Imagine a world where the boundaries of free speech are drawn not by the merits of the message, but by the shifting sands of societal norms and subjective morality. It is the precarious terrain copyright owners must navigate when their creative works are subjected to restrictions based on “contemporary community standards.” These restrictions, particularly in the context of public performance rights, illustrate a growing tension between First Amendment freedoms and government-imposed broadcasting regulations.

The First Amendment of the United States Constitution protects individuals from government regulation based on the content of speech.[1] The foundation of this rule is that the government must maintain a neutral position in “the marketplace of ideas.”[2] At the same time, certain types of speech are afforded little or no protection under the First Amendment, such as incitement to violence, obscenity, child pornography, libel against public officials, or genuine threats. The conflict between the importance and value of uttered or written words and the government’s motivation behind suppressing them has permeated various areas of law. Consequently, decisions addressing what categories of speech are entitled to protection under the First Amendment have reached the copyright field of law.

This article contends that the Supreme Court’s decision in FCC v. Pacifica Found established an unworkable precedent for copyright owners by permitting restrictions on public performance rights rooted in a vague and subjective interpretation of “indecency.”[3] Such restrictions burden creators, broadcasters, and society by curtailing artistic freedom, stifling innovation, and restricting public access to a broad spectrum of ideas and cultural expressions.

One of the most influential cases in this area is the Supreme Court’s decision in Pacifica, which addressed the government’s limitations on copyrighted content broadcast to the public.[4] The Pacifica case was a unique application of First Amendment precedent that yielded a new rule negatively impacting copyright owners’ public performance rights. This rule imposes an undue burden, making it difficult for creators to predict whether their work might be deemed “indecent” and subjected to broadcasting restrictions.

Under the Copyright Act, a copyright owner has five exclusive rights: reproduction, adaptation, distribution, public performance, and public display.[5] Under Article I, Section 8 of the U.S. Constitution, Congress has the power “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[6] In furtherance of this power, Congress passed copyright protections, culminating in adopting the Digital Performance Right in Sound Recording Act in 1995 (“The Act”).[7] The Act grants copyright holders of sound recordings exclusive rights to public performance through digital audio transmission.[8] At the same time, the Communications Act of 1934 subjects broadcasters to an array of conditions and rules that control radio transmission channels.[9]

Under 18 U.S.C. § 1464, the law prohibits broadcasters from disseminating any “obscene, indecent, or profane language” through radio communication.”[10] The Federal Communications Commission (“FCC”) enforces the indecency ban, including revoking or denying license renewals.[11] Consequently, the FCC interprets the statute and determines whether the content is indecent within the meaning of § 1464.[12]

The United States Supreme Court addressed the scope and limits of First Amendment protections in several landmark cases that delineated the limits of free speech, censorship, and the rights of expression. For example, in Roth v. United States, the Supreme Court examined whether the government can prohibit the sale or transfer of obscene materials through the mail.[13]  Ultimately, the Court held that obscene materials cannot be protected under the First Amendment because their content is “offensive to contemporary moral standards.”[14]

However, the Court also found that if the speech is deemed offensive based on the speaker’s opinion, “that consequence is a reason for according it constitutional protection.”[15] In Miller v. California, the Supreme Court applied a three-part test for obscenity.[16] To determine whether material is obscene, the trier of fact must establish: (1) whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.[17] The Supreme Court decisions in Roth and Miller opened a true Pandora’s box for copyright owners attempting to exercise their exclusive right to control their work’s dissemination.

In the FCC v. Pacifica decision, the United States Supreme Court examined whether the First Amendment protects a radio broadcast that is indecent but not obscene.[18] The case arose when George Carlin’s satirical twelve-minute monologue featuring prohibited language prompted a complaint from a listener who heard the broadcast with his underage son.[19] The [FCC] did not impose formal sanctions, but it did state that the order would be ‘associated with the station’s license file, and in the event that subsequent complaints are received, the [FCC] will then decide whether it should utilize any of the available sanctions it has been granted by Congress.’”[20]

In justifying its ability to regulate the broadcast, the FCC cited two statutes: 18 U.S.C. § 1464, which forbade “any obscene, indecent, or profane language through radio communications,” and 47 U.S.C. § 303(g), which required the FCC to “encourage the larger and more effective use of radio in the public interest.”[21] After concluding that the language in the broadcast was indecent, the FCC issued a declaratory order and determined that it could have administratively sanctioned Pacifica.[22] Furthermore, the FCC stated in its memorandum opinion that it intended to clarify the community standards it would consider given the increasing number of complaints.[23] Although Pacifica argued that under U.S.C. § 1464, the language was not indecent because it lacked prurient appeal, the Court concluded that the standard definition of “indecent” only refers to “nonconformance with accepted standards of morality.”[24]

