# F.C.C. v. Pacifica Foundation/Dissent Stewart

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Powell
* Dissenting Opinions Brennan Stewart
Mr. Justice STEWART, with whom Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice MARSHALL join, dissenting.
The Court today recognizes the wise admonition that we should “avoid the unnecessary decision of [constitutional] issues.” Ante, at 3033. But it disregards one important application of this salutary principle-the need to construe an Act of Congress so as to avoid, if possible, passing upon its constitutionality. It is apparent that the constitutional questions raised by the order of the Commission in this case are substantial. Before deciding them, we should be certain that it is necessary to do so.
    [p778]
The statute pursuant to which the Commission acted, 18 U.S.C. § 1464 (1976 ed.), makes it a federal offense to utter “any obscene, indecent, or profane language by means of radio communication.” The Commission held, and the Court today agrees, that “indecent” is a broader concept than “obscene” as the latter term was defined in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419, because language can be “indecent” although it has social, political, or artistic value and lacks prurient appeal. 56 F.C.C.2d 94, 97-98. But this construction of § 1464, while perhaps plausible, is by no means compelled. To the contrary, I think that “indecent” should properly be read as meaning no more than “obscene.” **3056 Since the Carlin monologue concededly was not “obscene,” I believe that the Commission lacked statutory authority to ban it. Under this construction of the statute, it is unnecessary to address the difficult and important issue of the Commission's constitutional power to prohibit speech that [p779] would be constitutionally protected outside the context of electronic broadcasting.
This Court has recently decided the meaning of the term “indecent” in a closely related statutory context. In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, the petitioner was convicted of violating 18 U.S.C. § 1461, which prohibits the mailing of “[e]very obscene, lewd, lascivious, indecent, filthy or vile article.” The Court “construe[d] the generic terms in [§ 1461] to be limited to the sort of ‘patently offensive representations or descriptions of that specific “hard core” sexual conduct given as examples in Miller v. California.’ ” 418 U.S., at 114, 94 S.Ct., at 2906, quoting United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130 n. 7, 93 S.Ct. 2665, 2670, 37 L.Ed.2d 500. Thus, the clear holding of Hamling is that “indecent” as used in § 1461 has the same meaning as “obscene” as that term was defined in the Miller case. See also Marks v. United States, 430 U.S. 188, 190, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (18 U.S.C. § 1465).
Nothing requires the conclusion that the word “indecent” has any meaning in § 1464 other than that ascribed to the same word in § 1461. Indeed, although the legislative history is largely silent, such indications as there are support the view that §§ 1461 and 1464 should be construed similarly. The view that “indecent” means no more than “obscene” in § 1461 and similar statutes long antedated Hamling. See United States v. Bennett, 24 Fed.Cas. p. 1093 (No. 14,571) (CC SDNY 1879); Dunlop v. United States, 165 U.S. 486, 500-501, 17 S.Ct. 375, 380, 41 L.Ed. 799; [p780] Manual Enterprises v. Day, 370 U.S. 478, 482-484, 487, 82 S.Ct. 1432, 1434-1435, 1437, 8 L.Ed.2d 639 (opinion of Harlan, J.). And although §§ 1461 and 1464 were originally enacted separately, they were codified together in the Criminal Code of 1948 as part of a chapter entitled “Obscenity.” There is nothing in the legislative history to suggest that Congress intended that the same word in two closely related sections should have different meanings. See H.R.Rep.No.304, 80th Cong., 1st Sess., A104-A106 (1947).
I would hold, therefore, that Congress intended, by using the word “indecent” in § 1464, to prohibit nothing more than obscene speech. Under that reading of the statute, the Commission's order in this case was not authorized, and on that basis I would affirm the judgment of the Court of Appeals.

