Pacifica Foundation v. Federal Communications Commission and United States of America

LEVENTHAL, Circuit Judge,

dissenting:

The Commission’s declaratory order was issued in FCC File No. BRH-13, In the Matter of a Citizen’s Complaint Against Pacifica Foundation, Station WBAI (FM) New York, New York. The Declaratory Order consists of sixteen numbered paragraphs, followed by an Ordering paragraph. In the footnote I set out the Commission’s Conclusion, which contains the three final numbered paragraphs, together with the Ordering paragraph. 1 The majority vacates the order. I dissent.

*31 The Appendix to this opinion contains the transcript of the George Carlin record. It may offend some sensibilities. But I think it important, especially because so many may be disposed to consider the matter in absolutist terms, to know what material it is that the Commission has held was improperly broadcast in the afternoon. This transcript is written, and it may well be more heavy handed than the monologue as heard on the radio. But counsel have not complained that the transcript format distorts or fails to present the issues.

I

The majority opinions treat the FCC’s order as though it prohibited any TV or radio broadcast which included one of the seven words identified in the FCC’s paragraph 14. The Commission held only “that the language as broadcast was indecent and prohibited by 18 U.S.C. § 1464”. 2 The words were identified as depicting “sexual activities and excretory activities and organs in a manner patently offensive by contemporary community standards for the broadcast media”, and further identified as “prerecorded language with the words repeated over and over . . . deliberately broadcast.” But over and above the Commission’s focus on the deliberate repetition of these words, was a clear and crucial emphasis on the timing of the broadcast. It was vital to the order that the words were broadcast “in the early afternoon” when “children were undoubtedly in the audience.” The order specifically stated that the prohibition of the “broadcast of ‘filthy words’ considered indecent particularly when children are in the audience” would not force on the general listening public ideas “fit only for children.”

Commissioners Reid and Quello stated that in their view the declaratory order should have gone further and prohibited such language at any time of the day or night. That was a minority expression. Chairman Wiley concurred only in the result. Commissioner Robinson, joined by Commissioner Hooks, concurred on the ground of time limitation, as a reasonable measure “to insist that programming of a kind whose broadcast to children would be thought inappropriate be confined to hours of the evening in which children would not ordinarily be exposed to the material — or at least not without the supervision of a parent.” 3

*32 In light of this array of concurrences, the Commission’s decision must be read narrowly, limited to the language “as broadcast” in the early afternoon.

II

Exposure to children marks a special enclave in the law of freedoms of publication. Even the dissent of Justice Brennan in Miller v. California, 413 U.S. 15, 47 , 93 S.Ct. 2607 , 37 L.Ed.2d 419 , abstained from discussing state power over distribution to juveniles. As to children, it is obvious that the state has more latitude to require that certain movies, which are not censored generally, should nevertheless not be exhibited in performances to which children under 16 are admitted. The problem is that radio-TV broadcasting cannot be handled in so tailored a fashion.

In regard to broadcasting, the probable presence of children in the radio audience is relevant to a determination of obscenity. So we held in Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S.App.D.C. 166, 173 , 515 F.2d 397, 404 (1975).

The FCC opinion under discussion refers to what is “indecent” rather than what is “obscene.” If the term “indecent” were stretched to cover what would normally be included as, say, sacrilegious, it would depart too far from the context of section 1464. 4 But as I read the FCC’s order, it reflects an effort to define “indecent” in terms of the same underlying considerations as those which prompted the Supreme Court in Miller . In the last analysis, the FCC’s opinion on what is “indecent” stands as a functional equivalent to the Supreme Court’s current “obscenity” ruling (Miller), save for an adaptation to bridge the difference posed by the characteristic of radio presentation.

The majority opinions seem to consider “indecent” as a novel concept in the law, which should in their view not be extended beyond control of the “obscene.” They wholly fail to take account of one aspect of Miller , which has not been much analyzed but which seems to me to have been deliberate and significant. The pre-Miller rulings had always defined “obscene” in terms *33 of what appeals to the lewd and prurient interest, see e. g. Roth v. United States, 354 U.S. 476, 487 , 77 S.Ct. 1304 , 1 L.Ed.2d 1498 , for the concept that had previously been defined. But Miller expanded on this — to include “patently offensive representations or descriptions of ... excretory functions.” 413 U.S. at 25 , 93 S.Ct. at 2615 . 5 This is in substance a stretch of the prohibition to go beyond the lewd obscene to the excretory indecent. And that is the only increment given to the term “indecent” in the FCC’s opinion and order.

