Today’s morning newscasts were filled with the stories of the passing of George Carlin – a comedian and satirist who effectively wrote the indecency regulations that most broadcasters abide by – without the FCC ever having had to adopt the regulations that he attributed to them. In the broadcast world, Mr. Carlin was probably best known for his routine about the Seven Words that You Can Never Say on TV. When that routine was aired by a New York radio station, and heard by a parent who claimed that he had a child in his car when the routine came over his radio in the middle of the day, the resulting FCC action against the station resulted in appeals that ended in the Supreme Court which, in its Pacifica case, upheld the right of the FCC to adopt indecency rules for the broadcast media to channel speech that is indecent, though not legally obscene, into hours when children are not likely to be listening. But what this case and the FCC ruling did not hold are perhaps more misunderstood than what the case did hold.
First, the case was about "indecency" not "obscenity." Many of this morning’s newscasts referred to the Pacifica decision as being an Obscenity decision. Obscenity is speech that can be banned no matter what the time and place, as it is speech that is deemed to have no socially redeeming value. Indecency, on the other hand, is a far more limited concept. Indecent speech is speech that is constitutionally protected – it has some social significance such as the social commentary clearly conveyed by the Carlin routine. It cannot be constitutionally banned. But the Supreme Court upheld the FCC’s decision in the Pacifica case that, because of the intrusive nature of the broadcast media, it can be limited to hours where children are not likely to be in the audience. Hence, the FCC has a "safe harbor" that allows indecent programming between the hours of 10 PM and 6 AM, when "obscene" programming is never allowed on the air.