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Document Type

Article

Publication Date

12-2010

Publication Citation

63 Federal Communications Law Journal 195 (2010)

Abstract

In 2009, the Supreme Court upheld the FCC's finding in Fox TV Stations v. Federal Communications Commission that the broadcast of "fleeting expletives" violated a federal law prohibiting the broadcast of indecency, but remanded the case for consideration of the broadcast networks' claims that the FCC action violated the First Amendment. On remand, the Second Circuit found that the FCC's prohibition against "fleeting expletives" was unconstitutionally vague. It is widely expected that the Supreme Court will review this decision and that the networks will ask the Court to reconsider its 1978 decision in Pacifica Foundation v. Federal Communications Commission. This Article reexamines the Pacifica case, using papers of some of the Justices who decided the case and interviews with some of the participants. It traces how the FCC came to issue a declaratory order in 1975 finding that the radio broadcast of George Carlin's "Seven Dirty Words" violated the same federal law at issue in the Fox case. It explains how, to the surprise of many observers at the time, the FCC successfully defended its action against a First Amendment challenge in the Supreme Court by portraying its order as a narrow ruling applicable only to the specific facts of that case. Nonetheless, Pacifica came to be understood as establishing a broadly applicable rule prohibiting the broadcast of "indecent" content when children are likely to be in the audience. The Article concludes that while Pacifica does not compel a ruling either way on the constitutional question in the Fox, the history of the Pacifica case suggests that individual adjudications, such as those in Fox and CBS, are not good vehicles for setting forth policy with regard to broadcast indecency.