IN RE APPARENT LIABILITY OF STATION
WGLD-FM, OAK PARK, ILL. FOR FORFEITURE
FEDERAL COMMUNICATIONS COMMISSION
41 F.C.C.2d 919
APRIL 11, 1973
JUDGES:
The Commission by Commissioners Burch (Chairman), H. Rex Lee, Reid and Wiley,
with Commissioner Hooks concurring and issuing a statement and Commissioner Johnson dissenting and issuing a statement,
issued the following NEWS RELEASE:
OPINION:
[*919] WGLD-FM, OAK
PARK, ILL., APPARENTLY LIABLE FOR $2,000 FORFEITURE FOR OBSCENE OR INDECENT
PROGRAMING
Sonderling Broadcasting Corporation,
licensee of WGLD-FM, Oak Park, Ill., has been notified by the FCC of its
apparent liability for forfeiture of $2,000 under the provisions of Section
503(b)(1)(E) of the Communications Act because it violated Section 1464 of
Title 18 of the United States Code by broadcasting obscene or indecent matter
on its "Femme Forum" shows of February 21 and 23, 1973.
Section 1464 provides that anyone
who "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." Under Section 503(b), a forfeiture not to exceed
$1,000 can be assessed for each day on which a violation occurred, with a
maximum of $10,000 in any notice of forfeiture.
At the time of the violations,
WGLD-FM was using a "topless radio" format in which an announcer
takes calls from the audience and discusses mainly sexual subjects. The
February 21 program dealt with the topic of "How do you keep your sex life
alive?" and some callers suggested oral sex. The February 23 program
was about oral sex and consisted of explicit exchanges in which female callers
spoke of their oral sex experiences.
The Commission, recognizing the
licensee's right to present provocative or unpopular programming which might
offend some listeners, emphasized that it was not saying that sex is a forbidden
subject on the broadcast medium. It said that it was confronted with a
show where the interviewer could readily moderate his handling of the subject
matter so as to conform to the basic statutory standards.
The Commission said that in the past
it had "scrupulously refused" to decide which programs were
consistent with the public interest and which were not, even when confronted
with the most distasteful programming, because that would be "flagrant
censorship." To try to rule off the airwaves the "coarse or the
vulgar" would also be an effort at [*920] censorship, but here
the standards are strictly defined by law, the Commission said, and the
broadcaster must shun the "obscene or indecent."
The Commission pointed out that the
Supreme Court has defined obscenity in the following terms: "Whether to
the average person, applying contemporary community standards, the dominant
theme of the material taken as a whole appeals to prurient interest." The
Court has also ruled that it must be established that the dominant theme of the
material appeals to a prurient interest in sex; that the material is patently
offensive because it affronts contemporary community standards relating to the
description or representation of sexual matters; and that the material is
utterly without redeeming social value.
In determining whether broadcast
material meets the statutory test, the special quality of the medium must be
taken into account, the Commission said. Thus while the criteria for
judging whether some broadcast material is absence or indecent remains the
same, it is crucial, the Commission stressed, that these criteria are being
applied in the broadcast field, "a medium designed to be received and
sampled by millions in their homes, cars, on outings, or even as they walk the
streets with transistor radio to the ear, without regard to age, background or
degree of sophistication."
If broadcasters can engage in
commercial exploitation of obscene or indecent material, the Commission noted,
an increasing number will do so for competitive reasons. It said that
"topless radio" formats like "Femme Forum" are designed to
garner large audiences through titillating sexual discussions, that the
explicit material used in the two February shows "is patently offensive to
community standards for broadcast matter," that the dominant theme was
clearly an appeal to prurient interest because the announcer coaxed responses
that were designed to arouse sexual feelings, and that there was no redeeming
social value because this was not a serious discussion of sexual matters,
"but rather titillating, pandering exploitation of sexual materials."
The Commission said that as in the
1970 WUHY-FM case (the licensee was assessed a $100 forfeiture for indecent
programming because of an interviewer's use of various "patently
offensive" words) there is an alternative ground for action.
