Full opinion text
TAMM, Circuit Judge: This appeal by Pacifica Foundation (Pacifica) challenges a Federal Communications Commission (FCC or Commission) ruling which purports to ban prospectively the broadcast, whenever children are in the audience, of language which depicts sexual or excretory activities and organs, specifically seven patently offensive words. Without deciding the perplexing question of whether the FCC, because of the unique characteristics of radio and television, may prohibit non-obscene speech or speech that would otherwise be constitutionally protected, we find that the challenged ruling is overbroad and carries the FCC beyond protection of the public interest into the forbidden realm of censorship. For the reasons which follow, we reverse the Commission’s order. I. FACTUAL BACKGROUND On the afternoon of October 30, 1973, Station WBAI, New York, New York (which is licensed to Pacifica), was conducting a general discussion of contemporary society’s attitude toward language as part of its regular programming. The WBAI host played a segment from the album, “George Carlin, Occupation: Foole,” Little David Records. Immediately prior to the broadcast of the Carlin monologue, listeners were advised that it included sensitive language which might be regarded as offensive to some. Those who might be offended were advised to change the station and return to WBAI in fifteen minutes. The monologue consisted of a comedy routine that was almost entirely devoted to the use of seven four-letter words depicting sexual or excretory organs and activities. On December 3, 1973, the Commission received a complaint from a man in New York stating that, while driving in his car with his young son, he had heard the WBAI broadcast of the Carlin monologue. This was the only complaint lodged with either the FCC or WBAI concerning the Carlin broadcast. The Commission determined that clarification of its definition of the term “indecent” was in order. As a result, in Pacifica Foundation, 56 F.C.C.2d 94 (1975) (hereinafter Order), the Commission defined as indecent, 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. The Commission found that the seven four-letter words contained in the Carlin monologue depicted sexual or excretory organs and activities in patently offensive manner, judged by contemporary community standards for the broadcast medium, and accordingly, were indecent. The Commission prohibited them from being broadcast under the authority granted it by 18 U.S.C. § 1464 (1970). As a further rationale for its decision, the Commission cited its statutory obligation to promote the larger and more effective use of radio in the public interest. The underlying rationale of the Order can be traced to the Commission’s view of broadcasting vis-á-vis other modes of communication and expression. According to the Commission, the broadcasting medium carries with it certain unique characteristics which distinguish it from other modes of communication and expression. In the Commission’s view the most important characteristic of the broadcast medium is its intrusive nature. Unlike other modes of expression, the television or radio broadcast comes directly into the home without any significant affirmative activity on the part of the listener. See Eastern Educational Radio (WUHY-FM), 24 F.C.C.2d 408 (1970); Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S.App.D.C. 166, 515 F.2d 397 (1975). In the Order the FCC concluded this intrusive nature was a critical factor due to four important considerations: (1) children have access to radios and in some cases are unsupervised by parents; (2) radio receivers are in the home, a place where people’s privacy interest is entitled to extra deference; (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. Order at 97. In light of these considerations the Commission felt that questions concerning the broadcast of patently offensive language should be dealt with in a public nuisance context. As a result the Commission determined that the principle of channeling should be borrowed from nuisance law and applied to the broadcasting medium. Rather than prohibit the broadcast of indecent language altogether, the Commission sought to channel it to times of the day when it would offend the fewest number of listeners. In hopes of avoiding the charge that the Order was overbroad, the Commission declared that the channeling was specifically intended to protect children from exposure 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. Order at 98. Finally, the Commission' did note that when the number of children in the audience is reduced to a minimum, a different standard might conceivably be used. In such an analysis the definition of indecent would remain the same, however, the Commission would also consider whether the material had serious literary, artistic, political or scientific value. Order at 100. In concurring statements, Commissioners Reid and Quello felt the Order did not go far enough. Commissioner Reid believed indecent language was inappropriate for broadcast at any time. Commissioner Quello was in agreement, commenting that “garbage is garbage” and it should all be prohibited from the airwaves. Id. at 102, 103. Appellant Pacifica argues that section 1464 is unconstitutionally vague unless the term indecent is subsumed by the term obscene as defined in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Pacifica contends that the Supreme Court, in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) and United States v. 12 200 Ft. Reels of Super 8mm Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), has made it clear that the term indecent, as used in federal criminal statutes, must be construed as referring to material involving the specific types of explicit conduct defined in Miller v. California, supra, in order for the constitutionality of the statute employing the term to be sustained. Pacifica also cites numerous other federal and state court decisions which have invariably held that the term indecent, as used in criminal statutes, refers to material which appeals to prurient interest as distinguished from material which is merely coarse, rude, vulgar, profane or opprobrious. Pacifica argues that the Carlin monologue is not obscene because it does not appeal to any prurient interest and because it has literary and political value. Therefore, Pacifica argues it is entitled to constitutional protection in light of Miller and Hamling, supra. Pacifica concludes that such constitutional protection means that these words may not be prohibited by section 1464. In addition, Pacifica contends that the non-obscene language used in the Carlin monologue does not come within the fighting words prohibition set forth in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. -766, 86 L.Ed. 1031 (1942). Finally, Pacifica contends that the FCC standard of indecency, as expressed in the Order, is overbroad as it does not assure that programs of serious literary, artistic, political or scientific