## Notes

* ↑ See, e.g., Johnson v. Robison, 415 U.S. 361, 366-367, 94 S.Ct. 1160, 1165-1166, 39 L.Ed.2d 389; United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 91 S.Ct. 1400, 1404, 28 L.Ed.2d 822; Rescue Army v. Municipal Court, 331 U.S. 549, 569, 67 S.Ct. 1409, 1419-1420, 91 L.Ed. 1666; Ashwander v. TVA, 297 U.S. 288, 348, 56 S.Ct. 466, 483, 80 L.Ed. 688 (Brandeis, J., concurring); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598.
* ↑ The practice of construing a statute to avoid a constitutional confrontation is followed whenever there is “ ‘a serious doubt’ ” as to the statute's constitutionality. E. g., United States v. Rumely, 345 U.S. 41, 45, 73 S.Ct. 543, 545, 97 L.Ed. 770; Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 107, 72 L.Ed. 206 (opinion of Holmes, J.). Thus, the Court has construed a statute to avoid raising a doubt as to its constitutionality even though the Court later in effect held that the statute, otherwise construed, would have been constitutionally valid. Compare General Motors Corp. v. District of Columbia, 380 U.S. 553, 85 S.Ct. 1156, 14 L.Ed.2d 68, with Moorman Mfg. Co. v. Bair, 437 U.S. 267, 98 S.Ct. 2340, 57 L.Ed.2d 197.
* ↑ The Court properly gives no weight to the Commission's passing reference in its order to 47 U.S.C. § 303(g). Ante, at 3035 n. 13. For one thing, the order clearly rests only upon the Commission's interpretation of the term “indecent” in § 1464; the attempt by the Commission in this Court to assert that § 303(g) was an independent basis for its action must fail. Cf. SEC v. Chenery Corp., 318 U.S. 80, 94-95, 63 S.Ct. 454, 462-463, 87 L.Ed. 626; SEC v. Sloan, 436 U.S. 103, 117-118, 98 S.Ct. 1702, 1711-1712, 56 L.Ed.2d 148. Moreover, the general language of § 303(g) cannot be used to circumvent the terms of a specific statutory mandate such as that of § 1464. “[T]he Commission's power in this respect is limited by the scope of the statute. Unless the [language] involved here [is] illegal under § [1464], the Commission cannot employ the statute to make [it] so by agency action.” FCC v. American Broadcasting Co., 347 U.S. 284, 290, 74 S.Ct. 593, 597, 98 L.Ed. 699.
* ↑ The Commission did not rely on § 1464's prohibition of “profane” language, and it is thus unnecessary to consider the scope of that term.
* ↑ The only Federal Court of Appeals (apart from this case) to consider the question has held that “ ‘obscene’ and ‘indecent’ in § 1464 are to be read as parts of a single proscription, applicable only if the challenged language appeals to the prurient interest.” United States v. Simpson, 561 F.2d 53, 60 (CA7).
* ↑ Section 1464 originated as part of § 29 of the Radio Act of 1927, 44 Stat. 1172, which was re-enacted as § 326 of the Communications Act of 1934, 48 Stat. 1091. Neither the committee reports nor the floor debates contain any discussion of the meaning of “obscene, indecent or profane language.”
* ↑ When the Federal Communications Act was amended in 1968 to prohibit “obscene, lewd, lascivious, filthy, or indecent” telephone calls, 82 Stat. 112, 47 U.S.C. § 223, the FCC itself indicated that it thought this language covered only “obscene” telephone calls. See H.R.Rep.No.1109, 90th Cong., 2d Sess., 7-8 (1968), U.S.Code Cong. & Admin.News 1968, p. 1915.
* ↑ This construction is further supported by the general rule of lenity in construing criminal statutes. See Adamo Wrecking Co. v. United States, 434 U.S. 275, 285, 98 S.Ct. 566, 573, 54 L.Ed.2d 538. The Court's statement that it need not consider the meaning § 1464 would have in a criminal prosecution, ante, at 3035 n. 13, is contrary to settled precedent: “It is true · · · that these are not criminal cases, but it is a criminal statute that we must interpret. There cannot be one construction for the Federal Communications Commission and another for the Department of Justice. If we should give § [1464] the broad construction urged by the Commission, the same construction would likewise apply in criminal cases.” FCC v. American Broadcasting Co., supra, 347 U.S., at 296, 74 S.Ct., at 600.