Mr. George Carlin is a comedian of stature, and a social satirist, but it is in the nature of social satirists to be provocative. He himself delivered his words as a biting commentary on what could not be heard on radio-TV, but he delivered them in a theater. A mature audience might appreciate not only the particular paradox, but the ongoing dilemma, that every society has special vocabularies appropriate only for special groups, times and places. What the licensee did here was to broadcast them broadside, in houses and elsewhere; and to present the persistent, almost lavishly loving reiteration of the special words in an afternoon broadcast when children were likely in the audience. I cannot fault the FCC’s order declaring that broadcast as indecent under 18 U.S.C. § 1464 . TV-radio broadcasting has special access to the home, and home audiences are a primary target of the industry. In the home special considerations apply, with freedom from unwanted intrusion both by the government, Stanley v. Georgia, 394 U.S. 557 , 89 S.Ct. 1243 , 22 L.Ed.2d 542 (1969), and by others presenting unwanted materials, Rowan v. Post Office Dept., 397 U.S. 728 , 90 S.Ct. 1484 , 25 L.Ed.2d 736 (1970).

A concept like “indecent” is not verifiable as a concept of hard science. Its acceptance by and application by the FCC does not necessarily reflect, or depend upon, a determination by the FCC that this material would be dangerous to the children. What it reflects is a determination concerning a broad consensus of society, the view that the great bulk of families would consider it potentially dangerous to their children, and the further view that in our society, with the family as its base block, it is the family that should have the means to make that choice. With the pervasiveness of TV-radio and its reach into the home the choice made by broadcasters precludes an effective choice by the family.

Because of the unique interest in home life, especially strong in homes where children are being raised, it is bootless to quote from cases that reflect a more permissive attitude to speech in public streets and places, without attention to the difference. In Erznoznik v. City of Jacksonville, 422 U.S. 205 , 95 S.Ct. 2268 , 45 L.Ed.2d 125 (1975), there was a showing of a film in a drive-in theater, at night. Any children in the audience were not being reached at home. They had access only if, having been excluded from the theater, they sought out the film from a non-contemplated location. Cohen v. California, 403 U.S. 15 , 91 S.Ct. 1780 , 29 L.Ed.2d 284 (1971), was a case of emphatic political speech. The otherwise offensive protest occurred in the courthouse, basically an adult locale, open only during the day. The reality of broadcasting’s special access to the home conjoins with the passivity of TV-radio reception — a mere click, without current purchase. Indeed there is passivity after the click, with TV-radio stations being frequently left to a dial position previously set, unless there is an “alert” of some kind.

*34 III

A crucial reality, dominating the case at hand, is the widespread access of radio to children. Radio is relatively inexpensive in initial capital cost, and virtually a free good in terms of operating expense. Widespread freedom of selection of programs by children is not only a condition, it is often a necessity. Today, a majority of families with school-age children have working mothers, and one out of five children in the United States live with only one parent, so that many children are at home unsupervised during the day. 6 In this totality of conditions, one cannot wave away the radio-TV problem on the ground that the (mature) person can readily switch the channel.

It is no objection to the validity of the Commission’s declaratory order that its protection will not be complete. It is likely that children will hear these words somehow, somewhere, and even at a relatively early age, but it makes a difference whether they hear them in certain places, such as the locker room or gutter, or at certain times, that do not identify general acceptability.

It is argued that the FCC’s order is meaningless, because many children listen to TV-radio unsupervised even late at night. A ban would not be proved invalid by a showing that in some homes the parents habitually use such language in front of their children. Similarly, a daytime ban is not invalid because some parents give their children freedom in late hours. That does not show the ruling is futile, for it may still provide protection to a large number of the households of America. Nor is it sound to say that partial control must logically end in total prohibition, at all times and for all audiences. Licensees have the ability to make time distinctions. See In re Pacifica Foundation, 36 F.C.C. 147 , 149 (1964) (noting that “Pacifica took into account the nature of the broadcast medium when it scheduled [programs with sexual themes or indecent language] for the late evening hours (after 10 p. m., when the number of children in the listening audience is at a minimum”).

The abhorrence of Censorship is a vital part of our society. But there is a distinction between the all-out prohibition of a censor, and regulation of time and place of speaking out, which still leaves access to a substantial part of the mature audience. What is entitled to First Amendment protection is not necessarily entitled to First Amendment protection in all places. Young v. American Mini Theatres, Inc., 427 U.S. 50 , 96 S.Ct. 2440 , 49 L.Ed.2d 310 (1976). Nor is it necessarily entitled to such protection at all times.