In reaching its conclusion, the Court found that the words uttered by Carlin offended for the same reasons that obscenity offends, even though the monologue attempted to emphasize society’s attitudes toward them, ultimately presenting a point of view.[25] In footnote 22, the Court states: “The monologue does present a point of view; it attempts to show that the words it uses are ‘harmless’ and that our attitudes toward them are ‘essentially silly. […] The belief that these words are harmless does not necessarily confer a First Amendment privilege to use them while proselytizing, just as the conviction that obscenity is harmless does not license one to communicate that conviction by the indiscriminate distribution of an obscene leaflet.”[26] Consequently, in the Court’s view, this type of communication received the most limited First Amendment protection because of its ability to intrude on privacy in the home and because it is “uniquely accessible to children.”[27]

In Pacifica, the Supreme Court held that “the normal definition of ‘indecent’ merely

refers to nonconformance with accepted standards of morality.”[28] The Pacifica decision marked the first instance in which the FCC used a definition of indecent speech, which had remained unchanged since then.[29] According to the decision, indecent speech is the “language that describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities, and organs, at times of the day when there is a reasonable risk that children may be in the audience.”[30] After applying the Miller test, the Supreme Court considered only the offensiveness element, which allowed it to impose a harsher standard for protected indecent speech than unprotected obscene speech.[31]

However, the Pacifica decision does not align with other Supreme Court cases that protect offensive speech. For example, in Cohen v. California, the Supreme Court considered whether the defendant’s wearing a jacket with the words “F*** the Draft” in a courthouse corridor constituted protected speech.[32] The Supreme Court ruled that the First Amendment protects offensive speech to safeguard public discourse.[33] The Court, accordingly, held that the defendant’s conviction for wearing the jacket violated the First Amendment.^[34]

The protection of disagreeable and challenging ideas is necessary in a growing society. Therefore, regulations restricting copyright owners’ public performance rights when content is deemed offensive based on undefined “acceptable standards of morality” conflict with previous precedents protecting offensive speech.[35]

A morality-based restriction without clear guidelines forces copyright owners to navigate significant challenges in complying with the standard, as they cannot predict all the environments where others will witness or hear the performance. Copyrightable creative works—such as stand-up acts, slam poetry, audio plays, or concerts—can be broadcast via radio and contribute to the “marketplace of ideas.” These artistic expressions spark social movements, support activism, and foster organic growth in diverse communities. Censoring such works under the Pacifica standard, which deems content indecent based on “accepted standards of morality,” stifles progress by preventing changes in values or ideas.

During the oral argument in front of the Supreme Court, the FCC argued that the broadcast depicted “sexual and excretory organs and activities in a manner patently offensive by its community’s contemporary standards in the early afternoon when children were in the audience.”[36] However, the “community contemporary standards” were never defined in the Pacifica decision but was addressed by Justice Marshall during oral arguments when he questioned the FCC on how one person complaining to the FCC can represent an entire community.[37] Even before the Pacifica decision, the FCC had difficulty citing authority for its assertions. For example, after the FCC issued a Notice of Apparent Liability for violating § 1464 to WUHY-FM, a noncommercial station in Philadelphia, Pennsylvania, the FCC concluded without citing any precedent that the standard should be that the material broadcasted is: (a) patently offensive by community standards; and (b) is utterly without redeeming social value.[38] The question remains: What contemporary community standards will the FCC or a court apply to determine whether content cannot enjoy the protection of the First Amendment even when the Miller test is not satisfied? Since contemporary community standards are constantly subject to change, a copyright owner who contracts their rights to public performance will be uncertain about how the FCC will apply the Pacifica decision and ultimately censor her content.