value will be allowed to air. The amicus brief in this appeal argues that the Order is too far-reaching and will have an especially harsh effect on the broadcast of literature depicting minority cultures. In addition, the amicus brief quotes studies, which show that large numbers of children are in the broadcast audience until 1:30 a. m., as further evidence that the Order is overbroad. One week prior to oral argument in this case the FCC released a memorandum and order seeking to clarify its earlier Order. The order of clarification was in response to a petition filed by the Radio Television News Directors Association. In the clarification order, the Commission declared that it never intended to place an absolute prohibition on the broadcast of indecent language but only sought to channel it to times of the day when children would least likely be exposed to it. The clarifying order, in attempting to narrow the scope of the original Order, ruled that indecent language could be broadcast in a news or public affairs program or otherwise if it was aired at a time when the number of children in the audience was reduced to a minimum, if sufficient warning were given to unconsenting adults, and if the language in context had serious literary, artistic, political or scientific value. The Commission determined that it would be inequitable to hold a licensee responsible for indecent language broadcast during live coverage of a newsmaking event. The Commission thought it better to trust the licensee to exercise judgment, responsibility and sensitivity to the needs, interest, and tastes of the community. II. RESOLUTION Despite the Commission’s professed intentions, the direct effect of its Order is to inhibit the free and robust exchange of ideas on a wide range of issues and subjects by means of radio and television communications. In promulgating the Order the Commission has ignored both the statute which forbids it to censor radio communications and its own previous decisions and orders which leave the question of programming content to the discretion of the licensee. The Commission claims that its Order does not censor indecent language but rather channels it to certain times of the day. In fact the Order is censorship, regardless of what the Commission chooses to call it. The intent of the Commission is clear. It is to keep language that describes sexual or excretory organs and activities from the airwaves when there is a reasonable risk that children may be in the audience. The Commission expressly states that this language has “no place on radio” and that when children are in the audience a claim that it has literary, artistic, political or scientific value will not redeem it. Order at 98. As the study cited by the amicus curiae, supra note 7, illustrates, large numbers of children are in the broadcast audience until 1:30 a. m. The number of children watching television does not fall below one million until 1:00 a. m. As long as such large numbers of children are in the audience the seven words noted in the Order may not be broadcast. Whether the broadcast containing such words may have serious artistic, literary, political or scientific value has no bearing on the prohibitive effect of the Order. The Commission’s action proscribes the uncensored broadcast of many of the great works of literature including Shakespearian plays and contemporary plays which have won critical acclaim, the works of renowned classical and contemporary poets and writers, and passages from the Bible. Section 326 of the Communications Act specifically prohibits the FCC from interfering with licensee discretion in programming. Writers Guild of America, West, Inc. v. FCC, 423 F.Supp. 1064 (C.D.Cal., 1976). Such interference is exactly what the Order calls for. Therefore it is an action which takes the Commission beyond the limits of the powers which Congress has delegated to it. Congress specifically withheld from the Commission any power to censor broadcasts. 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, 89 S.Ct. 1190, 22 L.Ed.2d 459 (1969); 47 U.S.C. § 326 (1970). Any examination of thought or expression in order to prevent publication of objectionable material is censorship. 403 F.2d 169. In an effort to sustain the validity of its Order the Commission labels its prospective ban a channeling mechanism. The label is unimportant, the effect of the Order is critical. The effect is that of censorship and that is beyond the mandate of the FCC. In past decisions the Commission has recognized the ban against censorship and has taken another tack against indecent language. In Jack Straw Memorial Foundation, 29 F.C.C.2d 334 (1971), the Commission determined that the decision whether to broadcast obscene or indecent language was a licensee decision. In this case, the licensee, after careful consideration, broadcast the record, “Murder at Kent State”, which contained language which the licensee considered obscene and ordinarily would not have permitted to be broadcast. The trustees and managerial employees decided that in their judgment the use of the particular language was necessary under the circumstances. In its ruling the Commission held that [t]his is a matter of judgment which we conclude the Commission has left to the licensee. In this case, language was not broadcast for shock or sensationalism, but rather for the purpose of presenting a vivid accurate account of a disastrous incident in our recent history. We conclude that on this exercise of judgment, the licensee conformed to standards prescribed by the Commission as well as its own policies regarding suitability. 29 F.C.C.2d at 354. In Oliver R. Grace, 22 F.C.C.2d 667 (1970), the Commission, recognizing that section 326 of the Communications Act prohibited it from censoring broadcast matter, held that program choice was the responsibility of the licensee; the licensee was required to ascertain and reasonably serve the needs and interests of his community; and the charge that programs are vulgar or presented without due regard for sensitivity, intelligence, and taste, was not properly cognizable by the Commission, in light of the proscription against censorship. Id. at 668. The importance of independent judgment by local licensees has been affirmed again and again by the FCC and the courts. Perhaps the most important ruling for our purpose is the Commission’s clarification memorandum regarding the original Order. There the Commission recognized that in 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. Pacifica Foundation, 59 F.C.C.2d 892, 893 n. 1 (1976). Thus the Commission indirectly admitted it had gone too far in banning “indecent” language from the airwaves. The Commission decided it would be better to trust the licensee to exercise judgment, responsibility and sensitivity to the community’s needs, interests and tastes. Id. Previously the Commission has readily admitted that its authority in the area of profane, obscene, or indecent language is governed by federal statutes as interpreted