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The Story of FCC v. Pacifica Foundation (And Its Second Life)


Adam M. Samaha


New York University School of Law

August 16, 2010

FIRST AMENDMENT STORIES, Richard Garnett, Andrew Koppelman, eds., Foundation Press, 2010
U of Chicago, Public Law Working Paper No. 314

Abstract:     
This chapter provides a back story to FCC v. Pacifica Foundation – the so-called seven dirty words case, which upheld the Commission’s authority to regulate broadcast indecency. The history of broadcast indecency regulation is briefly reviewed, along with the emergence of countercultural radio in the 1960s and 1970s. The chapter then turns to George Carlin and his personal transformation, Pacifica radio and its turbulent times, and the complaint of a Morality in Media board member that instigated FCC proceedings. The litigation history of the case is likewise investigated. This research provides insight into why the Department of Justice switched sides when the case reached the Supreme Court, and it identifies Justice Stevens as the likely swing voter. Apparently he was wrestling with issues of statutory interpretation. The chapter includes new interviews with several participants in the controversy, as well as some original archival research. The chapter closes with a few thoughts on the path of indecency regulation since the Pacifica case. It points up the relationship between constraint and creativity; and it suggests that technological change making the broadcast medium less important also makes broadcast regulation less problematic. The ‘just change the channel’ argument, so rhetorically effective against indecency regulation in the past, is now switching sides.

Number of Pages in PDF File: 29

Keywords: indecency, censorship, broadcasting, first amendment, counterculture, law and society, sorting, exit

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Date posted: August 18, 2010 ; Last revised: September 17, 2010

Suggested Citation

Samaha, Adam M., The Story of FCC v. Pacifica Foundation (And Its Second Life) (August 16, 2010). FIRST AMENDMENT STORIES, Richard Garnett, Andrew Koppelman, eds., Foundation Press, 2010; U of Chicago, Public Law Working Paper No. 314. Available at SSRN: http://ssrn.com/abstract=1660004

Contact Information

Adam M. Samaha (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012-1099
United States
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