Federal Communications Commission v. Pacifica Foundation

438 U.S. 726, 98 S. Ct. 3026, 57 L. Ed. 2d 1073, 1978 U.S. LEXIS 135

Opinions

Me. Justice Stevens

delivered the opinion of the Court (Parts I, II, III, and IV-C) and an opinion in which The Chief Justice and Me. Justice Rehnquist joined (Parts IV-A and IY-B).

This case requires that we decide whether the Federal Communications Commission has any power to regulate a radio broadcast that is indecent but not obscene.

A satiric humorist named George Carlin recorded a 12-minute monologue entitled “Filthy Words” before a live audience in a California theater. He began by referring to his thoughts about “the words you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.” He proceeded to list those words and repeat them over and over again in a variety of colloquialisms. The transcript of the recording, which is appended to this opinion, indicates frequent laughter from the audience.

At about 2 o’clock in the afternoon on Tuesday, October 30, 1973, a New York radio station, owned by respondent Pacifica Foundation, broadcast the “Filthy Words” monologue. A few weeks later a man, who stated that he had heard the broadcast while driving with his young son, wrote a letter complaining to the Commission. He stated that, although he could perhaps understand the “record’s being sold for private use, I certainly cannot understand the broadcast of same over the air that, supposedly, you control.”

The complaint was forwarded to the station for comment. In its response, Pacifica explained that the monologue had been played during a program about contemporary society’s attitude toward language and that, immediately before its broadcast, listeners had been advised that it included “sensitive language which might be regarded as offensive to some.” Pacifica characterized George Carlin as “a significant social satirist” who “like Twain and Sahl before him, examines the language of ordinary people. . . . Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words.” Pacifica stated that it was not aware of any other complaints about the broadcast.

On February 21, 1975, the Commission issued a declaratory order granting the complaint and holding that Pacifica “could have been the subject of administrative sanctions.” 56 F. C. C. 2d 94, 99. The Commission did not impose formal sanctions, but it did state that the order would be “associated with the station’s license file, and in the event that subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress.” ¹

In its memorandum opinion the Commission stated that it intended to “clarify the standards which will be utilized in considering” the growing number of complaints about indecent speech on the airwaves. Id., at 94. Advancing several reasons for treating broadcast speech differently from other forms of expression,² the Commission found a power to regulate indecent broadcasting in two statutes: 18 U. S. C. § 1464 (1976 ed.), which forbids the use of “any obscene, indecent, or profane language by means of radio communications,”³ and 47 U. S. C. § 303 (g), which requires the Commission to “encourage the larger and more effective use of radio in the public interest.”⁴

The Commission characterized the language used in the Carlin monologue as “patently offensive,” though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to those found in the law of nuisance where the “law generally speaks to channeling behavior more than actually prohibiting it. . . . [T]he concept of ‘indecent’ is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.” 56 F. C. C. 2d, at 98.⁵

Applying these considerations to the language used in the monologue as broadcast by respondent, the Commission concluded that certain words depicted sexual and excretory activities in a patently offensive manner, noted that they “were broadcast at a time when children were undoubtedly in the audience (i. e., in the early afternoon),” and that the prerecorded language, with these offensive words “repeated over and over,” was “deliberately broadcast.” Id., at 99. In summary, the Commission stated: “We therefore hold that the language as broadcast was indecent and prohibited by 18 U. S. C. [§] 1464.” ⁶ Ibid.

After the order issued, the Commission was asked to clarify its opinion by ruling that the broadcast of indecent words as part of a live newscast would not be prohibited. The Commission issued another opinion in which it pointed out that it “never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.” 59 F. C. C. 2d 892 (1976). The Commission noted that its “declaratory order was issued in a specific factual context,” and declined to comment on various hypothetical situations presented by the petition.⁷ Id., at 893. It relied on its “long standing policy of refusing to issue interpretive rulings or advisory opinions when the critical facts are not explicitly stated or there is a possibility that subsequent events will alter them.” Ibid.

The United States Court of Appeals for the District of Columbia Circuit reversed, with each of the three judges on the panel writing separately. 181 U. S. App. D. C. 132, 556 F. 2d 9. Judge Tamm concluded that the order represented censorship and was expressly prohibited by § 326 of the Communications Act.⁸ Alternatively, Judge Tamm read the Commission opinion as the functional equivalent of a rule and concluded that it was “overbroad.” 181 U. S. App. D. C., at 141, 556 F. 2d, at 18. Chief Judge Bazelon’s concurrence rested on the Constitution. He was persuaded that § 326’s prohibition against censorship is inapplicable to broadcasts forbidden by § 1464. However, he concluded that § 1464 must be narrowly construed to cover only language that is obscene or otherwise unprotected by the First Amendment. 181 U. S. App. D. C., at 140-153, 556 F. 2d, at 24-30. Judge Leventhal, in dissent, stated that the only issue was whether the Commission could regulate the language “as broadcast.” Id., at 154, 556 F. 2d, at 31. Emphasizing the interest in protecting children, not only from exposure to indecent language, but also from exposure to the idea that such language has official approval, id., at 160, and n. 18, 556 F. 2d, at 37, and n. 18, he concluded that the Commission had correctly condemned the daytime broadcast as indecent.

Having granted the Commission’s petition for certiorari, 434 U. S. 1008, we must decide: (1) whether the scope of judicial review encompasses more than the Commission’s determination that the monologue was indecent “as broadcast”; (2) whether the Commission’s order was a form of censorship forbidden by § 326; (3) whether the broadcast was indecent within the meaning of § 1464; and (4) whether the order violates the First Amendment of the United States Constitution.

