Pacifica Foundation v. Federal Communications Commission and United States of America , 556 F.2d 9 ( 1977 )

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).¹ 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.²

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 channeling³ 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,⁴ 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.⁵

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.⁶ 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,⁷ 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 clarification⁸ 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.⁹ 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.¹⁰ The Commission determined that it would be inequitable to hold a licensee responsible for indecent language broadcast during live coverage of a newsmaking event.¹¹ The Commission thought it better to trust the licensee to exercise judgment, responsibility and sensitivity to the needs, interest, and tastes of the community.¹²

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 communications¹³ and its own previous decisions and orders which leave the question of programming content to the discretion of the licensee.¹⁴

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.¹⁵

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.¹⁶ 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.” ¹⁷ 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.¹⁸ 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.¹⁹ 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.²⁰

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.²¹ 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.²² 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.²³ 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.²⁴ Commentators and commissioners alike have noted that broadcast media require majorities, or at least sizeable pluralities, to pay the bills.²⁵ If they are correct, and if the Commission truly seeks only to enforce community standards, the market should limit the filth accordingly.²⁶

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.

1 . 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.

2 . 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 ....

3 . 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.

4 . 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.

5 . Pacifica’s Brief at 24, n. 23.

6 . See App. B. at 28, et seq.

7 . Amicus’s Brief at 17 quoting Statement of John A. Schneider, Before the House Subcommittee on Communications, July 15, 1975, p. 9.

8 . Pacifica Foundation, 59 F.C.C.2d 892 (1976).

9 . Id.

10 . Id.

11 . Id.

12 . Id.

13 . 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.

14 . 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).

15 . App. B. at 28-39.

16 . 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).

17 . 47 U.S.C. § 326 (1970).

18 . See App. A at 10-12.

19 . 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.

20 . Pacifica Foundation, supra note 8.

21 . Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970).

22 . See Filthy Words, The FCC, and the First Amendment: Regulating Broadcast Obscenity, 61 Va.L.Rev. 579 (1975).

23 . Clarification of Section 76.256 of the Commission’s Rules and Regulations, 59 F.C.C.2d 984 (1976).

24 . See Filthy Words, supra note 22, at 615.

25 . 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.

26 . 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.