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HomeMy WebLinkAboutSupreme Court Reporter3026 98 SUPREME COURT REPORTER thorize the creation of national forests sim- ply to serve as wildlife preserves. But it does not follow from this that Congress did not consider wildlife to be part of the forest that it wished to "improve and protect" for future generations. It is inconceivable that Congress envisioned the forests it sought to preserve as including only inanimate com- J 2/ ponents such aslthe timber and flora. In- sofar as the Court holds otherwise, the 55th Congress is maligned and the Nation is the poorer, and I dissent s II Contrary to the Court's intimations, cf. ante, at 3019-3020, I see no inconsistency between holding that the United States im- pliedly reserved the right to instream flows, and what the Court views as the underlying purposes of the 1897 Act. The national forests can regulate the flow of water— which the Court views as "the very purpose for which Congress did create the national forest system," ante, at 3020—only for the benefit of appropriators who are down- stream from the reservation. The reserva- tion of an instream flow is not a consump- tive use; it does not subtract from the amount of water that is available to down- stream appropriators. Reservation of an instream flow therefore would be perfectly consistent with the purposes of the 1897 Act as construed by the Court 6 I do not dwell on this point, however, for the Court's opinion cannot be read as hold- ing that the. United States never reserved instream flows when it set aside national forests under the 1897 Act. The State con- cedes, quite correctly on the Court's own theory, that even in this case "the United J?ss Statesjjs not barred from asserting that rights to minimum instream flows might be 5. No doubt it will be said that the waterflow necessary to maintain the watershed including the forest will be sufficient for the wildlife. This well may be true in most national forests and most situations. But the Court's opinion, as 1 read it, recognizes no reserved authority in the Federal Government to protect wildlife it- self as a part of the forest, and therefore if and when the need for increased waterflow for this purpose arises the Federal Government would be powerless to act. Indeed, upstream appro- 438 U.S. 723 necessary for erosion control or fire protec- tion on the basis of the recognized purposes of watershed management and the mainte- nance of timber." Brief for Respondent 44 n.11. Thus, if the United States proves, in this case or others, that the reservation of instream flows is necessary to fulfill the purposes discerned by the Court, I find nothing in the Court's opinion that bars it from asserting this right. Jw\ 0 KEY NUMBER SYSIE 438 U.S. 726, 57 L.Ed.2d 1073 FEDERAL COMMUNICATIONS COMMISSION, Petitioner, PACIFICA FOUNDATION. No. 77-528. Argued April 18, 19, 1978. Decided July 3, 1978. Rehearing Denied Oct. 2, 1978. See 439 U.S. 883, 99 S.Ct. 227. In response to complaint concerning ra- dio station's broadcast of prerecorded mono- logue, the Federal Communications Com- mission determined that language of mono- logue as broadcast was indecent and was prohibited by statute, and broadcaster sought review. The Court of Appeals, 181 U.S.App.D.C. 132, 556 F.2d 9, reversed, and certiorari was granted. The Supreme Court, Mr. Justice Stevens, held that: (1) focus of review by Supreme Court was on Commission's determination that mono- logue was indecent as broadcast; (2) Com- priators could be allowed to divert so much water that survival of forest wildlife—including even the fish and other life in the streams— would be endangered. 6. It is true that reservation of an instream flow might in some circumstances adversely affect appropriators upstream from the forest. There would be no inconsistency with the 1897 Act, however, for that Act manifestly was not in- tended to benefit upstream appropriators. 438 U.S. 726 mission's action was not F. C. C. v. PACIFICA FOUNDATION Cite as98 S.Ct. 3026 (1978) broadcast, and not on general statements included in Commission's memorandum by which Commission attempted to clarify standards relating to indecent speech. 