I

The general statements in the Commission’s memorandum opinion do not change the character of its order. Its action was an adjudication under 5 U. S. C. § 554 (e) (1976 ed.); it did not purport to engage in formal rulemaking or in the promulgation of any regulations. The order “was issued in a specific factual context”; questions concerning possible action in other contexts were expressly reserved for the future. The specific holding was carefully confined to the monologue “as broadcast.”

“This Court . . . reviews judgments, not statements in opinions.” Black v. Cutter Laboratories, 351 U. S. 292, 297. That admonition has special force when the statements raise constitutional questions, for it is our settled practice to avoid the unnecessary decision of such issues. Rescue Army v. Municipal Court, 331 U. S. 549, 568-569. However appropriate it may be for an administrative agency to write broadly in an adjudicatory proceeding, federal courts have never been empowered to issue advisory opinions. See Herb v. Pitcairn, 324 U. S. 117, 126. Accordingly, the focus of our review must be on the Commission’s determination that the Carlin monologue was indecent as broadcast.

II

The relevant statutory questions are whether the Commission’s action is forbidden “censorship” within the meaning of 47 U. S. C. § 326 and whether speech that concededly is not obscene may be restricted as “indecent” under the authority of 18 U. S. C. § 1464 (1976 ed.). The questions are not unrelated, for the two statutory provisions have a common origin. Nevertheless, we analyze them separately.

Section 29 of the Radio Act of 1927 provided:

“Nothing in this Act shall be understood or construed to give the licensing authority the power of censorship over the radio communications¹ 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.” 44 Stat. 1172.

The prohibition against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advance and to excise material considered inappropriate for the airwaves. The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duties.⁹

During the period between the original enactment of the provision in 1927 and its re-enactment in the Communications Act of 1934, the courts and the Federal Radio Commission held that the section deprived the Commission of the power to subject “broadcasting matter to scrutiny prior to its release,” but they concluded that the Commission’s “undoubted right” to take note of past program content when considering a licensee’s renewal application “is not censorship.” ¹⁰

Not only did the Federal Radio Commission so construe the statute prior to 1934; its successor, the Federal Communications Commission, has consistently interpreted the provision in the same way ever since. See Note, Regulation of Program Content by the FCC, 77 Harv. L. Rev. 701 (1964). And, until this case, the Court of Appeals for the District of Columbia Circuit has consistently agreed with this construction.¹¹ Thus, for example, in his opinion in Anti-Defamation League of B’nai B’rith v. FCC, 131 U. S. App.. D. C. 146, 403 F. 2d 169 (1968), cert. denied, 394 U. S. 930, Judge Wright forcefully pointed out that the Commission is not prevented from canceling the license of a broadcaster who persists in a course of improper programming. He explained:

“This would not be prohibited ‘censorship,’ . . . any more than would the Commission’s considering on a license renewal application whether a broadcaster allowed ‘coarse, vulgar, suggestive, double-meaning’ programming ; programs containing such material are grounds for denial of a license renewal.” 131 U. S. App. D. C., at 150-151, n. 3, 403 F. 2d, at 173-174, n. 3.

See also Office of Communication of United Church of Christ v. FCC, 123 U. S. App. D. C. 328, 359 F. 2d 994 (1966).

Entirely apart from the fact that the subsequent review of program content is not the sort of censorship at which the statute was directed, its history makes it perfectly clear that it was not intended to limit the Commission’s power to regulate the broadcast of obscene, indecent, or profane language. A single section of the 1927 Act is the source of both the anticensorship provision and the Commission’s authority to impose sanctions for the broadcast of indecent or obscene language. Quite plainly, Congress intended to give meaning to both provisions. Respect for that intent requires that the censorship language be read as inapplicable to the prohibition on broadcasting obscene, indecent, or profane language.

There is nothing in the legislative history to contradict this conclusion. The provision was discussed only in generalities when it was first enacted.¹² In 1934, the anticensorship provision and the prohibition against indecent broadcasts were re-enacted in the same section, just as in the 1927 Act. In 1948, when the Criminal Code was revised to include provisions that had previously been located in other Titles of the United States Code, the prohibition against obscene, indecent, and profane broadcasts was removed from the Communications Act and re-enacted as § 1464 of Title 18. 62 Stat. 769 and 866. That rearrangement of the Code cannot reasonably be interpreted as having been intended to change the meaning of the anticensorship provision. H. R. Rep. No. 304, 80th Cong., 1st Sess., A106 (1947). Cf. Tidewater Oil Co. v. United States, 409 U. S. 151, 162.

We conclude, therefore, that § 326 does not limit the Commission’s authority to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting.

Ill

The only other statutory question presented by this case is whether the afternoon broadcast of the “Filthy Words” monologue was indecent within the meaning of § 1464.¹³ Even that question is narrowly confined by the arguments of the parties.

The Commission identified several words that referred to excretory or sexual activities or organs, stated that the repetitive, deliberate use of those words in an afternoon broadcast when children are in the audience was patently offensive, and held that the broadcast was indecent. Pacifica takes issue with the Commission’s definition of indecency, but does not dispute the Commission’s preliminary determination that each of the components of its definition was present. Specifically, Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive. Pacifica’s claim that the broadcast was not indecent within the meaning of the statute rests entirely on the absence of prurient appeal.