In the case A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Atty. Gen. of Com. of Mass, the Supreme Court looked at whether a book correctly applied the Roth definition of obscenity.^[39] The Supreme Court specifically analyzed whether the lower court misinterpreted the obscenity test’s social value criterion, which the Court later adopted in Miller v. United States.^[40] The book at issue, Memoirs of a Woman of Pleasure, written by John Cleland, which recounted the life of a prostitute, was “adjudged obscene in a proceeding that put on trial the book itself, and not its publisher or distributor.”^[41] The Supreme Court found that “a book cannot be proscribed unless it was found to be utterly without social redeeming value.”^[42]

Moreover, the Court determined that examining all possible usage of the book reveals even a fraction of literary and historical value. Therefore, the book does have socially redeeming value.^[43] Adopting the language from Ginzburg v. United States, the Court stated that a book can lack redeeming social importance if it is exploited solely for its prurient appeal, excluding other values.[44] Justice Brennan raised this idea of courts assigning social value or its absence in his dissent.[45] He argued that the principal concern involved courts granting speech protection based on the social value they attribute to it.[46] Expanding on the Pacifica rationale, Justice Brennan argues that the new FCC standard would lead to censorship of “a myriad of literary works, novels, poems, and plays by the likes of Shakespeare, Joyce, Hemingway, Ben Jonson, Henry Fielding, Robert Burns, and Chaucer,” as well as particular portions of the Bible.[47]

Justice Brennan circulated a draft dissent to the FCC v. Pacifica decision in which he stated that he found: “the Court’s misapplication of fundamental First Amendment principles so patent, and its attempt to impose its sadly myopic notions of propriety on the whole of the American people so misguided, that [he is] unable to remain silent.”[48] Moreover, Justice Brennan addresses Justice Steven’s claim that modifying the work to avoid indecent language would only affect the form of the substance of the communication.[49] Justice Brenan claims it is erroneous to address this point because “[a] given word may have a unique capacity to capsule an idea, evoke an emotion, or conjure up an image.”[50]

The mere essence of copyrighted work is to transmit ideas and instill in the listeners certain emotions along with transmitting a specific message. Forcing a copyright owner to modify their creation to fit a standard that does not align with the previous Supreme Court decisions regulating obscene speech diminishes the public’s ability to benefit from being exposed to “cultural pluralism,” as Justice Brennan states. Censoring the broadcasters under an unclear and vague standard allows the Court to promote the idea that it can censor communications solely because of the words they contain, regardless of whether or not a copyrighted work can survive the Miller test for obscenity. In a way, the Supreme Court indirectly allowed Puritan values to influence its decision in a nation composed of “subcultures” with different values.

Ultimately, as Justice Brennan stated, the value of the work comes from its ability to convey an idea and, ideally, instill progress. To achieve such goals, the creator must carefully craft the artistic piece using the perfect combination of words, organization, or tone. If successful, such works of art will have enriched a nation’s culture and subcultures. The Supreme Court had previously addressed this concern in Cohen v. California,where it emphasized that the government’s authority to restrict speech as a result of balancing the privacy interests of others depends on determining whether the intrusion is fundamentally intolerable.[51] However, the Court also found that “any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.”[52]  The Pacifica decision does not align with the previous Cohen decision on protecting speech that others could find offensive. Although the Court tried to distinguish the cases based on the privacy interest a broadcast listener can have in their home, this argument undermines listeners’ ability to simply turn off the radio.

Unsurprisingly, academia criticized the Pacifica decision. Harvard Law Review’s end-of-term review argued that the new ruling creates a “serious setback for those who prize our pluralistic society’s commitment to the free exchange of ideas.”[53] The Pacifica decision created a ripple effect for copyright owners entering agreements to make their work public through broadcasts and society as a whole, which now faces restrictions on engaging in its critical process. By reducing the intellectual marketplace pool of ideas, the public must only consume information that abides by contemporary community standards.

Copyright owners can enter into licensing agreements to have their content on the radio or television. Under 17 U.S.C. § 106, a performance license is required to make the copyrighted work accessible to the public, affecting the copyright owner’s exclusive right to perform.[54] Another statute governing the licensing of copyrighted work is the Digital Millennium Copyright Act of 1998.[55] This act allows both record companies and artists to collect royalty fees on broadcasts of their work.[56] The U.S. Copyright Office determines the statutory rates and schedules reviews and renewals for all royalty rates every two years.[57] A statutory rate applies where copyright law requires compulsory licenses because they allow others to use the copyrighted work without the owner’s permission if they pay the set rate. While statutory rates primarily cover music because of its extensive use in media, other works, such as stand-up comedy or film, are usually licensed individually and subjected to negotiations. In these cases, creators negotiate directly with either distributors or broadcasters.

