Pervasive Problem

The 1978 Supreme Court decision allowing censorship of dirty words on radio threatens free speech in cyberspace.

On a Tuesday afternoon in October 1973, a motorist in the New York area tuned his radio to WBAI-FM and heard a 12-minute monologue by comedian George Carlin entitled "Filthy Words." The routine, included on Carlin's record Occupation: Foole, had been taped during a live performance in California. The topic was the "words you couldn't say on the public airwaves, the ones you definitely wouldn't say, ever." Carlin began by listing the seven words designated by the FCC as unacceptable for broadcast media: "shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. These are the ones that will curve your spine, grow hair on your hands, and maybe even bring us, God help us, peace without honor, and a bourbon." The driver who happened upon Carlin's monologue, later described in court records as accompanied by his "young son," wrote a letter of complaint to the Federal Communications Commission. His was the only complaint received about the Carlin broadcast. Although the court records did not say so, the driver was a board member of Morality in Media who was visiting the New York area from his home in Florida, and his "young son" was 15 years old.

The FCC responded by placing a letter of sanction in its file for the Pacifica Foundation, which operated WBAI. Pacifica challenged the action on First Amendment grounds, and the case wended its way up to the Supreme Court, which issued a fragmentary and confusing decision in July 1978. Supporting the FCC's authority to regulate "indecent" speech on the airwaves, the Court emphasized that radio broadcasts "pervade" people's homes and may be heard by unattended children. It thereby introduced a new and controversial doctrine into American constitutional law: Government may regulate a communications medium because of its "pervasiveness."

Most commentators originally thought Pacifica Foundation v. FCC, destined to be known as "the seven dirty words case," applied only to broadcast media. But in his 1983 book Technologies of Freedom, communications scholar Ithiel de Sola Pool argued that the pervasiveness doctrine could be used to justify "quite radical censorship." He was right. In recent years, Pacifica has been cited by the Supreme Court in a case upholding restrictions on cable TV, and it was the foundation for the Communications Decency Act, which attempted to regulate speech on the Internet.

When the Supreme Court overturned the CDA in the 1997 case ACLU v. Reno, it did not reject the pervasiveness doctrine. Instead, it held that the Internet is not pervasive. But this finding was based on such narrow grounds that it is bound to be undermined by technological developments. Furthermore, if the logic of the pervasiveness doctrine were applied consistently, even the print media would not be safe from censorship. As long as Pacifica remains the law, defenders of free speech, online or off, cannot rest easy.

To understand what happens when the government tries to protect us against "indecency" in "pervasive" media, it is important to recognize how broad that category of speech is. Although many people use the words pornography, obscenity, and indecency interchangeably, the law understands them very differently. Pornography is a popular term with no legal meaning. Obscenity, as defined by the Supreme Court in the 1973 case Miller v. California, is patently offensive, prurient material, lacking significant scientific, literary, artistic, or political ("SLAP") value. The Miller standard has been used almost exclusively against distributors of hardcore visual material–pictorial magazines and videos–that lack perceived SLAP value. Indecency, by contrast, is "patently offensive" material that may have significant SLAP value, and it need not include pictures. Historically, indecency laws in the United States were used to prosecute writers and publishers of controversial novels (including the works of Balzac, Tolstoy, Zola, and Joyce), along with early crusaders for women's sexual independence, abortion rights, and birth control.

The main justification for indecency laws has always been protecting children. The Supreme Court has repeatedly held that unlike obscenity, which is considered outside the scope of First Amendment protection, indecent material cannot be banned. It can only be "channeled"–regulated so that it is kept away from children. In Butler v. Michigan, a 1957 decision overturning a state ban on indecent literature, the Court said adults cannot be reduced to reading "only what is fit for children." Writing for the majority, Justice Felix Frankfurter said to ban indecency for the sake of children is "to burn the house to roast the pig."

The question in Pacifica was whether the restrictions on broadcast indecency, like the ban at issue in Butler, impermissibly infringed on the freedom of adults. The Supreme Court was reassured by the fact that the FCC's regulations, unlike the Michigan law, did not carry criminal sanctions. The consequence of Pacifica's infraction was not a prison term or even a fine–just a letter of reprimand (which could, in theory, affect the FCC's willingness to renew the station's license). The Court's concerns were also allayed by the narrowness of the FCC's "seven dirty words" rule. The majority argued that speakers could always find another vocabulary to express the same ideas.

