Pervasive problem: the 1978 Supreme Court decision allowing censorship of dirty words on radio threatens free speech in cyberspace.

• Author: Wallace, Jonathan D.

The 1978 Supreme Court decision allowing censorship of dirty words on radio threatens free speech in cyberspace.

On a Tuesday afternoon in October 1973, a motorist in the New York area tuned his radio to WBAI-FM and heard a 12-minute monologue by comedian George Carlin entitled "Filthy Words." The routine, included on Carlin's record Occupation: Foole, had been taped during a live performance in California. The topic was the "words you couldn't say on the public airwaves, the ones you definitely wouldn't say, ever." Carlin began by listing the seven words designated by the FCC as unacceptable for broadcast media: "shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. These are the ones that will curve your spine, grow hair on your hands, and maybe even bring us, God help us, peace without honor, and a bourbon." The driver who happened upon Carlin's monologue, later described in court records as accompanied by his "young son," wrote a letter of complaint to the Federal Communications Commission. His was the only complaint received about the Carlin broadcast. Although the court records did not say so, the driver was a board member of Morality in Media who was visiting the New York area from his home in Florida, and his "young son" was 15 years old.

The FCC responded by placing a letter of sanction in its file for the Pacifica Foundation, which operated WBAI. Pacifica challenged the action on First Amendment grounds, and the case wended its way up to the Supreme Court, which issued a fragmentary and confusing decision in July 1978. Sup-porting the FCC's authority to regulate "indecent" speech on the airwaves, the Court emphasized that radio broadcasts"pervade" people's homes and may be heard by unattended children. It thereby introduced a new and controversial doctrine into American constitutional law: Government may regulate a communications medium because of its "pervasiveness."

Most commentators originally thought Pacifica Foundation v. FCC, destined to be known as "the seven dirty words case," applied only to broadcast media. But in his 1983 book Technologies of Freedom, communications scholar Ithiel de Sola Pool argued that the pervasiveness doctrine could be used to justify "quite radical censorship." He was right. In recent years, Pacifica has been cited by the Supreme Court in a case upholding restrictions on cable TV, and it was the foundation for the Communications Decency Act, which attempted to regulate speech on the Internet.

When the Supreme Court overturned the CDA in the 1997 case ACLU v. Reno, it did not reject the pervasiveness doctrine. Instead, it held that the Internet is not pervasive. But this finding was based on such narrow grounds that it is bound to be undermined by technological developments. Furthermore, if the logic of the pervasiveness doctrine were applied consistently, even the print media would not be safe from censorship. As long as Pacifica remains the law, defenders of free speech, online or off, cannot rest easy.

To understand what happens when the government tries to protect us against "indecency" in "pervasive" media, it is important to recognize how broad that category of speech is. Although many people use the words pornography, obscenity, and indecency interchangeably, the law understands them very differently. Pornography is a popular term with no legal meaning. Obscenity, as defined by the Supreme Court in the 1973 case Miller v. California, is patently offensive, prurient material, lacking significant scientific, literary, artistic, or political ("SLAP") value. The Miller standard has been used almost exclusively against distributors of hardcore visual material - pictorial magazines and videos - that lack perceived SLAP value. Indecency, by contrast, is "patently offensive" material that may have significant SLAP value, and it need not include pictures. Historically, indecency laws in the United States were used to prosecute writers and publishers of controversial novels (including the works of Balzac, Tolstoy, Zola, and Joyce), along with early crusaders for women's sexual independence, abortion rights, and birth control.

The main justification for indecency laws has always been protecting children. The Supreme Court has repeatedly held that unlike obscenity, which is considered outside the scope of First Amendment protection, indecent material cannot be banned. It can only be "channeled" - regulated so that it is kept away from children. In Butler v. Michigan, a 1957 decision overturning a state ban on indecent literature, the Court said adults cannot be reduced to reading "only what is fit for children." Writing for the majority, Justice Felix Frankfurter said to ban indecency for the sake of children is "to burn the house to roast the pig."

The question in Pacifica was whether the restrictions on broadcast indecency, like the ban...