by the courts. The FCC has recognized that it must perform its duties in this area without infringing upon constitutional guarantees of freedom of speech and of the press, Columbia Broadcasting System, Inc., 21 P & F Radio Reg.2d 497 (1971), and without violating the statutory obligations of section 326 of the Communications Act. It must continue to do so. We do not find it necessary to determine whether the term “indecent” can be more narrowly defined than the term “obscene”. The FCC’s position is that “indecent” language may be distinguished from “obscene” language in that it lacks the element of appeal to prurient interest and that when children are in the audience it cannot be redeemed by a claim that it has literary, artistic, political or scientific value. Order at 98. This question has confronted other courts but there have been no definitive resolutions as yet. In Gagliardo v. United States, 366 F.2d 720 (9th Cir. 1966), the Ninth Circuit left open the question whether indecent, as used in section 1464, could be defined differently from obscene. Although the question of whether indecent might mean something different from obscene was raised in Tallman v. United States, 465 F.2d 282 (7th Cir. 1972), it was not resolved since the case had only been tried on the theory that the defendant had uttered obscene language. The question was considered only tangentially in United States v. Smith, 467 F.2d 1126 (7th Cir. 1972), where the court reversed a conviction under section 1464 on the grounds that the jury had not been instructed as to the meaning of the statutory terms profane and indecent, even though the case had been presented to the jury under an indictment charging the defendant with uttering obscene, indecent and profane language. In reversing the conviction, the court did not suggest in what way, if at all, indecent language might differ from obscene language. It is evident therefore that the term indecent has never been authoritatively construed by the courts in connection with section 1464. Since we feel section 326 of the Communications Act is dispositive of this appeal we do not find it necessary to resolve this difficult question. Unquestionably the Commission’s Order also raises First Amendment considerations. The Commission recognized that Congress had prohibited it from engaging in censorship or interfering “with the right of free speech by means of radio communication.” In the Order, the Commission contends that because of its unique qualities the broadcast medium is not subject to the same constitutional standards that may be applied to other less intrusive forms of expression. There is no doubt that the regulatory authority of the FCC encompasses more than the technical engineering aspects of the broadcast medium. Under its mandate to promote the public interest, the Commission may promulgate rules on a variety of matters, including broadcast programming. However, any such actions by the Commission must be carefully tailored to meet the requirements of the First Amendment, as Congress has explicitly mandated in section 326 of the Communications Act. The requirements of the First Amendment relating to obscenity are found in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). In Miller, the Court set forth a subjective standard by which the trier of fact could determine whether material was obscene. The standard developed by the Court involves: a) whether the average person applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and c) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value Id. at 24, 93 S.Ct. 2607. Applying the Miller standard to the language used in the Carlin monologue, it is clear that although the language is crude and vulgar by most standards it is not obscene. The FCC agrees. Order at 98. As used, the words do not appeal to the prurient interest. They are merely crude statements and are not used to titillate. Furthermore, the words prohibited by the Order may often be connected with programs in the public interest, e. g. plays and live news broadcasts. Thus, these words quite possibly could have literary, political or artistic value. Therefore this non-obscene speech is entitled to First Amendment protection. The Commission claims an exception from First Amendment requirements in order to carry out its duty to promote the use of radio communications in the public interest. The basis of this claim is that the broadcast medium is unique. Assuming, arguendo, that the FCC has the power to prohibit non-obscene speech from being broadcast, the statute or order instituting such a ban must not be overbroad or vague. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). As will be illustrated, the Order, in its application of Section 1464, suffers from overbreadth and vagueness. In Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975), the Court held that rigorous constitutional standards apply when government attempts to regulate expression. Furthermore, when the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power. Id. at 209, 95 S.Ct. 2268. Indeed, when First Amendment freedoms are at stake, the Court has repeatedly emphasized that precision of drafting and clarity of purpose are essential. Id. at 217-18, 95 S.Ct. 2268. The FCC’s regulation of speech per its Order fails to meet the rigorous standards of the Supreme Court. A look at Erznoznik will help illustrate why. There a municipal ordinance made it unlawful for a drive-in theater to exhibit any motion picture in which the human male or female buttocks, human female bare breasts or human bare pubic areas were shown. The city attempted to sustain the ordinance as an effort to protect children. The Court held that minors are entitled to First Amendment protection and only in relatively narrow, well-defined circumstances may the government bar public dissemination of protected materials to them. Erznoznik, 422 U.S. at 212-13, 95 S.Ct. 2268. The Court found the ordinance overbroad in that it sweepingly forbid the display of all films containing any uncovered breasts or buttocks, irrespective of context or pervasiveness. Id. at 213, 95 S.Ct. 2268. Mr. Justice Powell, writing for the majority, stated that [sjpeech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. Id. at 213-14, 95 S.Ct. 2275. The situation in this appeal is quite similar to that in Erznoznik. The Order prohibits the broadcast of seven words at times of the day when there is a reasonable risk that children will be in the audience. Thus, the Order sweepingly forbids any broadcast of the seven words irrespective of context or however innocent or educational they may be. For instance, the Order would prohibit the broadcast of Shakespeare’s The Tempest or Two Gentlemen of Verona. Certain passages of the Bible are also proscribed from broadcast by the Order. Clearly every use of these seven words cannot be deemed offensive even as to minors. In this regard the Order is overbroad. It is not saved by the attempted clarification, for that order would only permit the words to be broadcast on live news shows or very late at night. In addition, the Order is vague in that it fails to define children. Need a nineteen year old and a seven year old be protected from the same offensive language? The Supreme Court has held that in assessing the requisite capacity of individual choice the age of the minor is a significant factor. The Order does not even consider age as a factor, much less a significant one. The Commission also attempts to justify its Order by claiming that, due to the intrusive nature of broadcasting, a captive audience is present. This argument is persuasive when the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure. However, as the Supreme Court noted in Lehman v. City of Shaker Heights, 418 U.S. 298, 302, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974), “[t]he radio can be turned off.” Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), is also analogous to the present situation. Cohen was convicted of violating California Penal Code Section 415, which prohibits “maliciously and wilfully disturbing] the peace or quiet of any neighborhood or person by . offensive conduct . . . .” Cohen had walked in a public corridor of the Los Angeles County Courthouse wearing a jacket inscribed with a four-letter word. California argued that the state may act to protect the unwilling or unsuspecting viewers from unavoidable exposure to such language. Id. at 21, 91 S.Ct. 1780. This reasoning is similar to the FCC’s expressed desire to protect the unsuspecting dial scanner from crude, offensive programming. In Cohen, the Court held that government control of objectionable speech can be tolerated only when substantial privacy interests are being invaded in an essentially intolerable manner. Id. 91 S.Ct. 1780. Such an invasion had not occurred in Cohen, the Court found, because the offensive expression had occurred in public and because citizens could avoid it easily by averting their eyes. Id. Likewise, one can argue an intolerable invasion of privacy would not occur in the broadcast setting. Privacy expectations, even in the home, diminish when listeners choose to gain access to a public medium. The dial scanner may avoid exposure simply by turning the dial. The Commission itself has recognized that listeners do not possess any right to be free from all unpleasantness. In its effort to shield children from language which is not too rugged for many adults the Commission has taken a step toward reducing the adult population to hearing or viewing only that which is fit for children. The Commission’s Order is a classic case of burning the house to roast the pig. See Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957). As defined by Congress, and refined by the FCC and the courts, public interest has always been understood to require licensees to offer some balance in their program format. See Renewal of Standard Broadcast and Television License, 14 F.C. C.2d 1, 8 (1968). Obviously balanced programming requires more than just programs suitable for children. Speech cannot be stifled by the government merely because it would draw an adverse reaction from the majority of the people. Bazaar v. Fortune, 476 F.2d 570, 579 (5th Cir.), modified, 489 F.2d 225 (1973). The Commission assumes that absent FCC action, filth will flood the airwaves. Thus the Commission argues that the alternative of turning the dial will not aid the sensitive person in his efforts to avoid filthy language. The Order provides no empirical data to substantiate this assumption. Moreover, the assumption ignores the forces of economics and of ratings on the substance of programming. Licensees are businesses and depend on advertising revenues for survival. The corporate profit motive and the connection between advertising revenue and audience size suggest that the dike will hold as long as the community remains actually offended by what it sees or hears. Commentators and commissioners alike have noted that broadcast media require majorities, or at least sizeable pluralities, to pay the bills. If they are correct, and if the Commission truly seeks only to enforce community standards, the market should limit the filth accordingly. CONCLUSION As we find that the Commission’s Order is in violation of its duty to avoid censorship of radio communications under 47 U.S.C. § 326 and that even assuming, arguendo, that the Commission may regulate non-obscene speech, nevertheless its Order is over-broad and vague, therefore we must reverse the Order. We should continue to trust the licensee to exercise judgment, responsibility, and sensitivity to the community’s needs, interests and tastes. To whatever extent we err, or the Commission errs in balancing its duties, it must be in favor of preserving the values of free expression and freedom from governmental interference in matters of taste. So ordered. . 18 U.S.C. § 1464 (1970) 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. . 47 U.S.C. § 303 (1970) provides: Except as otherwise provided in this Chapter, the Commission from time to time, as public convenience, interest, or necessity requires, shall: . . . (g) Study new uses for radio, provide for experimental uses of frequencies, and generally encourage the larger and more effective use of radio in the public interest .... . The law of nuisance does not say, for example, that no one shall maintain a cement plant; it simply says that no one shall maintain a cement plant in an inappropriate place, such as a residential neighborhood. . The Miller standard is a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; b) whether the work depicts or describes in a patently offensive way, sexual conduct specifically defined by the applicable state law; and c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. 413 U.S. at 24, 93 S.Ct. at 2615. . Pacifica’s Brief at 24, n. 23. . See App. B. at 28, et seq. . Amicus’s Brief at 17 quoting Statement of John A. Schneider, Before the House Subcommittee on Communications, July 15, 1975, p. 9. . Pacifica Foundation, 59 F.C.C.2d 892 (1976). . Id. . Id. . Id. . Id. . 47 U.S.C. § 326 (1970) provides: Nothing in this chapter 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. . See Sonderling Broadcasting Corp., 41 F.C. C.2d 777 (1973); Jack Straw Memorial Foundation, 29 F.C.C.2d 334 (1971); Columbia Broadcasting System, Inc., 21 P&F Radio Reg.2d 497 (1971); Oliver R. Grace, 22 F.C.C.2d 667 (1970). . App. B. at 28-39. . See Writers Guild of America, West, Inc. v. FCC, 423 F.Supp. 1064 (C.D.Cal., 1976); Report on Broadcast of Violent Indecent and Obscene Material, 51 F.C.C.2d 418 (1975); Network Programming Inquiry, 39 Fed.Reg. 26372 (1974). En Banc Programming Inquiry, 44 F.C.C. 2303 (1960). . 47 U.S.C. § 326 (1970). . See App. A at 10-12. . In addition, works of Auden, Becket, Lord Byron, Chaucer, Fielding, Greene, Hemingway, Joyce, Knowles, Lawrence, Orwell, Scott, Swift and the Nixon tapes, would not be allowed to air. . Pacifica Foundation, supra note 8. . Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). . See Filthy Words, The FCC, and the First Amendment: Regulating Broadcast Obscenity, 61 Va.L.Rev. 579 (1975). . Clarification of Section 76.256 of the Commission’s Rules and Regulations, 59 F.C.C.2d 984 (1976). . See Filthy Words, supra note 22, at 615. . Id. citing N. Johnson, How to Talk Back to Your Television Set, 20-21 (1967); N. Minnow, Equal Time, The Private Broadcaster and the Public Interest. . See Filthy Words, supra note 22, at 615. As a final word we take note of a news account which, under the headline “Swearing by British Rock Band Enrages Television Viewers”, reported the reaction of the British television audience to a broadcast containing filthy language. According to the report members of a rock band had used a string of obscenities on a London television program which had aired at 6:00 p. m. (The Washington Post, December 3, 1976, Style section, at 7, col. 2). Following the broadcast thousands of angry calls jammed the switchboard at Thames Television Studios and thousands of others were received by the London newspapers in protest of the broadcast. Thames Television broadcast an apology later the same evening and the host of the program planned to make a personal apology on the air the following evening. In this instance it seems rather clear that the London community was offended by what it had heard and that its reaction thereto stemmed any tide of filth that may have been headed its way.
BAZELON, Chief Judge, concurring: Although I agree with the result reached by Judge Tamm, I believe it is necessary to determine whether the Commission’s Order abridges the First Amendment. I will discuss why this issue must be reached and then explain why the Commission’s definition of “indecent” speech is unconstitutional. I. Judge Tamm concludes that the Commission’s definition of “indecent” must be invalidated because it authorizes censorship forbidden by 47 U.S.C. § 326. Section 326 provides that nothing in the Communications Act shall be understood as giving the Commission “power of censorship” or authority to “interfere with the right of free speech.” I agree with Judge Tamm that the Commission has censored. The Commission has banned the broadcast of certain words during all but the late night hours, and possibly during those times as well. The statute is thus facially violated, even though the ban is not absolute (as the Commission puts it, objectionable speech has merely been “channeled” into certain hours). By its terms, § 326 is not limited to rules that totally ban the broadcast of certain materials; it bans any Commission censorship. Indeed, channeling may have substantially the same effect as an absolute ban. Channeling material into a small enough time slot would prevent many stations from airing that material and would effectively make it unavailable to many potential listeners. However, determining that the Commission has violated the literal command of § 326 does not, as Judge Tamm assumes, end the matter. Although the language of § 326 is very broad, the scope of that section is apparently limited by 18 U.S.C. § 1464 and 47 U.S.C. § 503(b)(1). Section 1464 provides criminal punishments for “[wjhoever utters any obscene, indecent, or profane language by means of radio,” and § 503(b)(1) empowers the Commission to impose forfeitures on licensees who violated § 1464. In Illinois Citizens Committee for Broadcasting v. F.C.C., 169 U.S.App.D.C. 166, 515 F.2d 397 (1974), the petitioners claimed that an obscenity forfeiture assessed by the Commission under the latter provisions violated both the First Amendment and § 326. This court found that the Commission had properly found that the program was constitutionally unprotected obscenity under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). The forfeiture was upheld without comment on whether § 326 barred the Commission’s action. The clear implication is that § 326 does not provide greater protection of speech than the First Amendment, at least with respect to offensive speech. If the court had thought otherwise, it could not have upheld the forfeiture simply by finding that the speech in question was unprotected under the First Amendment. Thus, to determine whether the Commission may regulate speech within its definition of “indecent,” it is necessary to determine first whether such speech would be protected by the Constitution in other media; and if so, whether the unique character of broadcasting justifies the proposed expansion of government speech control. II. Several years ago, I felt compelled to write that “the FCC has demonstrated what one can most charitably describe as a total ignorance of the constitutional definition of obscenity.” Illinois Citizens Committee, supra, statement of Bazelon, Chief Judge, as to why he voted to grant rehearing en banc, 515 F.2d at 418. Unfortunately, this case would seem to confirm that view. The Commission’s definition of “indecent” speech that may be banned from the air-waves is massively overbroad under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, rehearing denied, 414 U.S. 881, 94 S.Ct. 26, 38 L.Ed.2d 128 (1973). Nor has the Commission demonstrated why offensive speech that otherwise would be protected may be regulated at all when broadcast over the airwaves — or, specifically why the additional restrictions imposed are tailored to serve the justifications relied on for regulation. Regulation of obscenity has produced “a variety of views among the members of the [Supreme] Court unmatched in any other course of constitutional adjudication.” Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704-05, 88 S.Ct. 1298, 1314, 20 L.Ed.2d 225 (1968) (Harlan, J., concurring and dissenting). In Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), a majority of the Court, although aware that “ideas having even the slightest redeeming social importance . . . have the full protection” of the First Amendment, concluded that there was a category of obscene speech that could be freely regulated because it lacked redeeming social importance. 354 U.S. at 484-85, 77 S.Ct. at 1309. After Roth, a majority of the Court retained the belief that obscene speech lies outside the First Amendment, the Court dividing over the difficult task of formulating a standard for distinguishing obscenity from that which is merely offensive. In the absence of a majority test, the Court initiated the practice, utilized thirty-one times, of summarily reversing convictions for the dissemination of materials that at least five Justices, applying their individual tests, found to be constitutionally protected. Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414,18 L.Ed.2d 515 (1967); Miller, 413 U.S. at 22, n. 3, 93 S.Ct. 2607. The Chief Justice believes this division of views “is not remarkable, for in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political or scientific expression.” Miller, 413 U.S. at 22-23, 93 S.Ct. at 2614. The Supreme Court’s most recent attempt to resolve this uncertainty came in Miller v. California, supra. Acutely aware of the dangers inhering in any suppression of expression, the Court stated that the realm of permissible regulation must be “carefully limited.” 