The plain language of the statute does not support Pacifica’s argument. The words “obscene, indecent, or profane” are written in the disjunctive, implying that each has a separate meaning. Prurient appeal is an element of the obscene, but the normal definition of “indecent” merely refers to noncon-formance with accepted standards of morality.¹⁴

Pacifica argues, however, that this Court has construed the term “indecent” in related statutes to mean “obscene,” as that term was defined in Miller v. California, 413 U. S. 15. Pacifica relies most heavily on the construction this Court gave to 18 U. S. C. § 1461 in Hamling v. United States, 418 U. S. 87. See also United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 130 n. 7 (18 U. S. C. § 1462) (dicta). Hamling rejected a vagueness attack on § 1461, which forbids the mailing of “obscene, lewd, lascivious, indecent, filthy or vile” material. In holding that the statute’s coverage is limited to obscenity, the Court followed the lead of Mr. Justice Harlan in Manual Enterprises, Inc. v. Day, 370 U. S. 478. In that case, Mr. Justice Harlan recognized that § 1461 contained a variety of words with many shades of meaning.¹⁵ Nonetheless, he thought that the phrase “obscene, lewd, lascivious, indecent, filthy or vile,” taken as a whole, was clearly limited to the obscene, a reading well grounded in prior judicial constructions: “[T]he statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex.” 370 U. S., at 483. In Hamling the Court agreed with Mr. Justice Harlan that § 1461 was meant only to regulate obscenity in the mails; by reading into it the limits set by Miller v. California, supra, the Court adopted a construction which assured the statute’s constitutionality.

The reasons supporting Hamling’s construction of § 1461 do not apply to § 1464. Although the history of the former revealed a primary concern with the prurient, the Commission has long interpreted § 1464 as encompassing more than the obscene.¹⁶ The former statute deals primarily with printed matter enclosed in sealed envelopes mailed from one individual to another; the latter deals with the content of public broadcasts. 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.¹⁷

Because neither our prior decisions nor the language or history of § 1464 supports the conclusion that prurient appeal is an essential component of indecent language, we reject Pacifica’s construction of the statute. When that construction is put to one side, there is no basis for disagreeing with the Commission’s conclusion that indecent language was used in this broadcast.

IV

Pacifica makes two constitutional attacks on the Commission’s order. First, it argues that the Commission’s construction of the statutory language broadly encompasses so much constitutionally protected speech that reversal is required even if Pacifica’s broadcast of the “Filthy Words” monologue is not itself protected by the First Amendment. Second, Pacifica argues that inasmuch as the recording is not obscene, the Constitution forbids any abridgment of the right to broadcast it on the radio.

A

The first argument fails because our review is limited to the question whether the Commission has the authority to proscribe this particular broadcast. As the Commission itself emphasized, its order was “issued in a specific factual context.” 59 F. C. C. 2d, at 893. That approach is appropriate for courts as well as the Commission when regulation of indecency is at stake, for indecency is largely a function of context — it cannot be adequately judged in the abstract.

The approach is also consistent with Red Lion Broadcasting Co. v. FCC, 395 U. S. 367. In that case the Court rejected an argument that the Commission’s regulations defining the fairness doctrine were so vague that they would inevitably abridge the broadcasters’ freedom of speech. The Court of Appeals had invalidated the regulations because their vagueness might lead to self-censorship of controversial program content. Radio Television News Directors Assn. v. United States, 400 F. 2d 1002, 1016 (CA7 1968). This Court reversed. After noting that the Commission had indicated, as it has in this case, that it would not impose sanctions without warning in cases in which the applicability of the law was unclear, the Court stated:

“We need not approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable, United States v. Sullivan, 332 U. S. 689, 694 (1948), but will deal with those problems if and when they arise.” 395 U. S., at 396-.

It is true that the Commission’s order may lead some broadcasters to censor themselves. At most, however, the Commission’s definition of indecency will -deter only the broadcasting of patently offensive references to excretory and sexual organs and activities.¹⁸ While some of these references may be protected, they surely lie at the periphery of First Amendment concern. Cf. Bates v. State Bar of Arizona, 433 U. S. 350, 380-381. Young v. American Mini Theatres, Inc., 427 U. S. 50, 61. The danger 'dismissed so summarily in Red Lion, in contrast, was that broadcasters would respond to the vagueness of the regulations by refusing to present programs dealing with important social and political controversies. Invalidating any rule on the basis of its hypothetical application to situations not before the Court is “strong medicine” to be applied “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U. S. 601, 613. We decline to administer that medicine to preserve the vigor of patently offensive sexual and excretory speech.

B

When the issue is narrowed to the facts of this case, the question is whether the First Amendment denies government any power to restrict the public broadcast of indecent language in any circumstances.¹⁹ For if the government has any such power, this was an appropriate occasion for its exercise.

The words of the Carlin monologue are unquestionably “speech” within the meaning of the First Amendment. It is equally clear that the Commission’s objections to the broadcast were based in part on its content. The order must therefore fall if, as Pacifica argues, the First Amendment prohibits all governmental regulation that depends on the content of speech. Our past cases demonstrate, however, that no such absolute rule is mandated by the Constitution.

The classic exposition of the proposition that both the content and the context of speech are critical elements of First Amendment analysis is Mr. Justice Holmes’ statement for the Court in Schenck v. United States, 249 U. S. 47, 52:

“We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against-uttering words that may have all the effect of force. . . . The question in every case is whether the words used 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.”