3027 forbidden "censor- ship" within meaning of section of Commu- nications Act of 1934; (3) Commission prop- erly concluded that indecent language was used in broadcast of monologue, even though monologue was not obscene, and (4) Commission's order did not violate broad- caster's First Amendment rights. Reversed. Mr. Justice Powell filed an opinion con- curring in part and concurring in the judg- ment, in which Mr. Justice Blackmun joined. Mr. Justice Brennan filed a dissenting opinion in which Mr. Justice Marshall joined. Mr. Justice Stewart filed a dissenting opinion in which Mr. Justice Brennan, Mr. Justice White and Mr. Justice Marshall joined. 1. Federal Courts x460 Rule that Supreme Court reviews judg- ments, not statements in opinions, has spe- cial force when statements raise constitu- tional questions. 2. Constitutional Law e=46(1) Supreme Court avoids unnecessary de- cision of constitutional questions. 3. Constitutional Law (3=69 However, appropriate it may be for an administrative agency to write broadly in an adjudicatory proceeding, federal courts are not authorized to issue advisory opin- ions. 4. Telecommunications x437 Where order of Federal Communica- tions Commission holding that monologue was indecent as broadcast was issued in a specific factual context, where questions concerning possible action in other contexts were expressly reserved for the future, and where Commission did not purport to en- gage in formal rule making or in promulga- tion of any regulations, judicial review of order would focus on Commission's determi- nation that monologue was indecent as 5. Telecommunications x433 Section of Communications Act of 1934 prohibiting censorship by Federal Commu- nications Commission was not intended to limit Commission's power to sanction licen- sees who broadcast obscene, indecent, or profane language. Communications Act of 1934, § 326 as amended 47 U.S.C.A. § 326. 6. Telecommunications X432 Order of Federal Communications Commission holding that language of mono- logue which was broadcast on afternoon radio program was indecent as broadcast did not constitute "censorship" forbidden by section of Communications Act of 1934. Communications Act of 1934, § 326 as amended 47 U.S.C.A. § 326. See publication Words and Phrases for other judicial constructions and definitions. 7. Telecommunications <2=4 Validity of civil sanctions contained in Communications Act of 1934 is not linked to validity of criminal penalties. Communica- tions Act of 1934, §§ 303(g), 312(a)(6), (bX2), 503(b)(1)(E) as amended 47 U.S.C.A. §§ 303(g), 312(a)(6), (b)(2), 503(b)(1)(E); 18 U.S.C.A. § 1464. 8. Telecommunications ' 432 Under statute authorizing Federal Communications Commission to impose sanctions on broadcasters who engage in "obscene, indecent, or profane" broadcast- ing, fact that words "obscene, indecent, or profane" are written in the disjunctive im- plies that each has separate meaning, and thus, while prurient appeal is an element of the obscene language may be "indecent" in the absence of prurient appeal. 18 U.S.C.A. § 1464. See publication Words and Phrases for other judicial constructions and definitions. 9. Constitutional Law <3=90.1(9) First Amendment has special meaning in broadcasting context. U.S.C.A.Const Amend. 1. 3028 98 SUPREME CO 10. Telecommunications 8=432 Federal Communications Commission properly determined that language of pre- recorded monologue which was broadcast on afternoon radio.program was indecent as broadcast, despite absence of prurient ap- peal. 18 U.S.C.A. § 1464. 11. Telecommunications x433 Although speakers other than broad- casters cannot be licensed except under laws that carefully define and narrow offi- cial discretion, a broadcaster may constitu- tionally be deprived of his license and fo- rum if Federal Communications Commis- sion decides that such an action would serve the public interest, convenience, and neces- sity. U.S.C.A.Const. Amend. 1. 12. Constitutional Law e=90.1(9) Although First Amendment protects newspaper publishers from being required to print replies of those whom they criticize, it affords no such protection to broadcast- ers, and, on the contrary, they must give free time to victims of their criticism. U.S. C.A.Const. Amend. 1. 13. Constitutional Law 8=90.1(9) In view of facts that broadcast media has established uniquely pervasive presence and that broadcasting is uniquely accessible to children, even those too young to read, order of Federal Communications Commis- sion holding that language of prerecorded monologue which was broadcast in the early afternoon on radio program was indecent and was thus prohibited by statute did not violate broadcaster's First Amendment rights, even if broadcast was not obscene. U.S.C.A.Const. Amend. 