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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 (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.  
<p>
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
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.  
<p>
...
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 themerit of the message and words.  Cf. [Young
v. American Mini Theatres, Inc., 427 U.S. 50], at 77-79 (Powell, J.,
concurring).   These are the grounds upon which I join the judgment of
the Court as to Part IV.

<hr>
<h4>Brennan, J., dissenting.</h4>
<hr>
 Mr. Justice <strong>Brennan</strong>, with whom Mr. Justice
<strong>Marshall</strong> joins, dissenting.
<p>
I agree with Mr. Justice Stewart that, under Hamling v. United States,
418 U.S. 87 (1974) [other citations omitted], the word "indecent" in
18 USC section 1464 must be construed to prohibit only obscene speech.
I would, therefore, normally refrain from expressing my views on any
constitutional issues implicated in this case.  However, I find the
Court's misapplication of fundamental First Amendment principles so
patent, and its attempt to impose <em>its</em> notions of propriety on
the whole of the American people so misguided, that I am unable to
remain silent.
<p>
... Yet, despite the Court's refusal to create a sliding scale of
First Amendment protection calibrated to this Court's perception of
the worth of a communiation['s content, and despite our unanimous
agreement that the Carlin monologue is protected speech, a majority of
the Court nevertheless finds that, on the facts of this case, the FCC
is not constitutionally barred from imposing sanctions on Pacifica
for its airing of the Carlin monologue.  This majority apparently
believes that the FCC's disapproval of Pacifica's afternoon broadcast
of Carlin's "Dirty Words" recording is a permissible time, place, and
manner regulation.  Kovacs v. Cooper, 336 U.S. 77 (1949).  Both the
opinion of my Brother Stevens and the opinion of my Brother Powell
rely principally on two factors in reaching this conclusion:  (1) the
capacity of a radio broadcast to intrude into the unwilling listener's
home, and (2) the presence of children in the listening audience.
Dispassionate analysis, removed from individual notions as to what is
proper and what is not, starkly reveals that these justifications,
whether individually or together, simply do not support even the
professedly moderate degree of governmental homogenization of radio
communications -- if, indeed, such homogenization can ever be moderate
given the pre-eminent status of the right of free speech in our
constitutional scheme -- that the Court today permits. 
<p>
[To be continued.]
<hr>
<h4>Stewart, J., dissenting. </h4>
<hr>
[Statutory interpretation of "indecent", citing Hamling.]
<hr>
<a name="ending">
<hr>
<h4><a name="ending">My take on it all</a></h4>
<hr>

It's impossible to read the transcript of the Carlin monologue without
laughing.  (Try it.)  I remember his voice delivering this monologue.
The transcript misses his sense of timing, but it's still very
effective.  Far from being the "verbal shock treatment" the Court
complains about, it's a
straightforward, intensely political commentary by a talented
observer.  So it's terrifying, to me, that the Court seems to equate
the Carlin piece with, well, <em>Beavis</em>.  Meaning either that the
Court can't tell the difference, or (more honestly) it doesn't care
about the content, disapproves on principle, and is willing to leave
regulation up to the bureaucrats.  And we know <em>they</em> can't
tell the difference.

<p>
To me, the most frightening part of the discussion is the Court's
repeated willingness to do anything in the name of the children who
might be listening.  They might be browsing this Web page too, or
reading books in a library, or watching cable TV, or attending the
Million Man March, or doing any of a thousand other disturbing things.
Yes, their parents (and some of my best friends are parents) are
entitled to protect them from my evil pernicious influence.  All they
have to do is <em>not read my Web page</em>.  Is that so much to ask?
<p>
That's how we got into this Decency Act stuff, after all, worrying
about all those kids browsing all those dirty Web pages.  Like this
one.  Highly illegal.  Throw the guy in jail.
<p>
And if radio can constitutionally be regulated on this basis, <strong>why not the
Internet?</strong> (Re-read the excerpts, and substitute "Internet" for
"radio".  Scary, huh?) 
<p>
I don't
particularly care for swearing;  I'll even admit that 
typing portions of the above transcript made me mildly uncomfortable.
Still, the Government has no damn business telling me I can't offend anyone.
It's not my speech I'm really worried about, though.  The Internet is a
precious, roiling, confusing, complex place.  
The Government has <strong> no
damn business</cite> telling you you can't offend anyone, or
telling me I'm 
not allowed to read what you've written, whatever it is.

<hr>
<h4>The hope for the future</a></h4>
<hr>
As I see it, there are only two grounds for distinguishing <cite>
Pacifica</cite>.  