Other distinctions based on content have been approved in the years since Schenck. The government may forbid speech calculated to provoke a fight. See Chaplinsky v. New Hampshire, 315 U. S. 568. It may pay heed to the “ 'commonsense differences’ between commercial speech and other varieties.” Bates v. State Bar of Arizona, supra, at 381. It may treat libels against private citizens more severely than libels against public officials. See Gertz v. Robert Welch, Inc., 418 U. S. 323. Obscenity may be wholly prohibited. Miller v. California, 413 U. S. 15. And only two Terms ago wé refused to hold that a “statutory classification is unconstitutional because it is based on the content of communication protected by the First Amendment.” Young v. American Mini Theatres, Inc., supra, at 52.

The question in this case is whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content.²⁰ Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards. Roth v. United States, 354 U. S. 476. But the fact that society may find speech offensive is not a sufficient reason for - suppressingyit. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.²¹ If there were any reason to believe that the Commission’s characterization of the Carlin monologue as offensive could be traced to its political content — or even to the fact that it satirized contemporary attitudes about four-letter words²²— First Amendment protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends.²⁸ Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: “[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U. S., at 572.

Although these words ordinarily lack literary, political, or scientific value, they are not entirely outside the protection of the First Amendment. Some uses of even the most offensive words are unquestionably protected. See, e. g., Hess v. Indiana, 414 U. S. 105. Indeed, we may assume, arguendo, that this monologue would be protected in other contexts. Nonetheless, the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context.²⁴ It is a characteristic of speech such as this that both its capacity to offend and its “social value,” to use Mr. Justice Murphy’s term, vary with the circumstances. Words that are commonplace in one setting are shocking in another. To paraphrase Mr. Justice Harlan, one occasion’s lyric is another’s vulgarity. Cf. Cohen v. California, 403 U. S. 15, 25.²⁵

In this case it is undisputed that the content of Pacifica’s broadcast was “vulgar,” “offensive,” and “shocking.” Because content of that character is not entitled to absolute constitutional protection under all circumstances, we must consider its context in order to determine whether the Commission's action was constitutionally permissible.

C

We have long recognized that each medium of expression presents special First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 502-503. And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve “the public interest, convenience, and necessity.” ²⁶ Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, it affords no such protection to broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC, 395 U. S. 367.

The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., 397 U. S. 728. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.²⁷

Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen’s written message might have been incomprehensible to a first grader, Pacifica’s broadcast could have enlarged a child’s vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 U. S. 629, that the government’s interest in the “well-being of its youth” and in supporting “parents’ claim to authority in their own household” justified the regulation of otherwise protected expression. Id., at 640 and 639.²⁸ The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.

It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution. The Commission’s decision rested entirely on a nuisance rationale under which context is all-important. The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience,²⁹ and differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant. As Mr. Justice Sutherland wrote, a “nuisance may be merely a right thing in the wrong place, — like a pig in the parlor instead of the barnyard.” Euclid v. Ambler Realty Co., 272 U. S. 365, 388. We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.

The judgment of the Court of Appeals is reversed.

It is so ordered.

APPENDIX TO OPINION OF THE COURT

The following is a verbatim transcript of “Filthy Words” prepared by the Federal Communications Commission.

Aruba-du, ruba-tu, ruba-tu. I was thinking about the curse words and the swear words, the cuss words and the words that you can't say, that you're not supposed to say all the time, ['] cause words or people into words want to hear your words. Some guys like to record your words and sell them back to you if they can, (laughter) listen in on the telephone, write down what words you say. A guy who used to be in Washington knew that his phone was tapped, used to answer, Fuck Hoover, yes, go ahead, (laughter) Okay, I was thinking one night about the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever, ['] cause I heard a lady say bitch one night on television, and it was cool like she was talking about, you know, ah, well, the bitch is the first one to notice that in the litter Johnie right (murmur) Right. And, uh, bastard you can say, and hell and damn so I have to figure out which ones you couldn’t and ever and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself. The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon, (laughter) And now the first thing that we noticed was that word fuck was really repeated in there because the word motherfucker is a compound word and it's another form of the word fuck, (laughter) You want to be a purist it doesn't really — it can’t be on the list of basic words. Also, cocksucker is a compound word and neither half of that is really dirty. The word — the half sucker that’s merely suggestive (laughter) and the word cock is a half-way dirty word, 50% dirty — dirty half the time, depending on what you mean by it. (laughter) Uh, remember when you first heard it, like in 6th grade, you used to giggle. And the cock crowed three times, heh (laughter) the cock — three times. It’s in the Bible, cock in the Bible, (laughter) And the first time you heard about a cock-fight, remember — What? Huh? naw. It ain’t that, are you stupid? man. (laughter, clapping) It’s chickens, you know, (laughter) Then you have the four letter words from the old Anglo-Saxon fame. Uh, shit and fuck. The word shit, uh, is an interesting kind of word in that the middle class has never really accepted it and approved it. They use it like, crazy but it’s not really okay. It’s still a rude, dirty, old kind of gushy word, (laughter) They don’t like that, but they say it, like, they say it like, a lady now in a middle-class home, you’ll hear most of the time she says it as an expletive, you know, it’s out of her mouth before she knows. She says, Oh shit oh shit, (laughter) oh shit. If she drops something, Oh, the shit hurt the broccoli. Shit. Thank you. (footsteps fading away) (papers ruffling)

Read it! (from audience)