Pointing out that in WUHY-FM its construction of the term "indecent"
as used in 18 U.S.C. 1464, constituted a different standard from "obscene"
in the broadcast field, the Commission found that even if the "Femme
Forum" material did not appeal to a prurient interest, it warrants the
assessment of a forfeiture because it is within the statutory prohibition
against the broadcast of indecent matter.
The Commission said as in WUHY-FM it
had a duty to act to prevent the erosion of the country's broadcast
system. It said that the $2,000 forfeiture is appropriate for willful or
repeated violations, and while there has been no judicial consideration of
obscenity or indecency in this specific broadcast situation "we are not
fashioning any new theory here."
The Commission said that it is not
its function to impose upon broadcasters and listeners its personal standards
of good taste, but neither is it its function to ignore the presentation of
programming [*921] that violates a criminal statute. "To
shirk our responsibility would be to ignore the clear statutory mandate of
Congress and to drastically curtail the usefulness of radio for millions of
people," the Commission declared.
The Commission said that it
recognized that "we are not the final arbiters" in this sensitive
field, therefore, "we welcome and urge judicial consideration of our
action."
Sonderling has 30 days to either pay
or contest the forfeiture.
In a dissenting statement,
Commissioner Nicholas Johnson contended that the majority of the Commission was
engaging in a form of censorship "by penalizing a station because of the
content of one of its programs." He said that this conduct was
"arbitrary... unwise... and unconstitutional."
Noting that he found portions of the
programs transcribed in the Commission's opinion "extremely
distasteful," Commissioner Johnson pointed out that he had refused to join
in a tape monitoring session because he did not believe the Commission
"should sit as a program review committee -- imposing its tastes upon both
broadcasters and the American public." He said the only issue for him, as
a government official, was freedom of speech.
Commissioner Johnson noted the
difficulties involved in defining "obscenity" and
"indecency." Reviewing court cases on the subject, he argued that the
majority failed to apply properly the legal standards of previous court
rulings. He said that courts, not administrative agencies, should act in
matters where a determination must be mace between "social demands and the
individual's most precious right to free expression."
Commissioner Johnson concluded that
"only the Justice Department should be allowed to initiate proceedings of
this nature, and only the courts should be allowed to resolve the ultimate
question whether a given program is or is not protected by the First Amendment.
DISSENT:
DISSENTING OPINION OF COMMISSIONER
NICHOLAS JOHNSON
During my seven years at the Federal
Communications Commission, I have repeatedly urged my colleagues to impose
limited affirmative programming responsibilities on the commercial broadcasting
industry. The "fairness doctrine," for example, demands that
broadcasters present all sides of controversial issues of public
importance. See, e.g., my dissent to Chevron Remand: Fairness Doctrine
Ruling, 37 F.C.C. 2d 528 at 533 (1972). I have argued that the broadcasting
industry's policy of refusing access both to members of the public and to their
elected representatives contravenes both the public interest and the
Constitution. See, e.g., my dissents to Business Executives Move for
Vietnam Peace, 25 F.C.C. 2d 242 at 299 (1970), rev'd, 450 F. 2d 642 (D.C. Cir.
1971), and Availability of Network Programming Time to Members of Congress,
F.C.C. 72-1194, -- F.C.C. 2d -- (1972). And I have urged my colleagues to
inject minimum precision into the statutory requirement that broadcasters serve
the "public interest, convenience or necessity" by demanding that
these broadcasters [*922] present a minimum amount of news and
public affairs programming. See, e.g., Oklahoma Renewals, 14 F.C.C. 2d 1
(1968).
The F.C.C. majority has steadfastly
declined to impose such affirmative programming obligations upon the commercial
broadcasting industry, contending that such requirements would approach
censorship and preferring, instead, to leave programming decisions to the
broadcaster's "discretion."
