. CIRCUIT IV. THE SUPREME COURT DECISION IN PACIFICA A. Decision to Grant Certiorari B. The Briefs C. Preparation for Oral Argument 1. Justice Powell's Chambers 2. Justice Blackmun's Chambers D. The Oral Argument E. The Conference After Oral Argument F. Drafting the Opinions 1. Justice Stevens's First Draft 2. Justice Powell's Concurring Opinion 3. The Dissenting Opinions 4. Reactions to Justice Brennan's Draft Dissent V. REACTION TO THE PACIFICA DECISION A. The Press B. The FCC C. Academic Reaction VI. FCC ENFORCEMENT OF INDECENCY PROHIBITION AFTER PACIFICA A. CBS's Super Bowl Halftime Show--"Fleeting Nudity" B. Fox's Billboard Music Awards--"Fleeting Expletives" VII. THE SUPREME COURT DECISION IN FOX AND THE DECISION ON REMAND A. The Supreme Court Decision B. The Fox Decision on Remand VIII. CONCLUSION: THE IMPLICATIONS OF PACIFICA FOR THE CURRENT CONTROVERSY OVER BROADCAST INDECENCY I. INTRODUCTION

   This Article tells the story behind the Supreme Court's 1978 decision in Federal Communications Commission v. Pacifica Foundation. (1) Using interviews with participants, documents from the case, and papers of some of the Justices who heard the appeal, (2) it explains how a single letter complaining about "dirty words" in a comedy routine broadcast by a radio station ended up in the Supreme Court. It also relates how a closely divided Court found the FCC's admonishment of the radio station to be constitutional even though the broadcast was protected by the First Amendment and its distribution by other means could not be prohibited.

   The Pacifica case was controversial when it was decided in 1978. It became even more controversial during the George W. Bush administration when the FCC stepped up its enforcement of restrictions on indecent speech. Two FCC enforcement actions have come before the Supreme Court. In the Fox case, (3) the FCC admonished Fox Television for broadcasting "fleeting expletives." In the CBS case, (4) the FCC fined CBS over a half-million dollars for the brief exposure of Janet Jackson's breast during a Super Bowl halftime show.

   In both cases, the networks argued, among other things, that the FCC's action violated the First Amendment and that Pacifica should be overturned. The Court remanded both cases without addressing the constitutional claims. This Article is timely because the Court may consider the soundness of Pacifica when it reviews the decisions on remand.

   Part I describes the state of the law before Pacifica. Part II describes the FCC's decisions in Pacifica, and Part III discusses the D.C. Circuit's opinion reversing the FCC. Part IV describes the progress of the case in the Supreme Court, from the decision to grant certiorari to the five-to-four decision to reverse the D.C. Circuit and uphold the FCC. Part V discusses the contemporary reaction to the Pacifica decision, while Part VI summarizes the FCC's enforcement of the prohibition against broadcasting indecent material after Pacifica. Part VII describes the Supreme Court's decision in Fox and the decision of the Second Circuit on remand. Part VIII concludes by reflecting on the implications of this reassessment of Pacifica for these later indecency cases.

2. THE STATE OF THE LAW BEFORE PACIFICA

   Although Pacifica is usually studied as a First Amendment case, it also resolved important statutory questions about the meaning of [section] 1464 of the Criminal Code, which prohibits the broadcast of "obscene, indecent, or profane language"; (5) the FCC's authority to enforce [section] 1464; and the anticensorship provision in section 326 of the Communications Act.

   1. The Statutory Scheme

      Both [section] 1464 of the Criminal Code and section 326 of the Communications Act originated in the Radio Act of 1927, which created the Federal Radio Commission to license radio stations in the public interest. (6) Section 29 of that Act read:

      Nothing in this Act shall be understood or construed to give the licensing authority the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communications. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication. (7) This language was reenacted in section 326 of the Communications Act of 1934. (8) In 1948, the Criminal Code was revised, and the last sentence of section 326 was moved to Title 18 of the Criminal Code to join other federal criminal statutes regulating offensive matter. (9) This revision made the Department of Justice (DO J) responsible for criminal enforcement of [section] 1464. (10) It was unclear whether this change was intended to remove the FCC's authority to enforce [section] 1464 administratively, since other sections of the Communications Act seemed to give the FCC authority to impose various sanctions for violations of [section] 1464. (11) The Court resolved this uncertainty in Pacifica and concluded that rearranging the provisions did not limit the FCC's authority to impose sanctions on licensees for broadcasting indecent material. (12)