413 U.S. at 23-24, 93 S.Ct. 2607. A jury may find a work obscene “under contemporary community standards” only if the work (1) when taken as a whole (2) appeals to the prurient interest, (3) portrays sexual conduct in a patently offensive way (4) and lacks serious literary, artistic, political or scientific value. 413 U.S. at 24, 93 S.Ct. 2607. The Court further held that obscenity could be regulated only under a specifically defined law, as written or authoritatively construed. The Court said it had limited obscenity regulation to materials that “depict or describe patently offensive, ‘hard core’ sexual conduct.” Id. at 27, 93 S.Ct. at 2616. See also, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1972). The Commission did not find that the Carlin monologue was obscene under Miller. Rather, it found that certain words repeated in the monologue were “indecent.” The Commission offered several justifications for “authoritatively construing” the statutory term “indecent,” one of which was a desire to reformulate its earlier construction of that term in light of Miller. Although the Commission alternatively argues that Miller is not the exclusive test for regulation of offensive language, see Section III infra, analysis of the Commission’s definition must begin with Miller. To begin with, Miller establishes when speech in other media may be regulated because it is offensive in a lewd or vulgar way, see note 22 infra. Furthermore, the Commission has in the past attempted to define indecency in terms of the Supreme Court’s standard for obscenity, 51 F.C.C.2d at 433, and has theorized that unregulated, indecent speech will cause social harm similar to that which is commonly associated with unregulated obscenity. Since the Supreme Court has held that the concerns underlying obscenity justify only limited regulation, regulation of indecency must be subject to similar restraints absent other, compelling justifications. Judge Leventhal’s dissent is based in part on his view that the Commission attempted “to define ‘indecent’ in terms of the same underlying considerations as those which prompted the Supreme Court in Miller.” (dissenting draft at 3). Although the motivations for regulating “indecent” and obscene speech do seem similar, the Commission’s definition of indecency is massively over-broad under Miller. In fact, the Commission’s definition disregards every Miller requirement but one. To begin with, the Commission does not test the “indecency” of speech under “local community standards,” but rather on the basis of what it terms “contemporary community standards for the broadcast medium.” 51 F.C.C.2d 433. The search for a national standard is understandable. Justice Brennan’s argument, rejected in Miller, that a national standard of obscenity is appropriate under a national constitution is telling. See Jacobellis v. Ohio, 378 U.S. 184, 193-95, 84 S.Ct. 1676, 12 L.Ed.2d 793. And Miller can be read as merely holding that application of local standards is constitutionally permissible rather than constitutionally required. 413 U.S. at 30-39, 93 S.Ct. 2607. Finally, it may be that only a national standard is administratively feasible for the Commission. When scrutinized closely, however, the Commission’s national standard appears chimerical. The Commission never solicited a jury verdict or expert testimony. Nor did it rely on polls or letters of complaint. The Commission simply recorded its conclusion that the words were indecent, thereby creating the suspicion that its national standard is in fact either the composite of the individual Commissioner’s standards or what they suppose are the national standards. The Commission’s definition of indecency also disregards or distorts each of the other Miller requirements. First, appeal to the prurient interest is not to be considered. Second, a work is not judged as a whole. Rather, a work is banned if it contains “obnoxious, gutter language” that could be used offensively to describe sexual or excretory activities or organs. 51 F.C.C.2d 433. Finally, a work containing indecent language cannot be broadcast even if the entire work has tremendous overriding literary, artistic, political or scientific value. Id The only Miller requirement observed by the Commission is that the banned language be patently offensive. But uprooting this element from the others distorts its meaning. Under the Commission’s definition, its Order could not itself be read over the airwaves even though it is not obscene under Miller. The Order has no appeal to the prurient interest and, as a whole, has serious value. Despite this, it would be banned because it contains words the Commission claims “debas[e] and brutaliz[e] human beings by reducing them to their mere bodily functions.” 51 F.C.C.2d at 433. The Commission’s definition of indecent speech that may be freely regulated thus goes well beyond Miller and is prima facie unconstitutional, notwithstanding the Commission’s attempts to minimize the significance of the Order. In addition to its point about channelling, see text and notes at notes 1-6 supra, and its claim that only a few words will be affected, the Commission disclaimed any intent “to stifle, robust, free debate.” 51 F.C.C.2d at 434. The implication is that only words and not ideas are being suppressed. However, the Supreme Court has rejected this very argument. “[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.” Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1970). Since words “are often chosen as much for their emotive as cognitive force,” id., a person’s choice of words is an important and protected element of the overall message sought to be communicated. The Commission euphemistically characterizes its definition of indecency as “variable obscenity,” citing Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195. Under variable obscenity, the state can regulate dissemination of material to children that is obscene as to them, though not obscene as to adults. Variable obscenity “simply adjusts the definition of obscenity ‘to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests .’ of such minors.” Ginsberg, 390 U.S. at 638, 88 S.Ct. at 1279, citations omitted. Even assuming that variable obscenity can be regulated under § 1464, the Commission’s definition of indecency is not a proper application of that concept. To illustrate, the Commission did not purport to find that the Carlin monologue, when taken as a whole, appeals to the prurient interests of minors or that it was without serious value to minors. And even if the Commission had properly found that the monologue came within this definition, that finding alone would not justify absolute or near absolute suppression; the material might not be obscene as to adults. Regulation of speech that is obscene as to children but that adults are constitutionally entitled to hear would present difficult problems of accommodation, problems that the Commission has not squarely faced because of its assumption that its broad regulation of indecent speech is constitutional. In sum, the tight limits on obscenity regulation carefully formulated by the Supreme Court in Miller have been thoroughly disregarded. The Commission’s definition can be affirmed only if, as it alternatively argues, there exists an additional category of offensive speech that is unprotected when broadcast. III. According to the Commission, certain qualities unique to the broadcast medium justify suppression of otherwise constitutionally protected speech. Conceptually, the Commission’s claim is that speech meeting its definition of “indecent” constitutes, when broadcast, an additional, previously unrecognized category of unprotected speech. No single Supreme Court decision directly forecloses this argument. However, considerable guidance is contained in the several opinions in which the court has considered conceptually similar justifications. All of the relevant case law directly opposes the action under review. A. Offensive speech may offend the privacy interests of unconsenting adults in their homes Two of the characteristics cited by the Commission are so closely intertwined that they should be considered together. The Commission fears that “unconsenting adults may tune in a station without any warning that offensive language is being or will be broadcast.” It then observes that radio receivers are typically found in the home, where privacy interests are especially high, citing Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). Since warnings can be aired prior to the broadcast of offensive material, the Commission evidently believes an adult listener should be able to indiscriminately scan the dial without chancing upon a program, even momentarily, he finds offensive. “The plain, if at times disquieting, truth is that in our pluralistic society, constantly proliferating new and ingenious forms of expression, ‘we are inescapably captive audiences for many purposes.’ ” Erznoznik v. City of Jacksonville, 422 U.S. 205-210, 95 S.Ct. 2268, 2273 (1974). Nevertheless, the Supreme Court has consistently held that the First Amendment generally prohibits government from “cleans[ing] public debate to the point where it is gramatically palatable to the most squeamish among us.” Cohen, 403 U.S. at 25, 91 S.Ct. at 1788. In Erznoznik, for example, the Court held that a city ordinance banning the showing of movies containing nudity on drive-in screens visible from the street could not be upheld in order to protect the sensibilities of involuntary passers-by. The Court said those who were offended could simply “avert their eyes.” 422 U.S. at 211, 212, 95 S.Ct. 2268. Similarly, in Cohen, supra n. 22, the Court held that offensive language could not be proscribed to protect the sensibilities of persons who might involuntarily be exposed to it: [T]he ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections. 403 U.S. at 23-34, 91 S.Ct. at 1786. In Cohen, as in Erznoznik, the Court held the invasion on the privacy of unwilling viewers was not “intolerable” because of their ability to avert their eyes. The Commission evidently believes that radio broadcast of offensive language constitutes an “intolerable invasion of substantial privacy interests.” Radio waves are, as the Commission suggests, “intrusive” in some sense. They are “in the air” whether we like it or not. But radio waves are not intrusive in the same sense as “raucous emissions of sound trucks blaring outside . residences,” which was cited as an example of an “intolerable invasion” in Cohen, 403 U.S. at 21, 91 S.Ct. at 1786. Unlike the sound truck whose noise cannot be eliminated from the home even if desired, radio makes no sound unless a person voluntarily purchases it, bring it home and then switches it “on.” Having done these things, having elected to receive public air waves, the scanner who stumbles onto an offensive program is in the same position as the unsuspecting passers-by in Cohen and Erznoznik; he can avert his attention by changing channels or turning off the set. There is language in Cohen, however, “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, e. g. Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970).” 403 U.S. at 21, 91 S.Ct. at 1786. Although relied on by the Commission, Rowan does not in fact justify its Order. As the enunciation of the relevant test, citation of Rowan, and discussion of examples in Cohen suggest, id. at 21-22, 91 S.Ct. 1780, the location of the unwilling listener is only one factor to be considered in determining whether speech is protected. Although a person can claim a greater privacy interest when at home, that interest is reduced when he “opens up his home” by turning on the radio. Indeed, when walking on the street one rarely receives prior warning of an offensive conversation. Furthermore, the Commission’s action is of an entirely different nature than that upheld in Rowan. There the Court upheld the constitutionality of a statute which enabled a person to require that a mailer remove his name from its mailing lists and stop all future mailings to the householder. Rowan enables a person who is offended by mail sent from a certáin source to avoid further offense from that source. This privacy interest is similar to that naturally enjoyed by the radio listener — the right not to listen to stations he finds offensive. The Rowan Court noted that similarity of these interests when it wrote that invalidating the statute, would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home. 397 U.S. at 737, 90 S.Ct. at 1490. More importantly, as the Rowan Court noted, by empowering the homeowner to determine what mail he will not receive, Congress avoided the Constitutional problems involved in “vesting the power to make any discretionary evaluation of the material in a governmental official.” Id. The Commission, by assuming this very power, has gone well beyond Rowan. B. Presence of Children in the Radio Audience The argument advanced most strenuously by the Commission is that the ban on “dirty words” is necessary to prevent “the exposure of children to language which most parents regard as inappropriate for them to hear.” 51 F.C.C.2d at 433. The Commission theorizes that regulation is necessary because parents will frequently be unable to shield their children from such programming. No one would dispute that there is a public interest in stations airing programming suitable for children or that government has greater power to regulate speech aimed at children than speech aimed at adults, Ginsberg v. New York, supra. However, it does not follow that the regulation under review is permissible. First of all, the Commission incorrectly assumes that material regulatable for children can be banned from broadcast. In Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957), the Court invalidated a state statute that absolutely banned the publication, sale or distribution of reading materials inappropriate for children. The Court said, The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those liberties of the individual . . that history has attested as the indispensable conditions for the maintenance and progress of a free society. 