Commissioner Robinson’s apt citation of Justice Holmes 7 is rightly conjoined with a caution against the Ringing Phrase. We must beware of the distortion of doctrines and concepts that are pushed to extremes. In affirming the FCC’s order, we would not be condoning a censorship that put the message of Mr. George Carlin off the air. 8 We *35 would be authorizing reasonable steps that permit that message to find an audience, without pasting it on the youth. They are impressionable, and likely to savor and repeat what they hear of the forbidden, without the maturity to distinguish between the different vocabularies and mindsets that every society harbors for different times and places.

Smut may drive itself from the market, and confound Gresham. So Judge Tamm suggests. Judges cannot, however, premise that there is not really a market that will endure. 9 In any event, there is a problem of the transition period. Even the most earnest advocates of freedom accept the role of government in protecting those who lack capacity.

IV

It is appropriate to acknowledge some inexactness in the agency’s approach, and to say that this is an abiding discomfort but not a brand of invalidity. Vagueness is to some extent inherent in the subject matter, and is heightened by a procedure, of rulings in particular instances, that presents problems but also has virtues. The Supreme Court’s long struggle with obscenity cases reflects the underlying complexities, and those cases involved criminal sanctions. Nor is regulation of indecency precluded by the administrative agency setting. Miller has language that features the value of a finding by a jury representing the community. Yet Miller's continuation of an obscenity exception to freedom of press has been approved in other cases where there was no criminal prosecution and no jury. 10 I see no constitutional impediment either to an agency’s determination in the first instance, or to its use of an approach much like that used by the courts, disposing of particular cases presented with an indication of underlying principles — so long as there is judicial review.

In the case of the Federal Communications Commission, there can be judicial review of any obscenity-indecency ruling at the instance of those who want to see and hear the material even if the licensee is ready to drop the matter. Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S.App.D.C. 166 , 515 F.2d 397 (1974). Judicial review would ensure the protection afforded by the Constitution to works professing literary, artistic, political or scientific values. 11 The court would further guarantee that any determination of obscenity or indecency reflects the “hard look” by the agency appropriate where broadcast freedom and choice is limited. 12 Finally the court would require that the agency fully respect the licensee’s range of discretion, and not disapprove the licensee’s action merely because the agency had a different view of the matter, but only because the *36 licensee had gone so far as to be marked for an abuse of his license. 13

V

What we have before us is the Federal Communications Commission order declaring the invalidity of particular language “as broadcast.” That carries with it the limitations of time and deliberate repetition identified by the FCC.

The limitation of time is the afternoon. I am aware that the FCC’s only indication of acceptability for the broadcast referred to the late hours of the evening. 14 But the issue of what might be broadcastable in the early evening is not before us, and raises different considerations. That would be a time when there were large numbers of children in home audiences generally, but the issue could' be raised that for homes where parents really care about such matters there would be at least one parent in a position to monitor the material heard and seen. A ruling expanding the zone of the broadcastable to adult levels might apply when the time of broadcast is such that the great preponderance of children are subject to parental control.

Under Miller matter is not “obscene” if it has literary, educational, artistic, political or scientific value, and accordingly is not “indecent” (under a Miller-analogue test) if it has such value. But the fact that it has such value for adults does not mean it has such value in a broadcast geared to children — or in a broadcast where a substantial number of children are likely to be in the audience without parental supervision. 15 A different question arises as to whether it may have such value for a broadcast during evening hours when children are likely to be in the audience, but are also likely to be under parental control, in the case of those parents who really are concerned with and want to avoid the exposure of their children. Such a program may have serious literary, artistic, political or scientific value for its audience — assuming the exclusion from the audience (due to opportunity for parental control) of most of the children who by disposition, training or understanding, will be dominated by the blunt impact of the sexual and excretory words, and for whom the serious content will be non-existent.

There are certain aspects in which the FCC’s order may be subject to particular question — both as to words interdicted 16 *37 and as to the duration of the time span. 17 Those are not the objections to the order that were preserved for this court. I would reserve those for another time — as calling for a modification of the FCC order, on objections duly presented, but not an all-out condemnation.

VI

As a judge of what the Constitution calls an “inferior” court, my duty is to apply Miller unless and until the Supreme Court modifies it. Given the independence of a legal commentator (see note 11), I have voiced my gravest doubts concerning the vitality of Miller’s effort to resolve the “intractable” question of obscenity. But even my personal approach would let freedom ring with some muffle of time and place as a constitutional trade-off — to assist parents in their protection of young children during the uniquely prolonged period of development needed to permit the emergence of a competent and consenting person, and to protect some privacy in the home and in residential and civic neighborhoods that are family areas of shared community space. The latter consideration is not priggishness, but reflects a value that Alexander Bickel identified (see note 5, supra) as society’s concern with the quality of its community life. As for children, even assuming that children’s exposure to pornography is as inevitable as pornography itself, there is protection in disapproval, in the child’s knowledge that the pornography that is seen and heard is not approved by parents or society. 18 That much of a trade-off is likely to persist under Miller , even if that decision is modified. It leads me to affirm the FCC’s effort to apply Miller in the context of daytime broadcasting — when the protection of children is a compelling state interest. 19 I respectfully dissent.

