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


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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.