Shit! (laughter) I won the Grammy, man, for the comedy album. Isn’t that groovy? (clapping, whistling) (murmur) That’s true. Thank you. Thank you man. Yeah, (murmur) (continuous clapping) Thank you man. Thank you. Thank you very much, man. Thank, no, (end of continuous clapping) for that and for the Grammy, man, [’]cause (laughter) that’s based on people liking it man, yeh, that’s ah, that’s okay man. (laughter) Let’s let that go, man. I got my Grammy. I can let my hair hang down now, shit, (laughter) Ha! So! Now the word shit is okay for the man. At work you can say it like crazy. Mostly figuratively, Get that shit out of here, will ya? I don't want to see that shit anymore. I can’t cut that shit, buddy. I’ve had that shit up to here. I think you’re full of shit myself, (laughter) He don’t know shit from Shinola. (laughter) you know that? (laughter) Always wondered how the Shinola people felt about that (laughter) Hi,. I’m the new man from Shinola. (laughter) Hi, how are ya? Nice to see ya. (laughter) How are ya? (laughter) Boy, I don’t know whether to shit or wind my watch, (laughter) Guess, I’ll shit on my watch, (laughter) Oh, the shit is going to hit de fan. (laughter) Built like a brick shit-house, (laughter) Up, he’s up shit’s creek, (laughter) He’s had it. (laughter) He hit me, I’m sorry, (laughter) Hot shit, holy shit, tough shit, eat shit, (laughter) shit-eating grin. Uh, whoever thought of that was ill. (murmur laughter) He had a shit-eating grin! He had a what? (laughter) Shit on a stick, (laughter) Shit in a handbag. I always like that. He ain’t worth shit in a handbag, (laughter) Shitty. He acted real shitty, (laughter) You know what I mean? (laughter) I got the money back, but a real shitty attitude. Heh, he had a shit-fit. (laughter) Wow! Shit-fit. Whew! Glad I wasn’t there, (murmur, laughter) All the animals — Bull shit, horse shit, cow shit, rat shit, bat shit, (laughter) First time I heard bat shit, I really came apart. A guy in Oklahoma, Boggs, said it, man. Aw! Bat shit, (laughter) Vera reminded me of that last night, ah (murmur). Snake shit, slicker than owl shit, (laughter) Get your shit together. Shit or get off the pot. (laughter) I got a shit-load full of them, (laughter) I got a shit-pot full, all right. Shit-head, shit-heel, shit in your heart, shit for brains, (laughter) shit-face, heh (laughter) I always try to think how that could have originated; the first guy that said that. Somebody got drunk and fell in some shit, you know, (laughter) Hey, I’m shit-face, (laughter) Shit-face, today, (laughter) Anyway, enough of that shit, (laughter) The big one, the word fuck that’s the one that hangs them up the most. [’] Cause in a lot of cases that’s the very act that hangs them up the most. So, it's natural that the word would, uh, have the same effect. It’s a great word, fuck, nice word, easy word, cute word, kind of. Easy word to say. One syllable, short u. (laughter) Fuck. (Murmur) You know, it's easy. Starts with a nice soft sound fuh ends with a huh. Right? (laughter) A little something for everyone. Fuck (laughter) Good word. Kind of a proud word, too. Who are you? I am FUCK, (laughter) FUCK OF THE MOUNTAIN, (laughter) Tune in again next week to FUCK OF THE MOUNTAIN, (laughter) It’s an interesting word too, [’]cause it’s got a double kind of a life — personality — dual, you know, whatever the right phrase is. It leads a double life, the word fuck. First of all, it means, sometimes, most of the time, fuck. What does it mean? -It means to make love. Right? We’re going to make love, yeh, we’re going to fuck, yeh, we’re going to fuck, yeh, we’re going to make love, (laughter) we’re really going to fuck, yeh, we’re going to make love. Right? And it also means the beginning of life, it’s the act that begins life, so there’s the word hanging around with words like love, arid life, and yet on the other hand, it’s also a word that we really use to hurt each other with, man. It’s a heavy. It’s one that you have toward the end of the argument, (laughter) Right? (laughter) You finally can’t make out. Oh, fuck you man. I said, fuck you. (laughter, murmur) Stupid fuck, (laughter) Fuck you and everybody that looks like you. (laughter) man. It would.be nice to change the movies that we already have and substitute the word fuck for the word kill, wherever we could, and some of those movie cliches would change a little bit. Madfuckers still on the loose. Stop me before I fuck again. Fuck the ump, fuck the ump, fuck the ump, fuck the ump, fuck the ump. Easy on the clutch Bill, you’ll fuck that engine again, (laughter) The other shit one was, I don’t give a shit. Like it’s worth something, you know? (laughter) I don’t give a shit. Hey, well, I don’t take no shit, (laughter) you know what I mean? You know why I don’t take no shit? (laughter) [’] Cause I don’t give a shit, (laughter) If I give a shit, I would have to pack shit, (laughter) But I don’t pack no shit cause I don’t give a shit, (laughter) You wouldn’t shit me, would you? (laughter) That’s a joke when you’re a kid with a worm looking out the bird’s ass. You wouldn’t shit me, would you? (laughter) It’s an eight-year-old joke but a good one. (laughter) The additions to the list. I found three more words that had to be put on the list of words you could never say on television, and they were fart, turd and twat, those three, (laughter) Fart, we talked about, it’s harmless It’s like tits, it’s a cutie word, no problem. Turd, you can’t say but who wants to, you know? (laughter) The subject never comes up on the panel so I’m not worried about that one. Now the word twat is an interesting word. Twat! Yeh, right in the twat. (laughter) Twat is an interesting word because it’s the only one I know of, the only slang word applying to the, a part of the sexual anatomy that doesn’t have another meaning to it. Like, ah, snatch, box and pussy all have other meanings, man. Even in a Walt Disney movie, you can say, We’re going to snatch that pussy and put him in a box and bring him on the airplane, (murmur, laughter) Everybody loves it. The twat stands alone, man, as it should. And two-way words. Ah, ass is okay providing you’re riding into town on a religious feast day. (laughter) You can’t say, up your ass. (laughter) You can say, stuff it! (murmur) There are certain things you can say its weird but you can just come so close. Before I cut, I, uh, want to, ah, thank you for listening to my words, man, fellow, uh space travelers. Thank you man for tonight and thank you also, (clapping whistling)