Thought I have argued that this
Commission should impose affirmative programming obligations upon broadcasters
-- obligations of the sort upheld by the Supreme Court in the face of
Constitutional attack, see Red Lion Broadcasting Co. v. F.C.C., 395 U.S 376
(1969) -- I have never urged my colleagues to engage in program censorship, to
outlaw specific kinds of programming. For, whereas affirmative
obligations tend to enhance the public interest by fostering program diversity
and coverage of all sides of controversial issues, see Red Lion, supra,
negative sanctions in the form of outright programming bans only tend to reduce
such diversity, thus raising the very specter of censorship which the F.C.C.
majority has always claimed to fear.
Today, that majority engages in
precisely this form of censorship by penalizing a station because of the
content of one of its programs. The majority's conduct is not merely
arbitrary and unwise as a matter of public policy; I believe it also to be
unconstitutional. I dissent.
Station WGLD-FM, Oak Park, Illinois,
broadcasts a talk show called "Femme Forum" -- a program wherein an
announcer talks over telephone with women callers about a variety of subjects,
including sex. Prior to its decision to issue a Notice of Apparent
Liability Against Sonderling Broadcasting Co., WGLD's licensee, the F.C.C. majority
listened, in closed session, to a tape a selected excerpts from these talk
shows, I declined to participate in that monitoring session because, as I shall
explain, I do not believe that this Commission should sit as a program review
committee -- imposing its tastes upon both broadcasters and the American
public. I personally find those portions of the tape which are repeated
in the majority's opinion to be extremely distasteful. I would not engage
in such conversation privately or publicly, let alone over a radio
station. Were I a station manager I would endeavor to keep it off the
air. But those are not the choices or roles before me. The only
issue before me is whether I should use my position as a U.S. Government
official to bring the full power of that government to bear to "make a law
abridging the freedom of speech" -- to borrow from the language of the
Constitution's First Amendment.
The majority holds, in essence, that
the program segments of "Femme Forum" they have taken out of context
are obscene. Even if not obscene, adds the Commission, the programming is
"indecent." In what appears to be a subtle effort to pass the buck,
the majority contends that Congress, through the Communications Act of 1934,
has directed the Commission to impose fines upon broadcasters who have engaged
in obscene or indecent programming. Whether the Communications Act
demands that the F.C.C. act as it has today is not clear. If that statute
does so empower and direct the F.C.C., then the Constitutional infirmities
inherent in today's decision are attributable [*923] to both the
Congress and the Commission. That Congress must share the blame for
today's decision is made more clear by the fact that the Commission majority
very probably would not have acted as it has absent severe Congressional
pressure to do something in this area.
My difficulties with the majority's
reasoning are many.
First, though "obscene"
expression is not protected by the First Amendment, see Roth v. United States,
354 U.S. 476 (1957), expression which falls outside the obscenity category is,
except in rare cases which I shall discuss, not subject to governmental
regulation. The majority admits that "indecent" expression is
something less than obscenity, yet the majority nevertheless asserts that it
may outlaw indecent expression.
Aside from constituting a blatant
attempt to regulate expression which is protected by the First Amendment, the
majority's approach poses additional problems because nowhere does the majority
come forth with a precise definition of its concept of "indecency."
The majority asserts, rather, that indecent programming is programming that
meets all the indicia of obscene programming except that it need not appeal to
the prurient interest. The "definition" of obscenity is,
itself, very vague and ad hoc. And if obscenity is so vaguely defined,
then the "indecency" variant promulgated by the majority is a
hopeless blur.
In such circumstances, broadcasters,
perforce kept in the dark as to the types of programs they can and cannot
broadcast, will obviously steer as wide of the "indecency" mark as
possible, declining to carry programming which might meet the majority's
amorphous "test" as well as programming which is obviously protected
by the Constitution. In short, the vagueness problem inherent in the
majority's approach is accompanied, as it always is in the First Amendment
area, by the vice of unconstitutional over breadth. See, e.g., my
dissenting statement in WUHY-FM, 24 F.C.C. 2d 408 at 422 (1970); see also Note,
Conspiracy and the First Amendment, 79 Yale L.J. 872 at 884-886 (1970).