1; 18 U.S.C.A. § 1464. Syllabus' A radio station of respondent Pacifica Foundation (hereinafter respondent) made an afternoon broadcast of a satiric mono- ' The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of URT REPORTER 438 U.S. 726,:, logue, entitled "Filthy Words," which listed and repeated a variety of colloquial uses of "words you couldn't say on the public air- waves." A father who heard the broadcasts while driving with his young son com plained to the Federal Communications Commission (FCC), which, after forwarding the complaint for comment to and receiving, a response from respondent, issued a declar- atory order granting the complaint. While not imposing formal sanctions, the FCC stated that the order would be "associated" with the station's license file, and in the event subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress." In its memorandum opinion, the FCC stated that it intended to "clarify the standards which will be utilized in considering" the growing number of complaints about indecent radio broadcasts, and it advanced several reasons for treating that type of speech differently from other forms of expression. The FCC found a power to regulate indecent broad- casting, inter alfa, in 18 U.S.C. § 1464 (1976 ed.), which forbids the use of "any obscene, indecent, or profane language by means of • radio communications." The FCC charas- terized the language of the monologue as "patently offensive," though not necessarily.. obscene, and expressed the opinion that it should be regulated by principles analogous to the law of nuisance where the "law gen- erally speaks to channeling behavior rather. than actually. prohibiting it." The FCC found that certain words in the monologue depicted sexual and excretory activities in a particularly offensive manner, noted that' they were broadcast in the early afternoon.= "when children are undoubtedly in the audi-: ence," and concluded that the language as' broadcast was indecent and prohibited by § 1464. A three-judge panel of the Court' of Appeals reversed, one judge concluding that the FCC's action was invalid either on • the ground that the order constituted cen- the reader. See United States v. Detroit Tim. ber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct.'27' 282, 287, 50 L.Ed. 499. 438 U.S. 728 F. C. C. v. PACIFICA FOUNDATION Cite as 88 S.Ct. 3026 (1978) sorship, which was expressly forbidden by § 326 of the Communications Act of 1934, or on the ground that the FCC's opinion �tza was the functional equivalent ofla rule, and as such was "overbroad." Another judge, who felt that § 326's censorship provision did not apply to broadcasts forbidden by § 1464, concluded that § 1464, construed narrowly as it has to be, covers only lan- guage that is obscene or otherwise unpro- tected by the First Amendment. The third judge, dissenting, concluded that the FCC had correctly condemned the daytime broadcast as indecent. Respondent con- tends that the broadcast was not indecent within the meaning of the statute because of the absence of prurient appeal. Held : The judgment is reversed. Pp. 3032-3036; 3039-3041; 3046-3047. 181 U.S.App.D.C. 132, 556 F.2d 9, re- versed. Mr. Justice STEVENS delivered the opinion of the Court with respect to Parts I—III and IV—C, finding: 1. The FCC's order was an adjudica- tion under 5 U.S.C. § 554(e) (1976 ed.), the character of which was not changed by the general statements in the memorandum opinion; nor did the FCC's action constitute rulemaking or the promulgation of regula- tions. Hence, the Court's review must fo- cus on the FCC's determination that the monologue was indecent as broadcast. Pp. 3032-3033. 2. Section 326 does not limit the FCC's authority to sanction licensees who engage in obscene, indecent, or profane broadcasting. Though the censorship ban precludes editing proposed broadcasts in ad- vance, the ban does not deny the FCC the power to review the content of completed broadcasts. Pp. 3033-3035. 