The Pacifica standard creates an unstable negotiating environment for copyright owners who do not fall in the statutory rate category. The subjectivity of the Supreme Court rule on broadcasted content forces copyright owners to guess whether their work will be categorized as indecent when applied to “contemporary community standards.” Radio broadcasts are unique in terms of public performance rights because, unlike a stage performer, neither the creator nor the broadcaster can account for each household or individual who can listen in. Since the broadcasters will have to bear the risk of the censorship set by the FCC, they might demand editing flexibility, which can ultimately diminish the value of the work financially and artistically.

The Supreme Court reviewed the Pacifica test in the more recent case FCC v. Fox TV Stations, where it held that the FCC could treat even isolated (so-called “fleeting”) uses of sexual and excretory words as actionably indecent.[58] One point not addressed in the concurrence but addressed in Justice Breyer’s dissent is the chilling effect on local broadcasting coverage.[59] In his dissent, Justice Breyer states that the practical impact of such a strict interpretation is that smaller broadcasting stations will resort to cutting back on their coverage, especially public events, to avoid broadcasting “fleeting expletives.”[60] Naturally, a broadcaster can shift this burden and allocate this cost during negotiations with a content creator. As a result, broadcasters can force copyright owners to engage in complex negotiations. Suppose a copyright owner is unwilling to modify their work. In that case, other than not publicly performing, the remaining alternative is to enter into a contract with a lower royalty rate to account for potential censorship. The FCC won’t issue absolute censorship, completely suppressing or prohibiting certain content, speech, or expression, without allowing exceptions or debate. Instead, they limit the broadcasting time of specific content from 10 p.m. to 6 a.m., causing the work to reach fewer members of the public, which will, in turn, affect the revenue and other opportunities from which it can benefit. Still, the question remains whether the right to public performance is severely diminished or even extinguished for a copyright owner who cannot immediately contract to those terms.

In its decision in Pacifica, the Supreme Court emphasized that the FCC may censor broadcasts deemed indecent due to their ability to intrude on individuals both in public and in the privacy of their homes, especially because the broadcasts are accessible to children.[61] The Court also referenced Ginsberg v. New York, where minimal scrutiny upheld a law banning the sale of magazines with nudity to minors.[62] Recently, in Brown v. Entertainment Merchants Association, the Court applied strict scrutiny to a California law restricting the sale of violent video games to minors, concluding that California failed to identify an “actual problem” needing resolution.[63] The Court noted that the video game industry already had a voluntary rating system to inform consumers, and retailers were encouraged to sell or rent games rated for individuals 17 and older only with parental consent.[64]

The most recent case addressing the standard of review is Free Speech Coalition, Inc. v. Paxton. The case concerns a law requiring internet porn sites to verify users are 18 or older.[65] While the government argued the law protected minors, the petitioners contended that Ginsberg did not control because the law impacts both minors and adults.[66] The petitioners further argued that courts typically avoid applying rational-basis review to laws burdening adults’ access to protected speech.[67]

The outcome of the Free Speech Coalition may influence how the Supreme Court revisits the Pacifica standard, especially considering that the FCC imposes similar restrictions on adults’ access to speech. While Pacifica upheld time, place, and manner restrictions, forcing broadcasters to air “indecent” content only between 10 p.m. and 6 a.m. limits broadcasters’ ability to express ideas fully. Similarly, the imposition of warnings throughout broadcasts appears unnecessarily broad. Since the FCC’s actions burden adults’ access to speech, strict scrutiny should apply to determine whether the FCC can censor content.

In conclusion, The Pacifica decision created a unique standard for broadcasters and copyright owners by allowing the FCC to censor speech that could survive the Miller test for obscenity. The unclear standard creates hurdles not only through the burden it imposes on artists but also because of its practical effect on broadcasting negotiations. Copyright owners and society feel the negative consequences, as society is now restricted from engaging in its critical process. The Pacifica standard undermines artistic integrity and societal progress by forcing creators to modify their work to fit the “contemporary standards of morality” mold.

Andreea Livanu was born and raised in Romania, where she spent two years in law school before pursuing a bachelor’s degree in the United States. In January 2018, she enrolled at BYU-Idaho, earning a degree in international studies with a minor in French. Before entering law school, Andreea gained practical experience as a paralegal at a criminal defense and personal injury firm. Throughout law school, she developed a keen interest in business law and intellectual property, ultimately choosing a business law emphasis with an IP track. Andreea enjoys biking and camping in her free time outside her academic and professional pursuits.

[1]  U.S. Const. amend. I.