APPENDIX 1

APPENDIX

The following is a verbatim transcript of “Filthy Words” (Cut 5, Side 2), from the record album “George Carlin, Occupation: Foole” (Little David Records, LD 1005).

“Aruba-du, ruba-tu, ruba-tu.

I was thinking about the curse words and the swear words, the cuss words and the words that you can’t say, that you’re not supposed to say all the time, cause words or people into words want to hear your words. Some guys like to record your words and sell them back to you if they can, (laughter) listen in on the telephone, write down what *38 words you say. A guy who used to be in Washington knew that his phone was tapped, used to answer, Fuck Hoover, yes, go ahead, (laughter) Okay. I was thinking one night about the words you couldn’t say on the public, ah, airwaves, um, the ones you definitely couldn’t say, ever, cause I heard a lady say bitch one night on television, and it was cool like she was talking about, you know, ah, well, the bitch is the first one to notice that in the litter Johnie right (murmur) Right. And, uh, bastard you can say, and hell and damn so I have to figure out which ones you couldn’t and ever and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself. The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon, (laughter) And now the first thing that we noticed was that the word fuck was really repeated in there because the word motherfucker is a compound word and it’s another form of the word fuck, (laughter) You want to be a purist it doesn’t really — it can’t be on the list of basic words. Also, cocksucker is a compound word and neither half of that is really dirty. The word — the half sucker that’s merely suggestive (laughter) and the word cock is a half-way dirty word, 50% dirty — dirty half the time, depending on what you mean by it. (laughter) Uh, remember when you first heard it, like in 6th grade, you used to giggle. And the cock crowed three times, heh (laughter) the cock — three times. It’s in the Bible, cock is in the Bible, (laughter) And the first time you heard about a cock-fight remember— What? Huh? Naw. It ain’t that, are you stupid? man, (laughter, clapping) It’s chickens, you know, (laughter) Then you have the four letter words from the old Anglo-Saxon fame. Uh, shit and fuck. The word shit, uh, is an interesting kind of word in that the middle class has never really accepted it and approved it. They use it like, crazy but it’s not really okay. It’s still a rude, dirty, old kind of gushy word, (laughter) They don’t like that, but they say it, like, they say it like, a lady now in a middleclass home, you’ll hear most of the time she says it as an expletive, you know, it’s out of her mouth before she knows. She says, Oh shit oh shit, (laughter) oh shit. If she drops something, Oh, the shit hurt the broccoli. Shit. Thank you. (footsteps fading away) (papers ruffling)

Read it! (from audience)