The broadcast industry took this statement as an invitation. The 1980s and '90s saw the proliferation of "shock jocks": loud, crude (and highly popular) radio hosts–typified by Howard Stern–who frequently found ways to talk about sex without using the seven dirty words. In response, the FCC broadened its definition of indecency to include suggestive language that didn't use any of the original seven dirty words. Beginning in 1986, indecency was defined as "patently offensive" language describing sexual or excretory acts or organs. In 1988 Congress tried to ban broadcast indecency entirely, but the Supreme Court, consistent with its ruling in Butler, said that approach went too far. Instead, the FCC continued to "channel" broadcast indecency by restricting it to the late evening and early morning (10 p.m. to 6 a.m.), when children were less likely to be listening or watching.

With the broader definition of indecency in place, listener complaints investigated by the FCC increasingly dealt with sexual insinuations. Infinity Broadcasting, the syndicator backing Howard Stern, was fined millions of dollars for some of his excesses, including a show featuring a man who played the piano with his penis (on the radio, remember) and Stern's comment that "the closest I ever came to making love to a black woman was masturbating to a picture of Aunt Jemima."

But speech need not be frivolous to be considered indecent. Flipping channels as a teenager, I came across a PBS documentary about breast cancer that ended with a brief sequence of a woman examining her breast. Nothing in the FCC's indecency regulations excludes the possibility that a television station could be sanctioned, or have its license renewal application denied, for broadcasting such a documentary. Broadcasters have to rely on the good sense and forbearance of FCC bureaucrats to protect socially valuable speech.

That is bound to have a chilling effect on programming, because broadcasters have to anticipate what the FCC will consider indecent, and even material with a serious point can run afoul of the rules. In 1989, for example, the FCC fined a Miami radio station for playing the Uncle Bonsai song "Penis Envy," a satire of macho attitudes. It has also found excerpts from the critically acclaimed play Jerker, in which two gay men discuss their sexual fantasies over the telephone, to be indecent. Social conservatives have even suggested FCC action against TV news coverage showing Madonna's "Justify My Love" video and sexually explicit photographs by Robert Mapplethorpe–both of which were aired precisely because they had been subjects of controversy.

Even the old definition of indecency went beyond gratuitous profanity. Carlin, after all, was making a political statement by mocking the very system of regulation that made it illegal to air his monologue. Justice William Brennan dissented from the Pacifica decision because its rationale "could justify the banning from radio of a myriad of literary works, novels, poems and plays by the likes of Shakespeare, Joyce, Hemingway." He noted that Pacifica would allow the suppression of political speech "such as the Nixon tapes" and could even result in sanctions for broadcasting portions of the Bible. In particular, he cited I Samuel 25:22, where King David threatens Nabal, a wealthy man who has treated his messengers rudely: "So and more also do God unto the enemies of David, if I leave of all that pertain to him by the morning light any that pisseth against the wall."

If the concept of indecency is disturbingly elastic, so is the idea of pervasiveness. The puzzling thing about the Supreme Court's invention of the pervasiveness doctrine in Pacifica is that it was not necessary to resolve the case. For half a century, the government's power to regulate broadcasting had been based on the idea of "spectrum scarcity": Since there are a limited number of frequencies available for broadcasting on "the public airwaves," the government must decide who gets to use them, and it may attach conditions to that privilege. Critics of this doctrine have long argued that it does not justify a lower level of First Amendment protection for broadcasting, since all media, including books and newspapers, use scarce resources. Yet the Court has repeatedly relied on the spectrum scarcity argument, and it could have done so again in Pacifica.

Instead, the Court declared that "the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder." For nearly two decades, no one really knew what to make of the pervasiveness doctrine. Was "pervasiveness" a feature only of a "scarce" medium, such as radio or television? Or could other media, such as cable TV and online services, be regulated as pervasive?

Two centuries of case law had finally established that any idea may be explored in print, no matter what language is used. Under those precedents, no law could ban the use of the seven dirty words in this article or in any publication, scholarly or frivolous. It might seem to be a matter of common sense that every medium would be granted the same protection. Why should technical distinctions be the basis for different treatment under the First Amendment? What would be the rationale, say, for regulating printed books more strictly than books on parchment or papyrus?

As it happens, the Catholic Church and the governments of many European countries were terrified by the introduction of the printing press. In France during the 1530s, King François I banned printed books and ordered the burning of printers, along with the works they had published. In 1559 Pope Paul IV established the Index of Prohibited Books. The grave danger presented to established authority by the printing press was that controversial speech could be disseminated more rapidly to a wider audience. In other words, print made such speech pervasive.

