Federal Communications Commission v. Pacifica Foundation

In Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), the Court again considered the public use of indecent speech. The Court upheld the authority of the F.C.C. to consider broadcasting of indecent language as the basis for administrative sanctions. Two aspects of that decision are pertinent to this case. First, Justice Stevens, writing the plurality opinion, distinguished between governmental authority to regulate "a point of view" and "the way in which it is expressed." Id. at 746 n.22, 98 S.Ct. at 3038 n.22. As he observed, "A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language." Id. at 743 n.18, 98 S.Ct. at 3037 n.18. Second, Justice Stevens grounded the Commission's authority significantly upon a legitimate governmental interest in regulating indecent language easily accessible to children. See Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). The Commission itself had made clear that it intended no absolute prohibition on the use of the indecent language, but "sought to channel it to times of day when children would not be exposed to it." 59 F.C.C.2d 892 (1976). The availability of the 2 p.m. broadcast to children was of obvious concern in both the plurality and concurring opinions of the Court. 438 U.S. at 749-50, 757-59, 98 S.Ct. 3026.