[2] F.C.C. v. Pacifica Found., 438 U.S. 726, 745–46 (1978).

[3] Id. at 736.

[4] Id.

[5] 17 U.S.C. §§ 106, 106(4), 106(6).

[6] U.S. Const. Art. I, § 8, cl. 8.

[7] James A. Johnson, Thou Shalt Not Steal: A Primer on Music Licensing, 80 N.Y. St. B.J. 23 (June 2008).

[8] Id.

[9] F.C.C. v. Fox TV Stations, Inc., 556 U.S. 502, 505 (2009).

[10] Id. at 506.

[11] Id.

[12] Id.

[13] Roth v. U.S., 354 U.S. 476, 481 (1957).

[14] Id. at 492.

[15]F.C.C. v. Pacifica Found., 438 U.S. 726, 745 (1978).

[16] Miller v. California, 413 U.S. 15, 24 (1973).

[17] Id.

[18] F.C.C. v. Pacifica Found at 729.

[19] Id.

[20] Id. at 730 (quoting FCC. order).

[21] Id. at 731.

[22] Id.  at 730.

[23] Id.

[24]  Id. at 740; see Angela J. Campbell, Pacifica Reconsidered: Implications for the Current Controversy over Broadcast Indecency, 63 Fed. Comm. L.J. 195, 232 (2010).

[25] F.C.C. v. Pacifica Found at 746, 730.

[26] Id. at 746.

[27] Id.

[28] Id. at 740.

[29] In the Matter of a Citizen’s Compl. Against Pacifica Found. Station WBA (Fm), New York, N.Y. Declaratory Or., 56 F.C.C. 2d 94, 98 (F.C.C. 1975) see also Angela J. Campbell, Pacifica Reconsidered: Implications for the Current Controversy over Broadcast Indecency, 63 Fed. Commun. L.J. 195, 246 (2010).

[30] Id.

[31] Angela J. Campbell, Pacifica Reconsidered: Implications for the Current Controversy over Broadcast Indecency, 63 Fed. Commun. L.J. 195, 246 (2010).

[32] Cohen v. California, 403 U.S. 15, 16 (1971).

[33] Id. at 25.

[34] Id. at 26.

[35] F.C.C. v. Pacifica Found at 727.

[36] Angela J. Campbell, Pacifica Reconsidered: Implications for the Current Controversy over Broadcast Indecency, 63 Fed. Commun. L.J. 195, 214 (2010).

[37] Id. at 228.

[38] In Re Wuhy-Fm, E. Educ. Radio, 4548 Mkt. St., Philadelphia, Pa., 24 F.C.C.2d 408, 412 (F.C.C. 1970) See also Angela J. Campbell, Pacifica Reconsidered: Implications for the Current Controversy over Broadcast Indecency, 63 Fed. Commun. L.J. 195, 199 (2010) (discussing the enforcement of Section 1464 prior to Pacifica).

[39] A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Atty. Gen. of Com. of Mass., 383 U.S. 413, 418 (1966).

[40] Id. at 418.

[41] Id.

[42] Id.

[43] Id. at 421.

[44] Id. at 420.

[45] F.C.C. v. Pacifica Found at 763.

[46] Id.

[47] Id.at 771.

[48] Angela J. Campbell, Pacifica Reconsidered: Implications for the Current Controversy over Broadcast Indecency, 63 Fed. Commun. L.J. 195, 239 (2010).

[49] Id.

[50] Id.

[51] Cohen v. California, 403 U.S. 15, 21 (1971).

[52] F.C.C. v. Pacifica Found. at 764.

[53] The Supreme Court 1977 Term, 92 Harv. L. Rev. 57, 157-162 (1978).

[54] James A. Johnson, Thou Shalt Not Steal: A Primer on Music Licensing, 80 N.Y. St. B.J. 23 (June 2008).

[55] Id.

[56] Id.

[57] Id.

[58] F.C.C. v. Fox TV Stations, Inc., 556 U.S. 502, 517 (2009).

[59] Id.

[60] Id.

[61] F.C.C. v. Pacifica Found at 748-49.

[62] Ginsberg v. State of N. Y., 390 U.S. 629, 641 (1968).

[63] Brown v. Ent. Merchants Ass’n, 564 U.S. 786, 786-99 (2011).

[64] Id. at 803.

[65] Brief for Respondent at 11, Free Speech Coalition v. Paxton,No. 23-1122 (U.S.).

[66] Id. at 17-18.

[67] Id. at 20.