In the United States, courts and legislators have willfully failed to see the analogy between each new communications medium and print, the ancestor of them all. Sometimes discriminatory treatment of a new medium was based on a tautology, a finding that "it is different, therefore it is different." For more than 30 years, movies were denied First Amendment protection because the Supreme Court, in a 1915 case, refused to see any similarity between cinema and "the press." First radio, then television was held to be subject to a higher degree of censorship than books and periodicals because of "spectrum scarcity."

That argument does not apply to cable television: There is no firm upper limit on the number of channels that can be delivered to your house, as long as the company lays a powerful enough cable. But is cable TV, available in more than 60 percent of American homes, nonetheless "pervasive"? In the 1994 case Turner Broadcasting v. FCC, which dealt with the issue of whether cable companies could be required to carry broadcast stations, the Supreme Court said cable is not like broadcasting because it "does not suffer from the inherent limitation that characterizes the broadcast medium." This comment appeared to be a sign that the Court intended to keep cable free from the oppressive regulatory scheme applied to broadcast television.

But that did not happen. In the 1996 case Denver Area Telecommunications Consortium v. FCC, the Court ruled that cable television, though not "scarce," is "pervasive." The case involved a federal law requiring cable providers either to ban indecent programming or to block it, delivering it only to viewers who request it. Justice Stephen Breyer, writing for the plurality, approvingly summarized Pacifica's finding that "the broadcast media have established a uniquely pervasive presence in the lives of all Americans" and that "patently offensive, indecent material…confronts the citizen, not only in public, but also in the privacy of the home." Such exposure, he said, was "generally without sufficient prior warning to allow the recipient to avert his or her eyes or ears." Several other justices relied on Pacificain their concurring opinions. Only Justice Clarence Thomas took a clear stand against differentiating cable from print media. "The text of the First Amendment," he noted, "makes no distinction between print, broadcast, and cable media."

Commentators had long wondered why cable TV should be treated differently than broadcast TV, when the experience of watching them is essentially the same. Why should it matter, for First Amendment purposes, if the image is delivered to the house via the airwaves or over a cable? Denver seemed to give the Court's answer: It doesn't.

But this meant we were now facing the possibility of the "quite radical censorship" de Sola Pool had predicted. The next logical question was why it should matter if the same images or words are delivered to the house via the Internet. Congress did not think it should. With the Communications Decency Act of 1996, it applied the FCC's indecency standard to the Internet, establishing a penalty of up to two years in prison and a $100,000 fine for each violation. The law's proponents relied heavily on Pacifica and the pervasiveness argument to justify the legislation. Sen. Dan Coats (R-Ind.), one of the CDA's main sponsors, said during congressional debate in June 1995, "The Internet is like taking a porn shop and putting it in the bedroom of your children and then saying, `Do not look.'"

But pornography was not the only kind of speech that could be covered by the law's broad definition of indecency: "patently offensive" language describing sexual or excretory acts or organs. Consider a passage from Robert Jay Lifton's book The Nazi Doctors, a history of human medical experimentation in Auschwitz: "Experimental subjects–relatively healthy young men and women in their late teens or early twenties, who had been obtained by a previous day's order from the camps–were lined up in a waiting room…. Women were put between plates that pressed against abdomen and back; men placed penis and scrotum on a special plate….Not long after the x rays, the women's ovaries were removed surgically, often in two separate operations."

In June 1995, I placed this excerpt on the Internet as part of a compilation called An Auschwitz Alphabet (www.spectacle.org/695/ausch.html). In the three years since, I have received hundreds of e-mail messages from strangers around the world, including many teachers and schoolchildren, thanking me and describing their own responses to the Alphabet. The same year I published the Alphabet, Congress passed the CDA, which arguably made the Lifton passage illegal on the Internet. Because of my work on An Auschwitz Alphabet, I became one of 20 plaintiffs represented by the ACLU in ACLU v. Reno, the case that tested the CDA. Other plaintiffs included Critical Path AIDS Project (www.critpath.org), which provides information about safer sex, and Biblio Bytes (www.bb.com), which sells electronic books, including romance, erotica, and horror, over the Web.

A special three-judge federal panel in Philadelphia conducted a trial on the law's constitutionality in the winter and spring of 1996. One of the plaintiffs' witnesses was Scott Bradner, a senior technical consultant at Harvard University and a member of the Internet Engineering Task Force, who educated the judges about the nature and architecture of the Internet. During cross-examination on the first day of the trial, Justice Department attorney Jason Baron noted that Bradner had said in a deposition that the Internet was "becoming pervasive." Bradner explained that "by `pervasive' I mean omnipresent. It is available anyplace."