3. The FCC was warranted in con- cluding that indecent language within the meaning of § 1464 was used in the chal- lenged broadcast. The words "obscene, in- decent, or profane" are in the disjunctive, implying that each has a separate meaning. Though prurient appeal is an element of 3029 "obscene," it is not an element of "inde- cent," which merely refers to noncomfor- mance with accepted standards of morality. Contrary to respondent's argument, this Court in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590, has not foreclosed a reading of § 1464 that autho- rizes a proscription of "indecent" language that is not obscene, for the statute involved in that case, unlike § 1464, focused upon the prurient, and dealt primarily with printed matter in sealed envelopes mailed from one individual to another, whereas § 1464 deals with the content of public broadcasts. Pp. 3035-3036. 4. Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the rea- sons for specially treating indecent broad- casting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoidjthose that are patently offensive. Broadcasting, moreover, is uniquely accessible to children. Pp. 3039- 3041. Mr. Justice STEVENS, joined by THE CHIEF JUSTICE, and Mr. Justice REHN- QUIST, concluded in Parts IV—A and IV— B: 1. The FCC's authority to proscribe this particular broadcast is not invalidated by the possibility that its construction of the statute may deter certain hypothetically protected broadcasts containing patently of- fensive references to sexual and excretory activities. Cf. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371. Pp. 3036-3037. 2. The First Amendment does not pro- hibit all governmental regulation that de- pends on the content of speech. Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470. The content of respon- dent's broadcast, which was "vulgar," "of- fensive," and "shocking," is not entitled to absolute constitutional protection in all con- texts; it is therefore necessary to evaluate 3030 98 SUPREME CO the FCC's action in light of the context of that broadcast. Pp. 3037-3040. Mr. Justice POWELL, joined by Mr. Justice BLACKMUN, concluded that the FCC's holding does not violate the First Amendment, though, being of the view that Members of this Court are not free general- ly to decide on the basis of its content which speech protected by the First Amend- ment is most valuable and therefore deserv- ing of First Amendment protection, and which is less "valuable" and hence less de- serving of protection, he is unable to join Part IV—B (or IV—A) of the opinion. Pp. 3046-3047. Joseph A. Marino, Washington, D. C., for petitioner. Harry M. Plotkin, Washington, D. C., for respondent Pacifica Foundation. Louis F. Claiborne, Washington, D. C., for respondent United States. 1221 1Mr. Justice STEVENS delivered the opin- ion of the Court (Parts I, II, III and IV—C) and an opinion in which THE CHIEF JUS- TICE and Mr. Justice REHNQUIST joined (Parts IV—A and IV—B). This case requires that we decide whether the Federal Communications Commission has any power to regulate a radio broadcast that is indecent but not obscene. A satiric humorist named George Carlin recorded a 12 -minute monologue entitled "Filthy Words" before a live audience in a California theater. He began by referring to his thoughts about "the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever." He proceeded to list those words and repeat them over and over again in a variety of colloquialisms. The transcript of the re- cording, which is appended to this opinion, indicates frequent laughter from the audi- ence. 1. 56 F.C.C.2d, at 99. The Commission noted: "Congress has specifically empowered the FCC to (1) revoke a station's license (2) issue a cease and desist order, or (3) impose a mone- tary forfeiture for a violation of Section 1464, URT REPORTER 438 U.S. 728 At about 2 o'clock in the afternoon on.. Tuesday, October 30, 1973, a New York,: radio station, owned by respondent Pacifica 1Foundation, broadcast the "Filthy Words", monologue. A few weeks later a man, who.. stated that he had heard the broadcast while driving with his young son, wrote a letter complaining to the Commission. He stated that, although he could perhaps un- derstand the "record's being sold for private use, I certainly cannot understand the broadcast of same over the air that, suppos• - edly, you control." The complaint was forwarded to the sta- tion for comment. In its response, Pacifica explained that the monologue had been played during a program about contempo- rary society's attitude toward language and that, immediately before its broadcast, lis- teners had been advised that it included "sensitive language which might be regard- ed as offensive to some." Pacifica charac- terized George Carlin as "a significant so- cial satirist" who "like Twain and Sahl be- fore him, examines the language of ordi- nary people. . . . Carlin is not mouth- ing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words." Pacifica stated that it was not aware of any other complaints about the broadcast. , On February 21, 1975, the Commission issued a declaratory order granting the' complaint and holding that Pacifica "could have been the subject of administrative sanctions." 