Second, the majority holds that
while "Femme Forum" involved indecent programming, it also involved
obscene programming -- programming which the majority believes to be clearly
beyond the protections afforded by the First Amendment. There are
numerous problems with this aspect of the majority's opinion.
The majority claims to define
"obscenity" in the manner set forth by the Supreme Court in Roth,
supra, and Ginzburg v. United States, 383 U.S. 463 (1966). The majority then
suggests that this definition must somehow be molded to meet the peculiar
nature of the broadcasting medium. In effect, the majority appears to
argue that expression which would not be considered obscene if contained in a
book becomes obscene on television or radio because of the
"obtrusive" nature of the medium. The majority thus presents
broadcasters with a "continuum definition" of obscenity; with this
approach I cannot agree.
If there exists a definable category
of expression called "obscenity," that category does not expand as
the medium through which it is communicated changes. While the Supreme
Court has suggested that some [*924] forms of sexually explicit,
but non-obscene, expression might be subject to regulation if that expression
should assault an individual's rights to privacy, see, e.g., Redrup v. New
York, 386 U.S. 757 (1967); Cohen v. California, 403 U.S. 15 (19 ), the Court
has also made clear that such privacy rights are not "assaulted"
unless the expression is communicated in a manner "so obtrusive as to make
it impossible for an unwilling individual to avoid exposure to it."
Redrup, supra at 769. First Amendment rights may not be abridged, then,
simply because some persons may find offensive forms of expression which they
could readily avoid.
On this theory, assuming for the
moment that the F.C.C. should be engaged in this sort of programming regulation
at all, sexually explicit, but nevertheless non-obscene material could be regulated
only if the broadcast medium makes it impossible for an unwilling individual to
avoid exposure to the particular expression. That is not the case when
the offending speech is contained in a single, clearly identified program which
may be accepted or avoided in its entirety.
I believe the F.C.C. has no business
regulating non-obscene material. I see great dangers in allowing this
Commission to regulate even material which might properly be deemed
"obscene." But in this instance the majority even failed properly to
apply the Roth test to the facts before us, and thus erred in concluding that
the instant programming material was obscene. Roth demands, inter alia,
that the expression, taken as a whole, be patently offensive by contemporary
community standards. In the instant case, the majority focuses only on
portions of the challenged program, makes absolutely no attempt to delineate
the relevant "community" in question, and makes no effort whatsoever
to determine the nature of the relevant community's standards. As a
result, it seems rather bizarre for the majority to conclude that the
"Femme Forum," taken as a whole, is patently offensive to an
undefined community with unknown standards when it knows nothing of (1) the
whole program, (2) the community, or (3) its standards.
And, indeed, such a conclusion
becomes even more remarkable given the fact that WGLD-FM's "Femme
Forum" has, according to at least one television columnist, become the top
rated radio program in the Chicago area. See Clarence Petersen's column
in the Chicago Tribune, March 12, 1973. Though a growing number of
citizens are obviously not offended by this sort of programming, the F.C.C.
majority has apparently determined that they ought to be.
Surprisingly, Mr. Petersen reports
that far from appealing to anybody's prurient interests, "Femme
Forum" presents "lots of banal nonsense, lots of common sense, most
of it so common as to be a bore." Mr. Petersen adds: "At times Moore
[the show's announcer], former record promoter and disk jockey, asked
challenging questions. At other times his questions indicated that he had
not even been paying attention to what the women were saying. I suspect
that even he was getting [*925] bored from time to time." And
so it appears that the F.C.C. majority has vented its spleen not against
"titillating" (their favorite term) sexual material capable of
arousing one's prurient interest, but, rather, against mundane -- even bland --
discussions that might offend some, strike others as bizarre, but which clearly
appeal to a growing audience of listeners who are, I suppose, curious.
[SEE GRAPHIC IN ORIGINAL]
[*926] Finally, while I
do not believe that the F.C.C. may, constitutionally, censor non-obscene
expression, and while the majority could not properly conclude on the record
before it that the instant expression was obscene, I also have great doubts
about whether this Commission should take action even in a case where
programming might be termed obscene under the appropriate Constructional test.