Throughout the trial, the Justice Department sought to prove that children could unwittingly stumble on indecent Internet content. Baron read an excerpt from a deposition by Donna Hoffman of Vanderbilt University, the leading expert on commercial use of the Internet: "Individuals must seek out the information they wish. Information doesn't suddenly appear, surprising them." Baron then described a hypothetical situation: Your child has been assigned to write a report on the book Little Women and wants to surf the Web for information. Refusing to take the bait, Hoffman said that a child who was competent in using the Web would use "Alcott" and "Little Women" as keywords for the search, rather than the book title alone. Baron handed her a government exhibit–the results of an Infoseek search on "Little Women"–and asked her to read the fifth item: "See hot pictures of naked women."

I later e-mailed Hoffman and asked her to comment on Pacifica's applicability to the Internet. She responded, "In contrast [to broadcast media], users of the Internet are active participants in the media consumption process. It would be extremely unlikely for a child–or any user not paying attention–to `stumble' upon indecent speech simply by clicking the mouse. Users must read streams of content and make informed choices about the links they want to follow. I am aware of no `trick' links on the Internet–that is, links that [claim] to offer one type of content but in fact deliver quite another, indecent type."

The three Philadelphia judges were unanimous in deciding that the CDA was unconstitutional and that the Internet was entitled to extensive First Amendment protection. Each wrote a separate concurring opinion. In his, Judge Stewart Dalzell addressed the question of whether Pacifica applied to the Internet. The Supreme Court had not issued its Denver decision labeling cable TV "pervasive," which came only days later. Dalzell read the ambiguous pro-cable language in Turnerto mean that the Court, in the absence of "scarcity," would not find a medium to be pervasive. He concluded that "time has not been kind to the Pacifica decision. Later cases have eroded its reach, and the Supreme Court has repeatedly instructed against overreading the rationale of its holding."

But in a footnote, Dalzell wisely offered a second, independent argument against applying Pacifica to the Internet: "Operation of a computer is not as simple as turning on a television, and the…assaultive nature of television…is quite absent in Internet use….The Government may well be right that sexually explicit content is just a few clicks of a mouse away from the user, but there is an immense legal significance to those few clicks."

A year later, the Supreme Court agreed that the CDA was unconstitutional–and that the Internet is not pervasive. Quoting the Philadelphia opinions, the Court noted that "the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial." The Court added that "the Internet is not as `invasive' as radio or television."

It was the right result, but it was based on unstable ground. In future trials, the supporters of censorship will do everything they can to show that indecent Internet content can spring out at unsuspecting children. (Consider www.whitehouse.com.) And as the boundaries between the Internet and television continue to erode, with more and more people getting wired and increasingly high-quality video programming available online, the analogy between the media will become harder to resist. The Court has not overruled its ill-considered holding in Pacifica. It has simply found a flimsy technical excuse for not applying it to the Internet.

Nor does the potential reach of the pervasiveness doctrine end with the Internet. Author Wendy McElroy, former president of Feminists for Free Expression, comments: "Taken to its logical conclusion, the pervasiveness argument would prohibit anyone standing on a public street from discussing…controversial matters. The open air might well transmit the discussion through the open windows of nearby houses, businesses, and apartments. One might reply, `Let them close the window.'"

In Pacifica, the Court failed to explain why books and magazines are not pervasive. Previous generations of American children saw their first nude image not on the Internet or cable TV but in the pages of a Playboy found in Dad's closet. As Justice Brennan pointed out, a child flipping through the pages of the Bible is apt to stumble across a passage pertaining to excrement, urination, rape, or incest. The danger of the pervasiveness doctrine is a matter of simple logic: If the pervasiveness of a medium is an excuse for censorship, and all media are pervasive, all media can be censored.

"Taken literally," says Washington, D.C., attorney and First Amendment specialist Robert Corn-Revere, "the pervasiveness doctrine empowers government to exert greater control over a medium of communication to the extent it is universally available and influential. By this logic, the printing press should be subject to intensive regulation, since few media are as pervasive as print. Such reasoning is antithetical to the First Amendment."

The operative metaphor for freedom of speech in the United States was formulated eight decades ago by Oliver Wendell Holmes. Dissenting from the Supreme Court's decision in Abrams v. United States, he wrote: "The ultimate good desired is better reached by free trade in ideas….The best test of truth is the power of thought to get itself accepted in the competition of the market." In the marketplace of ideas, every medium strives to be pervasive, and so does every idea communicated in those media. The First Amendment rule book says speakers should compete to make their messages as pervasive as possible. Pacifica penalizes the winners.

Jonathan D. Wallace ([e-mail]), a software executive and attorney in New York City, is co-author of Sex, Laws, and Cyberspace (Henry Holt) and publisher of Ethical Spectacle (www.spectacle.org).