Shit! (laughter) I won the Grammy, man, for the comedy album. Isn’t that groovy? (clapping, whistling) (murmur) That’s true. Thank you. Thank you man. Yeah, (murmur) (continuous clapping) Thank you man. Thank you. Thank you very much, man. Thank, no, (end of continuous clapping) for that and for the Grammy, man, cause (laughter) that’s based on people liking it man, yeh, that’s ah, that’s okay man. (laughter) Let’s let that go, man. I got my Grammy, I can let my hair hang down now, shit, (laughter) Ha! So! Now the word shit is okay for the man. At work you can say it like crazy. Mostly figuratively, Get that shit out of here, will ya? I don’t want to see that shit anymore. I can’t cut that shit, buddy. I’ve had that shit up to here. I think you’re full of shit myself, (laughter) He don’t know shit from Shinola (laughter) you know that? (laughter) Always wondered how the Shinola people felt about that, (laughter) Hi, I’m the new man from Shinola. (laughter) Hi, how are ya? Nice to see ya. (laughter) How are ya? Boy, I don’t know whether to shit or wind my watch, (laughter) Guess, I’ll shit on my watch, (laughter) Oh, the shit is going to hit de fan. (laughter) Built like a brick shit-house, (laughter) Up, he’s up shit’s creek, (laughter) He’s had it. (laughter) He hit me, I’m sorry, (laughter) Hot shit, holy shit, tough shit, eat shit, (laughter) shit-eating grin. Uh, whoever thought of that was ill. (murmer laughter). He had a shit-eating grin! He had a what? (laughter) Shit on a stick, (laughter) Shit in a handbag. I always liked that. He ain’t worth shit in a hand *39 bag. (laughter) Shitty. He acted real shitty, (laughter) You know what I mean? (laughter) I got the money back, but a real shitty attitude. Heh, he had a shit-fit. (laughter) Wow! Shit-fit. Whew! Glad I wasn’t there, (murmur, laughter) All the animals — Bull shit, horse shit, cow shit, rat shit, bat shit, (laughter) First time I heard bat shit, I really came apart. A guy in a Oklahoma, Boggs, said it, man. Aw! Bat shit, (laughter) Vera reminded me of that last night, ah (murmur). Snake shit, slicker than owl shit, (laughter) Get your shit together. Shit or get off the pot. (laughter) I got a shit-load full of them, (laughter) I got a shit-pot full, all right. Shit-head, shit-heel, shit in your heart, shit for brains, (laughter) shit-face, heh. (laughter) I always try to think how that could have originated; the first guy that said that. Somebody got drunk and fell in some shit, you know, (laughter) Hey, I’m shit-face, (laughter) Shit-face, today, (laughter) Anyway, enough of that shit, (laughter) The big one, the word fuck that’s the one that hangs them up the most. Cause in a lot of cases that’s the very act that hangs them up the most. So, it’s natural that the word would, uh, have the same effect. It’s a great word, fuck, nice word, easy .word, cute word, kind of. Easy word to say. One syllable, short u. (laughter) Fuck. (Murmur) You know, it’s easy. Starts with a nice soft sound fuh ends with a kuh. Right? (laughter) A little something for everyone. Fuck, (laughter) Good word. Kind of a proud word, too. Who are you? I am FUCK. (laughter) FUCK OF THE MOUNTAIN. (laughter) Tune in again next week to FUCK OF THE MOUNTAIN, (laughter) It’s an interesting word too, cause it’s got a double kind of a life — personality—dual, you know, whatever the right phrase is. It leads a double life, the word fuck. First of all, it means, sometimes, most of the time, fuck. What does it mean? It means to make love. Right? We’re going to make love, yeh, we’re going to fuck, yeh, we’re going to fuck, yeh, we’re going to make love, (laughter) we’re really going to fuck, yeh, we’re going to make love. Right? And it also means the beginning of life, it’s the act that begins life, so there’s the word hanging around with words like love, and life, and yet on the other hand, it’s also a word that we really use to hurt each other with, man. It’s a heavy. It’s one that you save toward the end of the argument, (laughter) Right? (laughter) You finally can’t make out. Oh, fuck you man. I said, fuck you. (laughter, murmur) Stupid fuck, (laughter) Fuck you and everybody that looks like you, (laughter) man. It would be nice to change the movies that we already have and substitute the word fuck for the word kill, wherever we could, and some of those movies cliches would change a little bit. Madfuckers still on the loose. Stop me before I fuck again. Fuck the ump, fuck the ump, fuck the ump, fuck the ump, fuck the ump. Easy on the clutch Bill, you’ll fuck that engine again, (laughter) The other shit one was, I don’t give a shit. Like it’s worth something, you know? (laughter) I don’t give a shit. Hey, well, I don’t take no shit, (laughter) you know what I mean? You know why I don’t take no shit? (laughter) Cause I don’t give a shit, (laughter) If I give a shit, I would have to pack shit, (laughter) But I don’t pack no shit cause I don’t give a shit, (laughter) You wouldn’t shit me, would you? (laughter) That’s a joke when you’re a kid with a worm looking out the bird’s ass. You wouldn’t shit me, would you? (laughter) It’s an eight-year-old joke but a good one. (laughter) The additions to the list, I found three more words that had to be put on the list of words you could never say on television, and they were fart, turd and twat, those three, (laughter) Fart, we talked about, it’s harmless. It’s like tits, it’s a cutie word, no problem. Turd, you can’t say but who wants to, you know? (laughter) The subject never comes up on the panel so I’m not worried about that one. Now the word twat is an interesting word. Twat! Yeh, right in the twat. (laughter) Twat is an interesting word because it’s the only one I know of, the only slang word applying to the, a part of the sexual anatomy that doesn’t have another meaning to it. Like, ah, snatch, box and pussy all have *40 other meanings, man. Even in a Walt Disney movie, you can say, We’re going to snatch that pussy and put him in a box and bring him on the airplane, (murmur, laughter) Everybody loves it. The twat stands alone, man, as it should. And two-way words. As, ass is okay providing you’re riding into town on a religious feast day. (laughter) You can’t say, up your ass. (laughter) You can say, stuff it! (murmur) There are certain things you can say its weird but you can just come so close. Before I cut, I, uh, want to, ah, thank you for listening to my words, man, fellow, uh, space travelers. Thank you man for tonight, and thank you also, (clapping, whistling)”