1 56 F. C. C. 2d, at 99. The Commission noted:

“Congress has specifically empowered the FCC to (1) revoke a station’s license (2) issue a cease and desist order, or (3) impose a monetary forfeiture for a violation of Section 1464, 47 U. S. C. [§§] 312 (a), 312 (b), 503 (b) (1) (E). The FCC can also (4) deny license renewal or (5) grant a short term renewal, 47 U. S. C. [§§] 307, 308.” Id., at 96 n. 3.

2 “Broadcasting requires special treatment because of four important considerations: (1) children have access to radios and in many cases are unsupervised by parents; (2) radio receivers are in the home, a place where people’s privacy interest is entitled to extra deference, see Rowan v. Post Office Dept., 397 U. S. 728 (1970); (3) unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast; and (4) there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest. Of special concern to the Commission as well as parents is the first point regarding the use of radio by children.” Id,., at 97.

3 Title 18 U. S. C. § 1464 (1976 ed.) provides:

“Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10,000 or imprisoned not more than two years, or both.”

4 Section 303 (g) of the Communications Act of 1934, 48 Stat. 1082, as amended, as set forth in 47 U. S. C. § 303 (g), in relevant part, provides:

“Except as otherwise provided in this chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall—

“(g) . . . generally encourage the larger and more effective use of radio in the public interest.”

5 Thus, the Commission suggested, if an offensive broadcast had literary, artistic, political, or scientific value, and were preceded by warnings, it might not be indecent in the late evening, but would be so during the day, when children are in the audience. 56 F. C. C. 2d, at 98.

6 Chairman Wiley concurred in the result without joining the opinion. Commissioners Reid and Quello filed separate statements expressing the opinion that the language was inappropriate for broadcast at any time. Id., at 102-103. Commissioner Robinson, joined by Commissioner Hooks, filed a concurring statement expressing the opinion: “[W]e can regulate offensive speech to the extent it constitutes a public nuisance. . . . The governing idea is that 'indecency’ is not an inherent attribute of words themselves; it is rather a matter of context and conduct. ... If I were called on to do so, I would find that Carlin’s monologue, if it were broadcast at an appropriate hour and accompanied by suitable warning, was distinguished by sufficient literary value to avoid being ‘indecent’ within the meaning of the statute.” Id., at 107-108, and n. 9.

7 The Commission did, however, comment:

“ '[I]n some cases, public events likely to produce offensive speech are covered live, and there is no opportunity for journalistic editing.’ Under these circumstances we believe that it would be inequitable for us to hold a licensee responsible for indecent language. . . . We trust that under such circumstances a licensee will exercise judgment, responsibility, and sensitivity to the community’s needs, interests and tastes.” 59 F. C. C. 2d, at 893 n. 1.

8 “Nothing in this Act shall be understood or construed to give the Commission 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 Commission which shall interfere with the right of free speech by means of radio communication.” 48 Stat. 1091, 47 U. S. C. § 326.

9 Zechariah Chafee, defending the Commission’s authority to take into account program service in granting licenses, interpreted the restriction on “censorship” narrowly: “This means, I feel sure, the sort of censorship which went on in the seventeenth century in England — the deletion of specific items and dictation as to what should go into particular programs.” 2 Z. Chafee, Government and Mass Communications 641 (1947).

10 In KFKB Broadcasting Assn. v. Federal Radio Comm’n, 60 App. D. C. 79, 47 F. 2d 670 (1931), a doctor who controlled a radio station as well as a pharmaceutical association made frequent broadcasts in which he answered the medical questions of listeners. He often prescribed mixtures prepared by his pharmaceutical association. The Commission determined that renewal of the station’s license would not be in the public interest, convenience, or necessity because many of the broadcasts served the doctor’s private interests. In response to the claim that this was censorship in violation of § 29 of the 1927 Act, the Court held:

“This contention is without merit. There has been no attempt on the part of the commission to subject any part of appellant’s broadcasting matter to scrutiny prior to its release. In considering the question whether the public interest, convenience, or necessity will be served by a renewal of appellant’s license, the commission has merely exercised its undoubted right to take note of appellant’s past conduct, which is not censorship.” 60 App. D. C., at 81, 47 F. 2d, at 672.