<p> One can argue that the Internet is less obtrusive than radio, and
less plausibly susceptible to a "family hour" doctrine of appropriate
time and place for G-rated speech.  Unfortunately, the intrusiveness
rationale, while clearly important to the Court's frame of mind, does
not distinguish between family hour and other radio programming.  If
the Court had held that radio broadcasts, like sound trucks, were
sufficiently intrusive to be regulated, and had banned Carlin's
monologue entirely for that reason, the Internet would be safer.
Instead, it was the <em>potential access for children</em> that formed
the primary basis for the holding in <cite>Pacifica</cite>, a factor
that is also present here and central to the statute's express purpose.  

<p> Alternatively, one could hope to distinguish <cite>Pacifica</cite>
as dealing with civil sanctions rather than criminal penalties.  A
statute providing criminal penalties, such as the Decency Act, must
generally meet a high standard of accuracy in its definition, or be
upset under the "void for vagueness" doctrine.  However, vagueness is
not a First Amendment issue.  For example, an accurate drafting of the
law can overcome "vagueness".  And in my case, the language transcribed
above has already been squarely held by the Supreme Court to meet the
law's existing definition, so it would be hard for me to argue vagueness.

<p> The temporary restraining order granted in <!WA5><a
href="http://www.eff.org/pub/Alerts/buckwalter_cda_021596.decision">
<cite>ACLU v. Reno</cite></a> acknowledges that the plaintiffs have a
plausible case, and <em>if they eventually win</em> would in the
meantime suffer a loss of First
Amendment rights.  The Justice Department's 
<!WA6><a href="http://www.eff.org/pub/Alerts/eff-aclu_cda_lawsuit_022396.update">
announcement </a> that it will 
not institute prosecutions for violations of the Decency Act until
this litigation runs its course only postpones the reckoning.  In
particular, according to that announcement, 
<p>
<tt>If the law is upheld, the
government has reserved the right to prosecute later for such speech dating
from the passage of the law. </tt>
<p>
If the above discussion is correct, there is a significant chance that
the law will be upheld, and that the Justice Department will institute
prosecutions for language like mine.
<hr>

I hope I have convinced you that, by reproducing excerpts from this
opinion on a Web page accessible by children, I am committing a <!WA7><a
href=http://www.cs.washington.edu/homes/eric/18USC3559.html> felony </a> under Federal law.  
<p>

(The ACLU has a <!WA8><a
href=http://www.aclu.org/action/dirty.html>page</a> quite
similar to this one.  There are no new ideas.)

<hr> If you would
like to commit a felony too, add the following language to your Web
page: <p> <tt> I'm committing a &lt;a
href="http://www.cs.washington.edu/homes/eric/Pacifica.html"&gt;felony
&lt;/a&gt;; why don't you?  </tt>

<hr>
If you would like to turn your Web page black, add the following:<br>
<tt>&lt;Body BGcolor="#000000" text="#ffffff" vlink="#ff99ff"
link="#ff99ff"&gt;</tt>

<hr>
Other sites that I have found of interest on this issue (both pro and con):
<ul>
<li> Another <!WA9><a href="http://www.eff.org/pub/Alerts/russell_0296_indecent.article">
felony </a> (and much more entertaining than mine)
<li> An ACLU <!WA10><a href="http://www.aclu.org/action/dirty.html">page</a> nearly
identical to this one (sigh)
<li> 
A more thorough 
<!WA11><a href="http://www.eff.org/pub/Censorship/Exon_bill/cdt_pfaw_cda.analysis"
> legal analysis</a> of an earlier version of the Decency Act
<li> The <!WA12><a
href="http://www.eff.org/pub/Censorship/Exon_bill/fundamentalists_cda_congress_101695.letter">
opposing view</a>, urging greater limitations 
<li> A succinct, articulate and forceful <!WA13><a
href="http://www2.cybernex.net/~jen/webpages/bullets/protest.html">
protest page</a>
<li>
 <!WA14><a href="http://www.cs.washington.edu/homes/eric/exon.txt">Exonerate</a> yourself with this vocabulary approach
</ul>
and of course
<ul>
 <!WA15><A HREF="http://www.eff.org/blueribbon.html">
 <!WA16><IMG BORDER=0 SRC="http://www.cs.washington.edu/homes/eric/blueribbon.gif"
 ALT=""><BR>
 Join the Blue Ribbon Anti-Censorship Campaign!</A> 

</ul>
<hr>
<h5>
The assistance of the Legal
Information Institute's <!WA17><a href="http://www.law.cornell.edu/uscode"> United
States Code </a> database is gratefully acknowledged.  They are in no
respect responsible for the content of this document, however.
</h5>
<hr>

</body>
<address>
[e-mail] 
<DD> 29 Feb 1996
</address>
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