. CONCLUSION

14. Applying these considerations to the language used in the monologue broadcast by Pacifica’s station WBAI, in New York, the Commission concludes that words such as “fuck,” “shit,” “piss,” “motherfucker,” “cocksucker,” “cunt” and “tit” depict sexual and excretory activities and organs in a manner patently offensive by contemporary community standards for the broadcast medium and are accordingly “indecent” when broadcast on radio or television. These words were broadcast at a time when children were undoubtedly in the audience (i. e., in the early afternoon). Moreover, the pre-recorded language with the words repeated over and over was deliberately broadcast. We therefore hold that the language as broadcast was indecent and prohibited by 18 U.S.C. 1464. Accordingly, the licensee of WBAI-FM could have been the subject of administrative sanctions pursuant to the Communications Act of 1934, as amended. No sanctions will be imposed in connection with this controversy, which has been utilized to clarify the applicable standards. However, this order will be associated with the station’s license file, and in the event that subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress. See footnote 3 above.

15. There are several reasons why we are issuing a declaratory order instead of a notice of apparent liability as we did in WUHY-FM and Sonderling. A declaratory order is a flexible procedural device admirably suited to terminate the present controversy between a listener and the station, and to clarify the standards which the Commission utilizes to judge “indecent language.” See 5 U.S.C. 554(e), and 47 C.F.R. 1.2. Such an order will permit all persons who consider themselves aggrieved or who wish to call additional factors to the Commission’s attention to seek reconsideration. 47 U.S.C. § 405 . If not satisfied by the Commission’s action on reconsideration, judicial review may be sought immediately.

*31 16. This order is issued not only pursuant to 18 U.S.C. § 1464 but also in furtherance of our statutory obligation to promote the larger and more effective use of radio in the public interest. 47 U.S.C. § 303 (g). It is not intended to stifle robust, free debate on any of the controversial issues confronting our society. That debate can continue unabated. Prohibiting the broadcast of “filthy words” considered indecent particularly when children are in the audience will not force upon the general listening public debates and ideas which are “only fit for children.” First, the number of words which fall within the definition of indecent is clearly limited. Second, during the late evening hours such words conceivably might be broadcast, with sufficient warning to unconsenting adults provided the programs in which they are used have serious literary, artistic, political, or scientific value. In this as in other sensitive areas of broadcast regulation the real solution is the exercise of licensee judgment, responsibility, and sensitivity to the community’s needs, interests and tastes. Programming Policy Statement, 25 Fed.Reg. 7291, 20 Pike & Fischer 1901 (1960); Stone v. FCC, 151 U.S.App.D.C. 145 , 466 F.2d 316 (1972); Yale Broadcasting Co. v. FCC, 155 U.S.App.D.C. 390 , 478 F.2d 594 , cert. denied, 414 U.S. 914 , 94 S.Ct. 211 , 38 L.Ed.2d 152 (1973). The Commission’s failure to set forth its position could lead to widespread use of indecent language on the public’s airwaves, a development which would (1) critically impair broadcasting as an effective mode of expression and communication, (2) ignore the rights of unwilling recipients, and (3) ignore the danger of exposure to children. We do not propose to abdicate our responsibility to the public interest.

Accordingly, IT IS ORDERED, that the complaint filed December 3, 1973, against Pacifica Foundation, licensee of Station WBAI, New York, New York, IS GRANTED to the extent indicated above.

. 18 U.S.C. § 1464 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.

. Nothing herein is inconsistent with a rejection of any claim to be the “general censor” and guardian of the public morals in regard to broadcast communications. What we *32 assert is a special power to protect the young — or, more precisely, people’s views about what sort of material it is proper to expose to the young — a purpose which even hardbitten libertarians do not find entirely uncongenial.12 Even here there is obviously need for caution, lest in our proper concern for protecting children of impressionable age from language to which they ought not to be exposed, we also undertake to regulate the tastes of adults. I am, however, satisfied that we can take reasonable measures short of censorship to channel programming where, as here, it is not adequately controlled to avoid casual listening by children. The principal means by which this can be achieved is to insist that programming of a kind whose broadcast to children would be though inappropriate be confined to hours of the evening in which children would not ordinarily be exposed to the material — or at least not without the supervision of a parent. Short of an all-out ban on indecent or offensive programming during daytime hours we can also insist that suitable measures be taken to warn adults that possibly offensive programming is about to be presented. Beyond such modest controls, however, I would not proceed.