In Trinity Methodist Church, South v. Federal Radio Comm’n, 61 App. D. C. 311, 62 F. 2d 850 (1932), cert. denied, 288 U. S. 599, the station was controlled by a minister whose broadcasts contained frequent references to “pimps” and “prostitutes” as well as bitter attacks on the Roman Catholic Church. The Commission refused to renew the license, citing the nature of the broadcasts. The Court of Appeals affirmed, concluding that First Amendment concerns did not prevent the Commission from regulating broadcasts that “offend the religious susceptibilities of thousands ... or offend youth and innocence by the free use of words suggestive of sexual immorality.” 61 App. D. C., at 314, 62 F. 2d, at 853. The court recognized that the licensee had a right to broadcast this material free of prior restraint, but “this does not mean that the government, through agencies established by Congress, may not refuse a renewal of license to one who has abused it.” Id., at 312, 62 F. 2d, at 851.

11 See, e. g., Bay State Beacon, Inc. v. FCC, 84 U. S. App. D. C. 216, 171 F. 2d 826 (1948); Idaho Microwave, Inc. v. FCC, 122 U. S. App. D. C. 253, 352 F. 2d 729 (1965); National Assn. of Theatre Owners v. FCC, 136 U. S. App. D. C. 352, 420 F. 2d 194 (1969), cert. denied, 397 U. S. 922.

12 See, e. g., 67 Cong. Rec. 12615 (1926) (remarks of Sen. Dill); id., at 5480 (remarks of Rep. White); 68 Cong. Rec. 2567 (1927) (remarks of Rep. Scott); Hearings on S. 1 and S. 1754 before the Senate Committee on Interstate Commerce, 69th Cong., 1st Sess., 121 (1926); Hearings on H. R. 5589 before the House Committee on the Merchant Marine and Fisheries, 69th Cong., 1st Sess., 26 and 40 (1926). See also Hearings on H. R. 8825 before the House Committee on the Merchant Marine and Fisheries, 70th Cong., 1st Sess., passim (1928).

13 In addition to § 1464, the Commission also relied on its power to regulate in the public interest under 47 U. S. C. §303 (g). We do not need to consider whether § 303 may have independent significance in a case such as this. The statutes authorizing civil penalties incorporate § 1464, a criminal statute. See 47 U. S. C. §§312 (a) (6), 312(b)(2), and 503 (b)(1)(E) (1970 ed. and Supp. V). But the validity of the civil sanctions is not linked to the validity of the criminal penalty. The legislative history of the provisions establishes their independence. As enacted in 1927 and 1934, the prohibition on indecent speech was separate from the provisions imposing civil and criminal penalties for violating the prohibition. Radio Act of 1927, §§ 14, 29, and 33, 44 Stat. 1168 and 1173; Communications Act of 1934, §§ 312, 326, and 501, 48 Stat. 1086, 1091, and 1100, 47 U. S. C. §§ 312, 326, and 501 (1970 ed. and Supp. V). The 1927 and 1934 Acts indicated in the strongest possible language that any invalid provision was separable from the rest of the Act. Radio Act of 1927, § 38, 44 Stat. 1174; Communications Act of 1934, § 608, 48 Stat. 1105, 47 U. S. C. § 608. Although the 1948 codification of the criminal laws and the addition of new civil penalties changes the statutory structure, no substantive change was apparently intended. Cf. Tidewater Oil Co. v. United States, 409 U. S. 151, 162. Accordingly, we need not consider any question relating to the possible application of § 1464 as a criminal statute.

14 Webster defines the term as “a: altogether unbecoming: contrary to what the nature of things or what circumstances would dictate as right or expected or appropriate: hardly suitable: UNSEEMLY . . . b: not conforming to generally accepted standards of morality: . . . Webster’s Third New International Dictionary (1966).

15 Indeed, at one point, he used “indecency” as a shorthand term for “patent offensiveness,” 370 U. S., at 482, a usage strikingly similar to the Commission’s definition in this case. 56 F. C. C. 2d, at 98.

16 “ ‘[W]hile a nudist magazine may be within the protection of the First Amendment . . . the televising of nudes might well raise a serious question of programming contrary to 18 U. S. C. § 1464. . . . Similarly, regardless of whether the “4-letter words” and sexual description, set forth in “lady Chatterly’s Lover,” (when considered in the context of the whole book) make the book obscene for mailability purposes, the utterance of such words or the depiction of such sexual activity on radio or TV would raise similar public interest and section 1464 questions.’” Enbanc Programing Inquiry, 44 F. C. C. 2303, 2307 (1960). See also In re WUHY-FM, 24 F. C. C. 2d 408, 412 (1970); In re Sonderliyig Broadcasting Corp., 27 R. R. 2d 285, on reconsideration, 41 F. C. C. 2d 777 (1973), aff’d on other grounds sub nom. Illinois Citizens Committee for Broadcasting v. FCC, 169 U. S. App. D. C. 166, 515 F. 2d 397 (1974); In re Mile High Stations, Inc., 28 F. C. C. 795 (1960); In re Palmetto Broadcasting Co., 33 F. C. C. 250 (1962), reconsideration denied, 34 F. C. C. 101 (1963), aff’d on other grounds sub nom. Robinson v. FCC, 118 U. S. App. D. C. 144, 334 F. 2d 534 (1964), cert. denied, 379 U. S. 843.

17 This conclusion is reinforced by noting the different constitutional limits on Congress’ power to regulate the two different subjects. Use of the postal power to regulate material that is not fraudulent or obscene raises “grave constitutional questions.” Hannegan v. Esquire, Inc., 327 U. S. 146, 156. But it is well settled that the First Amendment- has a special meaning in the broadcasting context. See, e. g., FCC v. National Citizens Committee for Broadcasting, 436 U. S. 775; Bed Lion Broadcasting Co. v. FCC, 395 U. S. 367; Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94. For this reason, the presumption that Congress never intends to exceed constitutional limits, which supported Hamling’s narrow reading of § 1461, does not support a comparable reading of § 1464.

