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Date: Tue, 10 Dec 1996 23:20:16 GMTServer: NCSA/1.4.2Content-type: text/htmlLast-modified: Fri, 12 Jul 1996 00:23:12 GMTContent-length: 38111<html><head> <title>The Leading Supreme Court Case</title></head><H2>Update for <em>ACLU v Reno</em> and other recent events</h2>In the rather long discussion that follows, I argue that the<em>Pacifica</em> case is the most closely applicable precedent on theissue of the constitutionality of the Decency Act. A panel of threeDistrict Court judges basically disagreed with this view anddistinguished <em>Pacifica</em>, in <!WA0><ahref=http://www.eff.org/Alerts/HTML/960612_aclu_v_reno_decision.html><em>ACLUv Reno</em></a>. The primary ground for holding the Actunconstitutional derived from the nature of the Internet as awidespread, distributed medium for communication. The panel did notbelieve the "indecency" term was necessarily unconstitutionally vague oroverbroad. I've written a perhaps rather slanted <!WA1><ahref=http://www.cs.washington.edu/homes/eric/Update.html>summary</a> of the decision.<H2>Indecent Speech is Any Nonconforming Speech</h2>The <!WA2><a href=http://www.cs.washington.edu/homes/eric/CDA96_act.html> Communications Decency Act of 1996</a>(the "Decency Act") forbids not merely on-line obscenity but any speech that is<em>"indecent"</em>. The Supreme Court has held that the standard for"indecent" speech -- defined using the same language as in the 1996Act -- is any "nonconformance with accepted standards of morality."<cite>FCC v. Pacifica Foundation</cite>, 438 US 726, 740(1978).Merely by making any such nonconforming speech available on-line, on aWeb page that might be read by a person under eighteen, you would nowbe committing a <!WA3><a href=http://www.cs.washington.edu/homes/eric/18USC3559.html>felony </a> under Federal law. <p> People I have spoken to generally expect that the strict legal effectof the Decency Act is basically benign. They base that belief (orhope) on two premises: either that the Decency Act is aimed at hard-core obscenity, or that the First Amendment will protect them.<p><strong>Both of these hopes are simply wrong on the law. TheSupreme Court has already decided against you.</strong><p>The landmark case is <cite>FCC v. Pacifica Foundation</cite>, 438 U.S.726 (1978). In that case, the Court upheld the FCC's finding that aradio station was subject to sanctions for broadcasting the famousGeorge Carlin monologue (see below). The FCC characterized themonologue in its findings:<pre> [T]he Commission concluded that certain words depicted sexual andexcretory activities in a patently offensive manner..." 438 U.S. at 732.</pre>Guess what? The Decency Act forbids any<pre>"comment ... or other communication that, in context, ...describes, in terms patently offensive as measured by contemporarycommunity standards, sexual or excretory activities or organs..." 47U.S.C. section 223(d)(1)(B).</pre>In <cite>Pacifica</cite>, the Court specifically ruled that the First Amendmentdid not prevent government regulation of that broadcast based on itscontent, even though --<ul><li> the monologue constituted "speech" within the meaning of theFirst Amendment, 438 U.S. at 744;<li> the radio station had warned listeners immediately before thebroadcast, 438 U.S. at 730;<li> the material did not have "prurient appeal", and was not "obscene, ..., indecent, filthy or vile" within the meaning ofthe federal statutes pertaining to obscene mail, 438 U.S. at 740;<li> the monologue was not "obscene in the constitutional sense",438 U.S. at 756 (Powell, J., concurring);<li> the Commission's objections were based in part on the content ofthe broadcast, 438 U.S. at 744;<li> a radio broadcast, "unlike other intrusive methods ofcommunication, '... can be turned off,' 438 U.S. at 765 (Brennan, J.,dissenting) (citing Lehman v. Shaker Heights, 418 U.S. 298, 302(1974));<li> the decision "has the ... effect of making completely unavailableto adults material which may not constitutionally be kept even fromchildren," 438 U.S. at 769 (Brennan, J., dissenting);<li> the Court's "rationales could justify the banning from radio of amyriad of literary works, novels, poems, and plays by the likes ofShakespeare, Joyce, Hemingway, Ben Jonson, Henry Fielding, RobertBurns, and Chaucer;", 438 U.S. at 771 (Brennan, J., dissenting)</ul><hr> The remainder of this page excerpts (in direct quote) from thislandmark opinion. As you read these opinions (majority, concurring,and dissenting), remember that although you may or may not agree withthe reasoning, <strong>the Court squarely held that the monologue inquestion was not "speech" protected by the First Amendment</strong>.That is, the radio station <em>lost the case</em>. (If you like, youcan skip straight to the <!WA4><a href=#ending>ending.</a>) <hr><h4> Majority opinion</h4><hr>Mr. Justice <strong>Stevens </strong> delivered the opinion of theCourt (Parts I, II, III, and IV-C) and an opinion in which the<strong>Chief Justice</strong>[Mr. Justice Burger] and Mr. Justice<strong>Rehnquist</strong> joined (Parts IV-A and IV-B).<p>This case requires that we decide whether the Federal CommunicationsCommission has any power to regulate a radio broadcast that isindecent but not obscene.<p>A satiric humorist named George Carlin recorded a 12-minute monologueentitled "Filthy Words" before a live audience in a Californiatheater. He began by referring to his thoughts about "the words youcouldn't say on the public, ah, airwaves, um, the ones you definitelywouldn't say, ever." He proceeded to list those words and repeat themover and over again in a variety of colloquialisms. The transcript ofthis recording, which is appended to this opinion, indicates frequentlaughter from the audience.<p>At about 2 o'clock in the afternoon on Tuesday, October 30, 1973, aNew York radio station, owned by respondent Pacifica Foundation,broadcast the "Filthy Words" monologue. A few weeks later a man, whostated that he had heard the broadcast while driving with his youngson, wrote a letter complaining to the Commission. He stated that,although he could perhaps understand the "record's being sold forprivate use, I certainly cannot understand the broadcast of same overthe air that, supposedly, you control."