12 Even Mill, second to none in advocating a limited role for government, granted it broader role in regard to minors — those not “in the maturity of their faculties.” On Liberty, reprinted in Utilitarianism, Liberty and Representative Government, p. 96 (Everyman ed. 1951). He also granted such a role to government in cases of “backward” societies, Ibid. I hope we do not qualify for that exception.

51 F.C.C.2d

IV. CONCLUSION

On the premise advanced by Justice Holmes that “all rights tend to declare themselves absolute to their logical extreme,” Hudson Water Co. v. McCarter, 209 U.S. 349, 355 [ 28 S.Ct. 529 , 52 L.Ed. 828 ] (1908), there is no logical ground for compromise between the right of free speech and the right to have public utterance limited to some outside boundary of decorum. But while the conflicting claims of liberty and propriety cannot be reconciled, they can be made to coexist by tour de force. This agency, in my view, has the power to compel that co-existence in the limited scale we undertake today. I assent to it because I recognize that the only possible way to take a mediate position on issues like obscenity or indecency is to avoid dogmatism and its meretricious handmaiden, the Ringing Phrase, and to split the difference, as sensibly as can be, between the contending ideas.

. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 , 72 S.Ct. 777 , 96 L.Ed. 1098 (1952).

. The concept of appeal to the prurient interest had previously been justified in some quarters on the ground that the material might stimulate sexual activity. Obviously, the representation of excretory functions would not stimulate excretory activity. It might sexually stiihulate some seriously disturbed persons, but so might any fetish, such as a shoe. While Miller and accompanying opinions discourse at length on the possible nexus of obscenity and antisocial behavior, in the last analysis they do not depend on a showing or assumption of antisocial activity, but rather reflect a judicial conception that the law may give sanctions to the community’s effort to avoid degradation of its quality of life and imposition on the privacy of others. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 59 , 93 S.Ct. 2628 , 37 L.Ed.2d 446 (1973), referring to the view of Professor Alexander Bickel.

. Smithsonian, Feb. 1977, p. 13 (noting that “most kids are latchkey children”). See also N.Y. Times, Feb. 10, 1977, at 39, Col. 3 (City ed). The most recent data appear in Bureau of the Census, Dep’t of Commerce, Marital Status and Living Arrangements: March 1976, Series P-20 No. 306, at 7 (January 1977):

Eighty percent of the children under 18 years old in 1976 lived in families with both of their parents present, a decline from 85 percent in 1970.

See also U.S. Dep’t of Labor, News Release (February 25, 1977) (majority of children between ages of 6 and 17 have mothers in the labor force).

. Hudson Water Co. v. McCarter, 209 U.S. 349, 355 , 28 S.Ct. 529 , 52 L.Ed. 828 (1908). (“All rights tend to declare themselves absolute to their logical extreme.”)

. Moreover, it seems to me implicit in the Commission’s order prohibiting the language “as broadcast” that the Commission does not intend to ban from the afternoon air waves every work of literature which contains one of these words. The monologue broadcast here was an exploration of obscenity, “with the words repeated over and over.” FCC Conclusion at H 14. It was very different from the plays of Shakespeare or the novels of Fielding, which may occasionally include, in the course of dealing with some larger theme, a word customarily indecent, and would be so regarded if not redeemed by the literary, artistic, political, or scientific context.

. The British Broadcasting Corporation experience cited by Judge Tamm (at p. 18) may not be transportable. The British began with commercial domination of the airwaves, and recoiled from its excess to develop BBC as a government agency, with a tradition of independence from the executive, that would operate in the public interest without the need for operating profits. The United States began with government operation of airwaves, which Herbert Hoover resolved should never be captured by commercial interests. But it later determined to permit radio (and later TV) broadcasting to draw on the energy of private enterprise — and that prime mover demands the spark of private profit. Whatever pornography’s claim to constitutional protection, its basic reason for existence is to make money in the market. And if some publishers or broadcasters are engaged in disseminating the interdicted as a matter of principle, then the disapproval of the majority will not be a barrier, and might even be a spur.

. United States v. Twelve 200 Ft. Reels of Super 8 mm. Film, 413 U.S. 123 , 93 S.Ct. 2665 , 37 L.Ed.2d 500 (1973); Alexander v. Virginia, 413 U.S. 836 , 93 S.Ct. 2803 , 37 L.Ed.2d 993 (1973); Star v. Preller, 419 U.S. 956 , 95 S.Ct. 217 , 42 L.Ed.2d 173 , aff’ng mem 375 F.Supp. 1093 (D.Md.1974) (3-judge court).