   2. Enforcement of Section 1464 Prior to Pacifica

      In practice, neither the DOJ nor the FCC actively enforced [section] 1464 prior to 1970. (13) In 1969, the Senate Subcommittee on Communications held a hearing and strongly suggested that the FCC do more to curb offensive broadcasting. (14) This hearing was prompted, at least in part, by the Subcommittee's unhappiness with the FCC's grant of an additional license to the Pacifica Foundation despite the large number of complaints about its programming. (15)

      Shortly after the hearing, the FCC issued a Notice of Apparent Liability (NAL) for violating [section] 1464 against WUHY-FM, a noncommercial station in Philadelphia. (16) WUHY-FM had broadcast a fifty-minute, taped interview with the Grateful Dead's Jerry Garcia at 10:00 p.m. in which Garcia repeatedly used the words "fuck" and "shit." (17) The FCC explained that the issue was not whether the station could present Garcia's views, but:

      whether the licensee may present previously taped interview or talk shows where the persons intersperse or begin their speech with expressions like, "S--t, man...", "... and s--t like that", or "... 900 f----n' times", "... right f-----g out of ya", etc. We believe.., we have a duty to act to prevent the widespread use on broadcast outlets of such expressions ... For, the speech involved has no redeeming social value, and is patently offensive by contemporary community standards ... [I]t conveys no thought to begin some speech with "S--t, man ...", or to use "f-----g" as an adjective throughout the speech. (18) The FCC found that the broadcast was not "obscene" under [section] 1464 because it did not appeal to the prurient interest. (19) However, it concluded that "the statutory term, 'indecent', should be applicable, and that, in the broadcast field, the standard for its applicability should be that the material broadcast is (a) patently offensive by contemporary community standards; and (b) is utterly without redeeming social value." (20) The decision cited no authority for this assertion, and indeed, recognized that there was no applicable judicial or administrative precedent. (21) The FCC imposed a one hundred-dollar fine and stated that it welcomed judicial review. (22) Despite this invitation and strong dissents, (23) WUHY-FM did not appeal. (24) Undoubtedly, it would have cost far more to appeal than to pay the fine.

      Henry Geller, who served as a special assistant to the Republican FCC Chairman Dean Burch at the time of the WUHY case, explained why the FCC brought this case. The Chairman wanted this type of language off the air. Geller advised him that the broadcast did not violate [section] 1464 because it was not obscene. He suggested that Burch use the "raised eyebrow" approach, but Burch did not want to do that. Geller then suggested arguing that indecent speech differed from obscene speech under the statute. Even though Geller thought the FCC would lose in court, Burch wanted it done under the statute, and Geller thought he had no other choice but to follow Burch's wishes. (25)

      The next FCC case enforcing [section] 1464 involved a commercial radio format known as "topless radio." (26) This term refers to call-in shows, typically aired midday, which include explicit discussions of sex. (27) After receiving complaints about this format, the FCC issued a NAL in April 1973, proposing to fine Sonderling Broadcasting Corporation, licensee of WGLD-FM in Oak Park, Illinois, two thousand dollars for broadcasting "obscene and indecent" matter in violation of [section] 1464. (28)

      Like WUHY, Sonderling paid the fine rather than incur the expense of an appeal. (29) However, the Illinois Citizens for Broadcasting and the Illinois Division of the ACLU filed a petition alleging that the FCC's actions had deprived listeners of their First Amendment rights to hear constitutionally protected programming. (30) The FCC denied the petition, and the petitioners appealed to the D.C. Circuit. (31) The FCC Associate General Counsel, Joseph A. Marino, who would later argue the Pacifica case in the Supreme Court, argued this case in the D.C. Circuit. (32) The court affirmed the FCC in a decision written by Judge Leventhal, who agreed that the broadcasts were obscene and that the sanction did not violate the First Amendment. (33)

      In Sonderling, "[t]he FCC found [the] broadcasts obscene under the standards of Roth v. United States and Memoirs v. Massachusetts." (34) While...