<p>The complaint was forwarded to the station for comment. In itsresponse, Pacifica explained that the monologue had been played duringa program about contemporary society's attitude toward language andthat, immeidately before its broadcast, listeners had been advisedthat it included "sensitive language which might be regarded asoffensive to some."... Pacifica stated that it was not aware of anyother complaints about the broadcast.<p>...The Commission ... expressed the opinion that it should beregulated... "[T]he concept of 'indecent' is intimately connectedwith he exposure of children to language that describes, in termspatently offensive as measured by contemporary standards for thebroadcast medium, sexual or excretory activities and organs, at timesof the day when there is a reasonable risk that children may be in theaudience." ...<p>The Commission identified several words that referred to excretory orsexual activities or organs, stated that the repetitive, deliberateuse of those words in an afternoon broadcast when children are in theaudience was patently offensive, and held that the broadcast wasindecent. Pacifica takes issue with the Commission's definition ofindecency, but does not dispute the Commission's preliminarydetermination that each of the components of its definition waspresent. Specifically, Pacifica does not quarrel with the conclusionthat this afternoon broadcast was patently offensive. Pacifica'sclaim that the broadcast was not indecent within the meaning of thestatute rests entirely on the absence of prurient appeal. <p>...Prurient appeal is an element of the obscene, but the normaldefinition of "indecent" merely refers to nonconformance with acceptedstandards of morality. <p>Pacifica argues, however, that this Court has construed the term"indecent" in related statutes to mean "obscene", as that term wasdefined in Miller v. California, 413 U.S. 15.... [I]n Hamlingv. United States, 418 U.S 87,... [i]n holding that the statute'scoverage is limited to obscenity, the Court followed the lead ofMr. Justice Harlan in Manual Enterprises, Inc., v. Day, 370U.S. 478... [H]e thought that the phrase "obscene, lewd, lascivious,indecent, filthy or vile," taken as a whole, was clearly limited tothe obscene, a reading well grounded in prior judicial constructions:"[T]he statute since its inception has always been taken as aimed atobnoxiously debasing portrayals of sex." Id., at 483. In Hamlingthe Court agreed with Mr. Justice Harlan that section 1461 was meantonly to regulate obscenity in the mails; by reading into it thelimits set by Miller v. California, supra, the Court adopted aconstruction which assured the statute's constitutionality. <p>The reasons supporting Hamling's construction of section 1461 do notapply to section 1464.... <p>...Pacifica argues that inasmuch as the recording is not obscene, theConstitution forbids any abridgment of the right to broadcast it onthe radio. <p>When the issue is narrowed to the facts of this case, the question iswhether the First Amendment denies government any power to restrictthe public broadcast of indecent language in any circumstances. Forif the government has any such power, this was an appropriate occasionfor its exercise. <p>The words of the Carlin monologue are unquestionably "speech" withinthe meaning of the First Amendment. It is equally clear that theCommission's objections to the broadcast were based in part on itscontent. The order must therefore fall if, as Pacifica argues, theFirst Amendment prohibits all governmental regulation that depends onthe content of speech. Our past cases demonstrate, however, that nosuch absolute rule is mandated by the Constitution. <p>...The question in this case is whether a broadcast of patently offensivewords dealing wtih sex and excretion may be regulated because of itscontent. Obscene materials have been denied the protection of theFirst Amendment because their content is so offensive to contemporarymoral standards. Roth v. United States, 354 U.S. 476. But the factthat society may find speech offensive is not a sufficient reason forsuppressing it. Indeed, if it is the speaker's opinion that givesoffense, that consequence is a reason for according it constitutionalprotection. For it is a central tenet of the First Amendment that thegovernment must remain neutral in the marketplace of ideas. If therewere any reason to believe that the Commission's characterization ofthe Carlin monologue as offensive could be traced to its politicalcontent -- or even to the fact that it satirized contemporaryattitudes about four-letter words -- First Amendment protection mightbe required. But that is simply not the case. These words offend forthe same reasons that obscenity offends....<p>We have long recognized that each medium of expression presentsspecial First Amendment problems.... The reasons for thesedistinctions are complex, but two have relevance to the present case.First, the broadcast media have established a uniquely pervasivepresence in the lives of all Americans. Patently offensive, indecentmaterial presented over the airwaves confronts the citizen, not onlyin public, but also in the privacy of the home, where the individual'sright to be left alone plainly outweighs the First Amendment rights ofan intruder. Rowan v. Post Office Dept., 397 U.S. 728. Because thebroadcast audience is constantly tuning in and out, prior warningscannot completely protect the listener or viewer from unexpectedprogram content. To say that one may avoid further offense by turningoff the radio when he hears indecent language is like saying that theremedy for an assault is to run away after the first blow. One mayhang up on an indecent phone call, but that option does not give thecaller a constitutional immunity or avoid a harm that has already⌨️ 快捷键说明
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