Report No. 109

5.6. An American ruling.-

It may also be of relevance to refer, at this stage, to a decision of the Supreme Court of the United States, where the Court had to consider the question of "indecent" speech in the context of regulation of broadcast matter.1 In that case, the authority of the Federal Communications Commission to effect qualitative content control through the regulation of radio broadcast which that Commission finds "indecent but not obscene", was challenged. The case concerned a recorded monologue, broadcast on the New York radio station in the early afternoon, as part of a discussion of contemporary attitudes towards language.

The title of the monologue was "Filthy Words" and the broadcast was prefaced by an advice that the record contained "sensitive language which might be regarded as offensive to some". Five weeks later, the Federal Communications Commission received a complaint about the programme from a listener who had heard the broadcast while driving with his fifteen year old son. The Commission granted the complaint, though it declined to impose formal sanctions on the Radio Station. The Commission's conclusion was, that the seven words which had been broadcast and objected to, depicted "sexual and excretory activities and organs in a manner patently offensive by contemporary community standards for the broadcast medium".

The words in question were therefore "indecent" and prohibited by 18 United States Code, section 1464, which forbids the use of "any obscene, indecent, or profane language by means of a radio communication". Expressly stating that the "indecent" speech which it sought to control was not subsumed by the concept of obscenity, the Commission justified using the broader category by reference to the "unique qualities" of the broadcast media.

1. F.C.C. v. Pacifica Foundation, (1978), 98 S Ct 3026.

5.7. The action of the Federal Communications Commission was reversed by a divided panel of the U.S. Court of Appeal for the District of Columbia Circuit. On appeal, the Supreme Court of the United States (by a majority of five against four) reversed the judgment of the Court of Appeal. Mr. Justice Stevens rejected the contention that "indecent" means no more than obscene in 18 U.S. Code, section 1464. He determined that "prurient appeal is an element of the obscene, but the normal definition of "indecent" merely refers to non-conformance with "accepted standards of morality". He conceded that the Supreme Court had previously construed the expression "indecent" (as occurring in similar statutes) to mean "obscene". But he reasoned that the history of section 1464, and the type of media to which it was addressed (broadcast as opposed to print), warranted a different construction in its case.