352 U.S. at 383-84, 77 S.Ct. at 526. The Commission’s Order has substantially the same effect. Adults with normal sleeping habits will be limited to programs “fit for children.” Should the Commission choose to regulate variable obscenity in the future, it must accommodate the right of government to regulate material that is obscene as to children with the rights of adults to hear speech protected as to them. If the Commission finds it impractical to accommodate these interests, any regulation must err on the side of under- rather than over-regulation. Any harm from under-regulation may be minimized by preprogram warnings and parental supervision. Any harm from over-regulation, on the other hand, is irremediable. In any event the Commission has not shown that the proposed regulation is permissible even with respect to children. Its position is based on several undocumented assumptions. The most basic assumption is that most parents consider any mention of dirty words to be unsuitable for their children. On top of this, the Commission assumes that parents frequently are unable to control their children’s listening habits. A critical additional assumption (which I find difficult to accept) is that parents are less able to control their children’s access to television and radio than to such media as books and newspapers. If this assumption is unfounded, then the major support for the Commission’s argument that radio-TV should be distinguished from other media for speech regulation purposes is groundless. Moreover, even if valid, those assumptions do not validate the Order since it rests on the premise that the Commission may censor material found by parents to be objectionable for their children. This unprecedented assumption “seems inherently boundless,” Cohen, 403 U.S. at 25, 91 S.Ct. 1780. Parents might also wish to shield their children from programs advancing controversial political or religious beliefs or programs discussing difficult contemporary problems such as abortion. If the Commission can act in loco parentis by banning dirty words because they are objectionable, then the same logic justifies a ban on these and other types of programs. Many parents believe — and perhaps rightly so — that children should not hear programs containing dirty words, and they may, of course, prevent their children from doing so. However, the Constitution limits the government’s power to select programming for children. Although government may adopt more stringent controls with respect to children than adults on the theory that children lack the full capacity for choice that is the presupposition of First Amendment guarantees, Ginsberg v. New York, supra, esp. (Stewart, J. concurring), 390 U.S. at 649-50, 88 S.Ct. at 1285, “[mjinors are entitled to a significant measure of First Amendment protection . and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.” Erznoznik, supra, 422 U.S. at 212, 95 S.Ct. at 2274. See also Tinker v. Des Moines School Disk, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). In fact, Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable. Erznoznik, 422 U.S. at 213-14, 95 S.Ct. at 2275. Thus the Order is clearly overbroad insofar as it is based on protection of children. As noted above, see text and note at note 19 supra, the Commission cannot plausibly claim that speech meeting its definition of “indecent” satisfies the constitutional test of obscenity, even as adjusted for children. In order to find that dirty words were obscene as to children, the Commission would at least have to find that their use, in context, appeals to youthful prurient interest. This has not been done and, frankly, I do not see how individual words could ever be found obscene, even as to children. Nor can this broad restriction be justified by any other governmental interest pertaining to minors. In fact, the Commission’s motivation in protecting children from dirty words is essentially that which Erznoznik forbids, namely a desire to shield children from what the legislature deems offensive. In reaching this conclusion, I am not championing the “cause” of indecent speech. The use of dirty words on the air, like the prevalence of violence, is a serious concern. Without a heightened sensitivity of the media, the pressure on First Amendment values will continue to grow. Violence in programming, however, may be more objectionable than the use of off-colored language; after all, children do not learn to kill each other with dirty words. Nevertheless, the Commission recently refused to ban violence on television, citing First Amendment concerns. Report on the Broadcast of Violent, Indecent, and Obscene Material, 51 F.C.C.2d 418, 420 (1975). C. Scarcity of Spectrum Space The final feature of broadcasting relied .on by the Commission is the natural scarcity of broadcast channels. This reliance is misplaced. The ban on censorship in 47 U.S.C. § 326 reflects a Congressional judgment that scarcity does not justify content regulation. Indeed, although scarcity has justified increasing the diversity of speakers and speech, it has never been held to justify censorship. The Commission relies on Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), where the Supreme Court upheld the constitutionality of the personal attack and political editorializing portions of the Commission’s fairness doctrine. There the Court balanced the interests of broadcasters in freedom from control against the public’s right to receive diverse viewpoints on matters of political importance. In this case, on the other hand, there is no divergence of First Amendment interests. The broadcasters’ interest in freedom from content regulation is not incompatible with each member of the broadcast audience’s interest in selecting his own programs and perhaps thereby attempting to influence the broadcaster’s offerings. In fact, the Red Lion Court anticipated this situation when it wrote: There is no question here of the Commission’s refusal to permit the broadcaster to carry a particular program or to punish his own views; ... of government censorship of a particular program contrary to § 326; or of the official government view dominating public broadcasting. Such questions would raise more serious First Amendment issues. 395 U.S. at 396, 89 S.Ct. at 1810. D. Miscellaneous Justifications The Commission also advances several subsidiary justifications for its action that are easily put aside. First, as Judge Tamm observes, the fear that filth will flood the airwaves without Commission regulation ignores economics. Popular tastes should be sufficient to ensure that the populace is not inundated with programming it finds objectionable. Nor can the Commission’s a