. I would explicitly add “educational” values, see H. Leventhal, The 1973 Round of Obscenity-Pornography Decisions, 59 ABAJ 1261, 1264 (1973).

. WAIT Radio v. FCC, 148 U.S.App.D.C. 179 , 459 F.2d 1203 , cert. denied, 409 U.S. 1027 , 93 S.Ct. 461 , 34 L.Ed.2d 321 (1972); Greater Boston TV Corp. v. FCC, 143 U.S.App.D.C. 383 , 444 F.2d 841 (1970), cert. denied, 403 U.S. 923 , 91 S.Ct. 2229 , 29 L.Ed.2d 701 (1971).

. Straus Communications, Inc. v. FCC, 174 U.S.App.D.C. 149 , 530 F.2d 1001 (1976); National Broadcasting Co. v. FCC, 170 U.S.App. D.C. 173, 516 F.2d 1101 (1975), cert. denied, 424 U.S. 910 , 96 S.Ct. 1105 , 47 L.Ed.2d 313 (1975). Compare Jacobeliis v. Ohio, 378 U.S. 184, 197 , 84 S.Ct. 1676, 1683 , 12 L.Ed.2d 793 4 (1964) (Stewart, J., concurring: “I know it when I see it . . . ”).

. In addition to the reference in U 16, quoted in the first footnote of this dissent, there is also paragraph 12, preceding the conclusion, as follows:

12. When the number of children in the audience is reduced to a minimum, for example during the late evening hours, a different standard might conceivably be used. The definition of indecent would remain the same, i. e., language that describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs. However, we would also consider whether the material has serious literary, artistic, political or scientific value, as the licensee claims. Miller v. California, supra.

. In Ginsberg v. New York, 390 U.S. 629 , 88 S.Ct. 1274 , 20 L.Ed.2d 195 (1968) the Court upheld a state law providing distribution to minors under 17 of material not obscene for adults. Justice Brennan’s majority opinion holds the legislation could properly support parents in their discharge of their primary responsibility for children’s well-being, including the assessment of sex-related material “according ‘to prevailing standards in the adult community as a whole with respect to what is suitable material for minors.’ ” See 390 U.S. at 639 , 88 S.Ct. at 1280 .

. If the case had been presented from the start in a different way, I would have remanded for further consideration, to make the rulings and standards more specific in order to provide more information for other licensees, which is the FCC’s purpose. For one thing, I am not clear why the word “tit” is in the FCC’s Index, because it is neither a sexual nor excretory organ. The fact that Mr. Carlin included it in his list of the verboten does not mean that the FCC must adopt his position. But I do not think there is any material legal objection to *37 the ruling sustaining the complaint against petitioner, on the basis of its broadcast.

. Chief Judge Bazelon offers the thought that children are not home at 2 p. m. (page-n. 2 of 181 U.S.App.D.C., page 19 of 556 F.2d n. 2). That is not the objection put before the FCC or argued on appeal. That objection would merit proof and agency reflection — on . such matters as exposure of pre-school age children, whether schools in the area served by the station let some children out before 2 p. m., etc. In this record, issue was not joined with the FCC’s finding that 2 p. m. was a time when children were “undoubtedly in the audience.” (Par. 14, quoted in note 1 of this dissent).

. Compare the position of Professor Willard Gaylin, professor of psychiatry and law at Columbia University, presented in The Prickly Problems of Pornography, Book Review of Kuh, Foolish Fig Leaves? 77 Yale L.J. 579 , 594 (1968):

The child is protected in his reading of pornography by the knowledge that it is pornographic, that is, disapproved. It is outside of parental standards and not a part of his identification processes. To openly permit implies parental approval and even suggests seductive encouragement.

If this is so of parental approval, it is equally so of societal approval — another potent influence on the developing ego. The law is an instrument in the establishment of social behavior — and in the judging of it.

The foregoing was quoted in Justice Brennan’s majority opinion in Ginsberg v. New York, 390 U.S. 629 at 642 , 88 S.Ct. 1274 . When restating it recently, Professor Gaylin added: “The law, more than most lawyers seem to realize, is an ethical determinant and a moral force.” W. Gaylin, Obscenity, Washington Post, Feb. 20, 1977, p. C-l.

. Illinois Citizens Committee for Broadcasting v. FCC, 169 U.S.App.D.C. 166, 174 , 515 F.2d 397, 405 (1975); See Ginsberg v. New York, 390 U.S. 629 , 88 S.Ct. 1274 , 20 L.Ed.2d 195 (1968).