Because the term
"obscenity" is so elusive, so incapable of precise delineation, and
because governmental regulation of so amorphous a category of expression
creates a tension between social demands and the individual's most precious
right to free expression, I believe the courts -- and not administrative
agencies -- are more competent to determine whether particular forms of
expression fall within the unprotected category. While I certainly do not
condone programming such as that before us, I am nevertheless extremely
reluctant to use my power as a federal official to impose my tastes upon
anyone, let alone upon an entire nation. The F.C.C. majority, however,
does not entertain such hesitations, preferring instead to sit as an omniscient
programming review board, allegedly capable of deciding what is and is not good
for the American public to see and hear.
The dangers in such an approach are
obvious. But they are amplified ten-fold when the F.C.C. -- the agency
which possesses the power to grant and deny all broadcast licenses -- plays the
Big Brother role. For it seems patently clear that any F.C.C.
pronouncement against a particular kind of programming will cast a pall over
the entire broadcasting industry -- not so much because these broadcasters fear
the imposition of fines, but, rather, because they fear the potential loss of
their highly profitable broadcast licenses. As a result, F.C.C.
regulation of obscenity is dangerous not only because this agency is, as the
instant case painfully reveals, incompetent to deal properly with the problem,
but also because such regulation creates a "chilling effect" of
enormous proportions on all forms of broadcast expression.
In a real sense, then F.C.C.
regulation in this area is akin to the imposition of prior restraints on
expression absent the sorts of judicial scrutiny and due process protections
which the Supreme Court has held to be necessary in this highly sensitive
area. See, e.g., Freedman v. Maryland, 380 U.S. 51 (1965); Bantam Books
v. Sullivan, 372 U.S. 58 (1963). In my view, only the Justice Department should
be allowed to initiate proceedings of this nature, and only the courts should
be allowed to resolve the ultimate question whether a given program is or is
not protected by the First Amendment.
Under the majority's approach,
however, a judicial determination will become necessary only if Sonderling
appeals. In the meantime, extensive damage will have already been done to
the First Amendment. F.C.C. action in this area should be preceded, and not
followed, by judicial review. For it is, after all, the courts which have
enunciated the "obscenity" doctrine, it is the courts which are most
competent to apply that particularly judicial doctrine, and the F.C.C., as
today's decision reveals so well, is in no way comparable to a court.
I dissent.
[*927] CONCURRING STATEMENT OF COMMISSIONER
BENJAMIN L. HOOKS
In this action, the Commission has
determined to assess a statutory forfeiture against a broadcaster on the basis
of its transmission of sex-oriented talk shows about which this agency has
received an onslaught of complaints. My concurrence is short and obvious.
The precarious balance between First
Amendment rights and legitimate governmental review of expression in the public
interest rests on a finely honed fulcrum. The preponderant Constitutional
tilt towards the widest possible liberty in this area is weighted by nothing
less than the strength of freedom.
But, freedom of speech is a
multi-edged sword. Brandishing its right to voice grievances, the public
-- the real proprietor of the national airwaves -- and the public's elected
representatives have vociferously spoken out to this Commission against
broadcast programming which it considers disgraceful, of little speech value,
and wasteful of the limited radio spectrum. Indeed, contingent on a
definitive court interpretation, the matter complained of could be in conflict
with the federal statute prohibiting the broadcast of obscene and indecent
material. (18 U.S.C. § 1464) As public servants, the Commission,
while cognizant and rueful of any stigma of censorship, has a legal and moral
obligation to be responsive to the causes of public outcry and a duty to act to
the extent permitted by law.
Mindful of all of these
circumstances, yet distressed by the nature of the subject with which we deal,
I find justifiable the limited action taken here for the reasons amply set
forth in the majority opinion. n1
n1 Letter to Sonderling Broadcasting
Corporation, FCC 2d , (FCC 73-401,
April 11, 1973).