The Story of FCC v. Pacifica (and Its Second Life)
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Description
To most people who teach and study FCC v. Pacifica Foundation, which upheld the Commission’s authority to regulate broadcast indecency, the decision probably seems ridiculous. Many view the result as too queasy about the word choices of social critics, and too comfortable with government regulators protecting mainstream audiences. Given a questionable evidentiary basis for the FCC’s child-protection mission, moreover, the principal function of the regulatory apparatus might be mollifying self-appointed representatives of polite society. Furthermore, the decision has an archaic quality. The 1973 radio broadcast of George Carlin’s Filthy Words routine rebuked by the FCC in 1975 and reviewed by the Supreme Court in 1978 is tame compared to readily accessible content in 2011. Originally, Carlin played with seven words on stage and on a vinyl album. Now, wherever internet access exists, he can be watched reading a list of over two-hundred filthy words from a long scroll. We cannot be confident, if ever we were, that the FCC can seriously affect the supply of indecent content, the demand for it, or the unwitting exposure to it. My own longstanding sympathies are with these views. As a child in the 1970s, I had access to a version of the Carlin routine that drew the FCC response in Pacifica. It was a cut on an album in my parents’ collection, and my brother and I had much of the routine memorized before either of us was ten years old. I have not been able to see my early interaction with Carlin’s routine as injurious. Quite the opposite. Many of my colleagues surely feel the same way about the value of such content. Nevertheless, the origins and outgrowths of Pacifica are worth another look. The Supreme Court’s work in that case was instigated and shaped by large-scale and persistently clashing societal forces. The 1970s might have been an acutely dramatic period of social convulsion and exhaustion, but similar episodes will recur. So, too, there always will be an avant-garde coupled with a reactionary culture. They depend on each other. And, oddly enough, the technological changes that make Pacifica seem dated could turn the tables on the case’s critics. The following chapter provides a background to Pacifica and some observations about its aftermath. The story is complicated. It involves brash content providers, conservative social movements, and shifting agency priorities, along with arguably manufactured controversies, backfiring lawyer strategies, and a surprise swing voter on the Supreme Court. Not all of the story can be told here. But I do hope to offer insight into the continuing and perhaps ironic significance of the case.
Source Publication
First Amendment Stories
Source Editors/Authors
Richard W. Garnett, Andrew Koppelman
Publication Date
2012
Recommended Citation
Samaha, Adam M., "The Story of FCC v. Pacifica (and Its Second Life)" (2012). Faculty Chapters. 1811.
https://gretchen.law.nyu.edu/fac-chapt/1811
