F.C.C. v. Pacifica Foundation/Concurrence Powell

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F.C.C. v. Pacifica Foundation by Lewis F. Powell, Jr.
Concurrence
Court Documents
Case Syllabus
Opinion of the Court
Concurring Opinion
Powell
Dissenting Opinions
Brennan
Stewart

Mr. Justice POWELL, with whom Mr. Justice BLACKMUN joins, concurring in part and concurring in the judgment.

I join Parts I, II, III, and IV-C of Mr. Justice STEVENS' opinion. The Court today reviews only the Commission's holding that Carlin's monologue was indecent “as broadcast” [p756] at two o'clock in the afternoon, and not the broad sweep of the Commission's opinion. Ante, at 3032-3033. In addition to being consistent with our settled practice of not deciding constitutional issues unnecessarily, see ante, at 3032; Ashwander v. TVA, 297 U.S. 288, 345-348, 56 S.Ct. 466, 482-484, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), this narrow focus also is conducive to the orderly development of this relatively new and difficult area of law, in the first instance by the Commission, and then by the reviewing courts. See 181 U.S.App.D.C. 132, 158-160, 556 F.2d 9, 35-37 (1977) (Leventhal, J., dissenting).

I also agree with much that is said in Part IV of Mr. Justice STEVENS' opinion, and with its conclusion that the Commission's holding in this case does not violate the First Amendment. Because I do not subscribe to all that is said in Part IV, however, I state my views separately.

I[edit]

It is conceded that the monologue at issue here is not obscene in the constitutional sense. See 56 F.C.C.2d 94, 98 (1975); Brief for Petitioner 18. Nor, in this context, does its language constitute “fighting words” within the meaning of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Some of the words used have been held protected by the First Amendment in other cases and contexts. E. g., Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973); Papish v. University of Missouri Curators, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); see also Eaton v. Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974). I do not think Carlin, consistently with the First Amendment, could be punished for delivering the same monologue to a live audience composed of adults who, knowing what to expect, chose to attend his performance. See Brown v. Oklahoma, 408 U.S. 914, 92 S.Ct. 2507, 33 L.Ed.2d 326 (1972) (POWELL, J., concurring in result). And I would assume that an adult could not constitutionally be prohibited from purchasing a recording or transcript of the monologue [p757] and playing or reading it in the privacy of his own home. Cf. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).

But it also is true that the language employed is, to most people, vulgar and offensive. It was chosen specifically for this quality, and it was repeated over and over as a sort of verbal shock treatment. The Commission did not err in characterizing the narrow category of language used here as “patently offensive” to most people regardless of age.

The issue, however, is whether the Commission may impose civil sanctions on a licensee radio station for broadcasting the monologue at two o'clock in the afternoon. The Commission's primary concern was to prevent the broadcast from reaching the ears of unsupervised children who were likely to be in the audience at that hour. In essence, the Commission sought to “channel” the monologue to hours when the fewest unsupervised children would be exposed to it. See 56 F.C.C.2d, at 98. In my view, this consideration provides strong support for the Commission's holding.[1]

The Court has recognized society's right to “adopt more stringent controls on communicative materials available to youths than on those available to adults.” Erznoznik v. Jacksonville, 422 U.S. 205, 212, 95 S.Ct. 2268, 2274, 45 L.Ed.2d 125 (1975); see also, e. g., Miller v. California, 413 U.S. 15, 36 n. 17, 93 S.Ct. 2607, 2621, 37 L.Ed.2d 419 (1973); Ginsberg v. New York, 390 U.S. 629, 636-641, 88 S.Ct. 1274, 1278-1282, 20 L.Ed.2d 195 (1968); Jacobellis v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964) (opinion of BRENNAN, J.). This recognition stems in large part from the fact that “a child · · · is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.” Ginsberg v. New York, supra, 390 U.S., at 649-650, 88 S.Ct., at 1286 (STEWART, J., concurring in result). Thus, children may not be able to protect themselves from speech which, although shocking to most adults, generally may be avoided by the unwilling [p758] through the exercise of choice. At the same time, such speech may have a deeper and more lasting negative effect on a child than on an adult. For these reasons, society may prevent the general dissemination of such speech to children, leaving to parents the decision as to what speech of this kind their children shall hear and repeat:

“[C]onstitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.’ Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944)]. The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility.” Id., at 639, 88 S.Ct., at 1280.

The Commission properly held that the speech from which society may attempt to shield its children is not limited to that which appeals to the youthful prurient interest. The language involved in this case is as potentially degrading and harmful to children as representations of many erotic acts.

In most instances, the dissemination of this kind of speech to children may be limited without also limiting willing adults' access to it. Sellers of printed and recorded matter and exhibitors of motion pictures and live performances may be required to shut their doors to children, but such a requirement has no effect on adults' access. See id., at 634-635, 88 S.Ct., at 1277-1278. The difficulty is that such a physical separation of the audience cannot be accomplished in the broadcast media. During most of the broadcast hours, both adults and unsupervised children are likely to be in the broadcast audience, and the broadcaster cannot reach willing adults without also reaching [p759] children. This, as the Court emphasizes, is one of the distinctions between the broadcast and other media to which we often have adverted as justifying a different treatment of the broadcast media for First Amendment purposes. See Bates v. State Bar of Arizona, 433 U.S. 350, 384, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 101, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386-387, 89 S.Ct. 1794, 1804-1805, 23 L.Ed.2d 371 (1969); Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582 (DC 1971), aff'd sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000, 92 S.Ct. 1289, 31 L.Ed.2d 472 (1972); see generally Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-503, 72 S.Ct. 777, 780-781, 96 L.Ed. 1098 (1952). In my view, the Commission was entitled to give substantial weight to this difference in reaching its decision in this case.