56 F.C.C.2d 94, 99. The Com; mission 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 Commission will then de- cide whether it should utilize any of the available sanctions it has been granted by Congress." 1 _an its memorandum opinion the commis -Ji sion stated that it intended to "clarify the 47 U.S.C. [§§] 312(a), 3I2(b), 503(b)(I)(E). The FCC can also (4) deny license renewal or (5) grant a short term renewal, 47 U.S.C. [§§] 307, 308." Id., at 96 n. 3. 438 U.S. 732 F. C. C. v. PACIFICA FOUNDATION Cite as 98 S.CI. 3026 (1978) standards which will be utilized in consider- ing" the growing number of complaints about indecent speech on the airwaves. Id., at 94. Advancing several reasons for treat- ing broadcast speech differently from other forms of expression,2 the Commission found a power to regulate indecent broadcasting in two statutes: 18 U.S.C. § 1464 (1976 ed.), which forbids the use of "any obscene, inde- cent, or profane language by means of radio communications," 3 and 47 U.S.C. § 303(g), which requires the Commission to "encour- age the larger and more effective use of radio in the public interest." 4 The Commission characterized the lan- guage used in the Carlin monologue as "patently offensive," though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to those found in the law of nuisance where the "law generally speaks to channeling behavior more than actually prohibiting it. j2.32 . . [T]he coo ept of `indecent' is inti - 2. Broadcasting requires special treatment be- cause of four important considerations: (1) children have access to radios and in many cases are unsupervised by parents; (2) radio receivers are in the home, a place where peo- ple's privacy interest is entitled to extra defer- ence, see Rowan v. Post Office Dept., 397 U.S. 728 [90 S.Ct. 1484, 25 L.Ed.2d 736) (1970); (3) unconsenting adults may tune in a station with- out any warning that offensive language is be- ing or will be broadcast; and (4) there is a scarcity .of spectrum space, the use of which the government must therefore license in the public interest. Of special concern to the Com- mission as well as parents is the First point regarding the use of radio by children." Id., at 97. 3. Title 18 U.S.C. § 1464 (1976 ed.) provides: "Whoever utters any obscene, indecent, or profane language by means of radio communi- cation shall be fined not more than 510,000 or imprisoned not more than two years. or both." 4. Section 303(g) of the Communications Act of 1934, 48 Stat. 1082, as amended, as set forth in 47 U.S.C. § 303(g). in relevant part, provides: "Except as otherwise provided in this chap- ter, the Commission from time to time, as pub- lic convenience, interest, or necessity requires, shall - 3031 mately connected with the exposure of chil- dren to language that describes, in terms patently offensive as measured by contem- porary community standards for the broad- cast 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." 56 F.C.C.2d, at 98.5 Applying these considerations to the lan- guage used in the monologue as broadcast by respondent, the Commission concluded that certain words depicted sexual and ex- cretory activities in a patently offensive manner, noted that they "were broadcast at a time when children were undoubtedly in the audience (i. e., in the early afternoon)," and that the prerecorded language, with these offensive words "repeated over and over," was "deliberately broadcast." Id., at 99. In summary, the Commission stated: "We therefore hold that the language as bf oadcast was indecent and prohibited by 18 U.S.C. [§] 1464." 6 Ibid. (g) . generally encourage the larger and more effective use of radio in the public interest." 