18 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.

19 Pacifica’s position would, of course, deprive the Commission of any power to regulate erotic telecasts unless they were obscene under Miller v. California, 413 U. S. 15. Anything that could be sold at a newsstand for private examination could be publicly displayed on television.

We are assured by Pacifica that the free play of market forces will discourage indecent programming. “Smut may,” as Judge Leventhal put it, “drive itself from the market and confound Gresham,” 181 U. S. App. D. C., at 158, 556 F. 2d, at 35; the prosperity of those who traffic in pornographic literature and films would appear to justify skepticism.

20 Although neither Mr. Justice Powell nor Mr. Justice BrenNAN directly confronts this question, both have answered it affirmatively, the latter explicitly, post, at 768 n. 3, and the former implicitly by concurring in a judgment that could not otherwise stand.

21 See, e. g., Madison School District v. Wisconsin Employment Relations Comm’n, 429 U. S. 167, 175-176; First National Bank of Boston v. Bellotti, 435 U. S. 765.

22 The monologue does present a point of view; it attempts to show that the words it uses are “harmless” and that our attitudes toward them are “essentially silly.” See supra, at 730. The Commission objects, not to this point of view, but to the way in which it is expressed. The belief that these words are harmless does not necessarily confer a First Amendment privilege to use them while proselytizing, just as the conviction that obscenity is harmless does not license one to communicate that conviction by the indiscriminate distribution of an obscene leaflet.

28 The Commission stated: “Obnoxious, gutter language describing these matters has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions . . . .” 56 F. C. C. 2d, at 98. Our society has a tradition of performing certain bodily functions in private, and of severely limiting the public exposure or discussion of such matters. Verbal or physical acts exposing those intimacies are offensive irrespective of any message that may accompany the exposure.

24 With respect to other types of speech, the Court has tailored its protection to both the abuses and the uses to which it might be put. See, e. g., New York Times Co. v. Sullivan, 376 U. S. 254 (special scienter rules in libel suits brought by public officials); Bates v. State Bar of Arizona, 433 U. S. 350 (government may strictly regulate truthfulness in commercial speech). See also Young v. American Mini Theatres, Inc., 427 U. S. 50, 82 n. 6 (Powell, J., concurring).

25 The importance of context is illustrated by the Cohen case. That case arose when Paul Cohen entered a Los Angeles courthouse wearing a jacket emblazoned with the words “Fuck the Draft.” After entering the courtroom, he took the jacket off and folded it. 403 U. S., at 19 n. 3. So far as the evidence showed, no one in the courthouse was offended by his jacket. Nonetheless, when he left the courtroom, Cohen was arrested, convicted of disturbing the peace, and sentenced to 30 days in prison.

In holding that criminal sanctions could not be imposed on Cohen for his political statement in a public place, the Court rejected the argument that his speech would offend unwilling viewers; it noted that “there was no evidence that persons powerless to avoid [his] conduct did in fact object to it.” Id., at 22. In contrast, in this case the Commission was responding to a listener’s strenuous complaint, and Pacifica does not question its determination that this afternoon broadcast was likely to offend listeners. It should be noted that the Commission imposed a far more moderate penalty on Pacifica than the state court imposed on Cohen. Even the strongest civil penalty at the Commission’s command does not include criminal prosecution. See n. 1, sufra.

26 47 U. S. C. §§309 (a), 312 (a)(2); FCC v. WOKO, Inc., 329 U. S. 223, 229. Cf. Shuttlesworth v. Birmingham, 394 U. S. 147; Staub v. Baxley, 355 U. S. 313.

27 Outside the home, the balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker, requiring the offended listener to turn away. See Erznoznik v. Jacksonville, 422 U. S. 205. As we noted in Cohen v. California:

“While this Court has recognized that government may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue ... , we have at the same time consistently stressed that 'we are often “captives” outside the sanctuary of the home and subject to objectionable speech.’ ” 403 U. S., at 21.

The problem of harassing phone calls is hardly hypothetical. Congress has recently found it necessary to prohibit debt collectors from “plae[ing] telephone calls without meaningful disclosure of the caller’s identity”; from “engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number”; and from “us[ing] obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.” Consumer Credit Protection Act Amendments, 91 Stat. 877, 15 U. S. C. § 1692d (1976 ed., Supp. II).

28 The Commission’s action does not by any means reduce adults to ■hearing only what is fit for children. Cf. Butler v. Michigan, 352 U. S. 380, 383. Adults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear these words. In fact, the Commission has not unequivocally closed even broadcasting to speech of this sort; whether broadcast audiences in the late evening contain so few children that playing this monologue would be permissible is an issue neither the Commission nor this Court has decided.

29 Even a prime-time recitation of Geoffrey Chaucer’s Miller’s Tale would not be likely to command the attention of many children who are both old enough to understand and young enough to be adversely affected by passages such as: “And prively he caughte hire by the queynte.” The Canterbury Tales, Chaucer’s Complete Works (Cambridge ed. 1933), p. 58, 1. 3276.

1 See generally Judge Leventhal’s thoughtful opinion in the Court of Appeals. 181 U. S. App. D. C. 132, 155-158, 556 F. 2d 9, 32-35 (1977) (dissenting opinion).