Decency Redux: The Curious History of the New FCC Broadcast Indecency Policy

Abstract

Lord what a row you're makingMolly Bloom' This Article explores the question whether "indecent" speech can be regulated decently.Indecent speech is a term of art.It derives from title 18, section 1464, of the United States Code, which provides that: "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." 2 The standard used by the Federal Communications Commission (FCC or Commission) in enforcing this statute was determined by, and for many years narrowly limited to, the facts of a comic routine considered by the United States Supreme Court in FCC v. Pacifica Foundation. 3 In that case, the Supreme Court, in a plurality opinion, upheld an FCC ruling that George Carlin's twelve-minute monologue, titled "Filthy Words," broadcast at 2 p.m. when children were in the audience, 4 was "patently offensive."The Pacifica decision affirmed the Commission's constitutional authority to "channel" the "repetitive, deliberate use" 5 of words that referred to excretory or sexual activities or organs in an offensive-but nonobscene 6 --fashion.In the wake of this decision, the Commission adopted a * The authors are partners in the law firm of Haley, Bader and Potts, Washington, D.C.