Radio is the oldest large-scale broadcast media technology, and remains one of the most immediate. The government's experiments with regulating the publicly-owned radio spectrum have set precedents for other media technology as well, ranging from television to the Internet.
1927Congress passes the Radio Act, granting federal regulators the authority to "suspend the license of any operator" who "has transmitted … radio communications containing profane or obscene words or language."
1934Congress creates the Federal Communications Commission to oversee regulation of publicly-owned bandwidth.
1960The Federal Communications Commission is formally given a mandate to suspend or revoke the licenses of stations that violate indecency laws.
1961The FCC declines to renew the license of WDKD in South Carolina due to what it calls the "obscene and indecent" radio commentary style of local personality Charlie Walker, whose use of colorful phrases—most notably, "let it all hang out"—offended what the FCC describes as "those of highly developed sensibilities."
1964The FCC does not intervene in a radio station's decision to broadcast Edward Albee's controversial play The Zoo Story due, in part, to its decision to air the play after 10pm. This implies an "indecency safe harbor" between 10pm and 6am, during which a station's decision to broadcast indecent material would be less likely to incur a response from the FCC.
1970The FCC fines Eastern Educational Radio $100 for airing a profanity-laced interview with Grateful Dead lead singer Jerry Garcia.
1973The FCC fines a station $2,000 for airing a sexually explicit talk show, Femme Forum, between the hours of 10am and 3pm. The case was challenged to the D.C. Circuit Court of Appeals, which upheld the fine.
1978In FCC v. Pacifica, the U.S. Supreme Court allows the FCC to fine a station for airing George Carlin's "seven dirty words" routine—and formally establishes the power of the FCC to impose an indecency regulation standard on broadcast media. As Justice John Paul Stevens writes in the majority opinion:
If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content - or even to the fact that it satirized contemporary attitudes about four-letter words - First Amendment protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends …Although the definition of indecency has changed over time, the case remains settled law.
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. Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.