A second difference, not without relevance, is that broadcasting-unlike most other forms of communication-comes directly into the home, the one place where people ordinarily have the right not to be assaulted by uninvited and offensive sights and sounds. Erznoznik v. Jacksonville, supra, 422 U.S., at 209, 95 S.Ct., at 2272; Cohen v. California, 403 U.S., at 21, 91 S.Ct., at 1786; Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). Although the First Amendment may require unwilling adults to absorb the first blow of offensive but protected speech when they are in public before they turn away, see, e. g., Erznoznik, supra, 422 U.S., at 210-211, 95 S.Ct., at 2273-2274; but cf. Rosenfeld v. New Jersey, 408 U.S. 901, 903-909, 92 S.Ct. 2479-2481, 33 L.Ed.2d 321 (1972) (POWELL, J., dissenting), a different order of values obtains in the home. “That we are often ‘captives' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere.” Rowan v. Post Office Dept., supra, 397 U.S., at 738, 90 S.Ct., at 1491. The Commission also was entitled to give this factor appropriate weight in the circumstances of the instant case. This is not to say, however, that the Commission has an unrestricted license to decide what speech, protected in other media, may be banned from the airwaves in order to protect [p760] unwilling adults from momentary exposure to it in their homes.[2] Making the sensitive judgments required in these cases is not easy. But this responsibility has been reposed initially in the Commission, and its judgment is entitled to respect.

It is argued that despite society's right to protect its children from this kind of speech, and despite everyone's interest in not being assaulted by offensive speech in the home, the Commission's holding in this case is impermissible because it prevents willing adults from listening to Carlin's monologue over the radio in the early afternoon hours. It is said that this ruling will have the effect of “reduc[ing] the adult population · · · to [hearing] only what is fit for children.” Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed.2d 412 (1957). This argument is not without force. The Commission certainly should consider it as it develops standards in this area. But it is not sufficiently strong to leave the Commission powerless to act in circumstances such as those in this case.

The Commission's holding does not prevent willing adults from purchasing Carlin's record, from attending his performances, or, indeed, from reading the transcript reprinted as an appendix to the Court's opinion. On its face, it does not prevent respondent Pacifica Foundation from broadcasting the monologue during late evening hours when fewer children are likely to be in the audience, nor from broadcasting discussions of the contemporary use of language at any time during the day. The Commission's holding, and certainly the Court's holding today, does not speak to cases involving the isolated [p761] use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here. In short, I agree that on the facts of this case, the Commission's order did not violate respondent's First Amendment rights.

II[edit]

As the foregoing demonstrates, my views are generally in accord with what is said in Part IV-C of Mr. Justice STEVENS' opinion. See ante, at 3039-3041. I therefore join that portion of his opinion. I do not join Part IV-B, however, because I do not subscribe to the theory that the Justices of this Court are free generally to decide on the basis of its content which speech protected by the First Amendment is most “valuable” and hence deserving of the most protection, and which is less “valuable” and hence deserving of less protection. Compare ante, at 3037-3040; Young v. American Mini Theatres, Inc., 427 U.S. 50, 63-73, 96 S.Ct. 2440, 2448-2454, 49 L.Ed.2d 310 (1976) (opinion of Stevens, J.), with id., at 73 n. 1, 96 S.Ct., at 2453 (Powell, J., concurring).[3] In my view, the result in this case does not turn on whether Carlin's monologue, viewed as a whole, or the words that constitute it, have more or less “value” than a candidate's campaign speech. This is a judgment for each person to make, not one for the judges to impose upon him.[4]

As Mr. Justice STEVENS points out, however, ante, at 3032, the Commission's order was limited to the facts of this case; “it did not purport to engage in formal rulemaking or in the promulgation of any regulations.” In addition, since the Commission may be expected to proceed cautiously, as it has in the past, cf. Brief for Petitioner 42-43, and n. 31, I do not foresee an undue “chilling” effect on broadcasters' exercise of their rights. I agree, therefore, that respondent's overbreadth challenge is meritless.

[p762]

The result turns instead on the unique characteristics of the broadcast media, combined with society's right to protect its children from speech generally agreed to be inappropriate for their years, and with the interest of unwilling adults in not being assaulted by such offensive speech in their homes. Moreover, I doubt whether today's decision will prevent any adult who wishes to receive Carlin's message in Carlin's own words from doing so, and from making for himself a value judgment as to the merit of the message and words. Cf. Id., at 77-79, 96 S.Ct., at 2455-2457 (POWELL, J., concurring). These are the grounds upon which I join the judgment of the Court as to Part IV.

Notes[edit]

  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).
  2. It is true that the radio listener quickly may tune out speech that is offensive to him. In addition, broadcasters may preface potentially offensive programs with warnings. But such warnings do not help the unsuspecting listener who tunes in at the middle of a program. In this respect, too, broadcasting appears to differ from books and records, which may carry warnings on their face, and from motion pictures and live performances, which may carry warnings on their marquees.
  3. The Court has, however, created a limited exception to this rule in order to bring commercial speech within the protection of the First Amendment. See Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456, 98 S.Ct. 1912, 1918-1919, 56 L.Ed.2d 444 (1978).
  4. For much the same reason, I also do not join Part IV-A. I had not thought that the application vel non of overbreadth analysis should depend on the Court's judgment as to the value of the protected speech that might be deterred. Cf. ante, at 3037. Except in the context of commercial speech, see Bates v. State Bar of Arizona, 433 U.S. 350, 380-381, 97 S.Ct. 2691, 2707-2708, 53 L.Ed.2d 810 (1977), it has not in the past. See, e. g., Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972).