5. Thus, the Commission suggested, if an offen- sive broadcast had literary, artistic, political, or scientific value, and were preceded by warn- ings, it might not be indecent in the late eve- ning, but would be so during the day, when children are in the audience. 56 F.C.C.2d, at 98. 6. Chairman Wiley concurred in the result with- out joining the opinion. Commissioners Reid and Quello filed separate statements expressing the opinion that the language was inappropri- ate for broadcast at any time. Id., at 102-103. Commissioner Robinson, joined by Commis- sioner Hooks, filed a concurring statement ex- pressing the opinion: "[W]e can regulate offen- sive speech to the extent it constitutes a public nuisance. . . . The governing idea is that 'indecency' is not an inherent attribute of words themselves; it is rather a matter of con- text and conduct. . If I were called on to do so, I would find that Carlin's monologue, if it were broadcast at an appropriate hour and accompanied by suitable warning, was distin- guished by sufficient literary value to avoid being 'indecent' within the meaning of the stat- ute." Id., at 107-108, and n. 9. } ;1 3032 98 SUPREME COURT REPORTER 438 U.S. 732 After the order issued, the Commission was asked to clarify its opinion by ruling that the broadcast of indecent words as part of a live newscast would not be prohib- ited. The Commission issued another opin- J/33 ion in which it pointed out thatjit "never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it." 59 F.C.C.2d 892 (1976). The Commission noted that its "declaratory or- der was issued in a specific factual con- text," and declined to comment on various hypothetical situations presented by the pe- tition.7 Id., at 893. It relied on its "long standing policy of refusing td issue inter- pretive rulings or advisory opinions when the critical facts are not explicitly stated or there is a possibility that subsequent events will alter them." Ibid. The United States Court of Appeals for the District of Columbia Circuit reversed, with each of the three judges on the panel writing separately. 181 U.S.App.D.C. 132, 556 F.2d 9. Judge Tamm concluded that the order represented censorship and was expressly prohibited by § 326 of the Com- munications Act 8 Alternatively, Judge Tamm read the Commission opinion as the functional equivalent of a rule and conclud- ed that it was "overbroad." 181 U.S.App. D.C., at 141, 556 F.2d, at 18. Chief Judge Bazelon's concurrence rested on the Consti- • tution. He was persuaded that § 326's pro- hibition against censorship is inapplicable to broadcasts forbidden by § 1464: However, he concluded that § 1464 must be narrowly 1234 construedi_to cover only language that is obscene or otherwise unprotected by the First Amendment. 181 U.S.App.D.C., at 140-153, 556 F.2d, at 24-30. Judge Leven- thal, in dissent, stated that the only issue 7. The Commission did. however comment: "'[I]n some cases, public events likely to produce offensive speech are covered live, and there is no opportunity for journalistic editing.' Under these circumstances we believe that it would be inequitable for us to hold a licensee responsible for indecent language. We trust that under such circumstances a li- censee will exercise judgment, responsibility, and sensitivity to the community's needs, inter- ests and tastes." 59 F.C.C.2d, at 893 n. 1. was whether the Commission could regulate the language "as broadcast." Id., at 154,' 556 F.2d, at 31. Emphasizing the interest in protecting children, not only from expo- sure to indecent language, but also from exposure to the idea that such language has official approval, id., at 160, and n.18, 556 F.2d, at 37, and n. 18, he concluded that the Commission had correctly condemned the daytime broadcast as indecent. Having granted the Commission's peti- tion for certiorari, 434 U.S. 1008, 98 S.Ct. 715, 54 L.Ed.2d 749, we must decide: (1) whether the scope of judicial review encom- passes more than the Commission's determi- nation that the monologue was indecent "as broadcast"; (2) whether the Commission's order was a form of censorship forbidden by § 326; (3) whether the broadcast was inde- cent within the meaning of § 1464; and (4) whether the order violates the First Amendment of the United States Constitu- tion. [1-4] The general statements in• the Commission's memorandum opinion do not change the character of its order. Its ac- tion was an adjudication under 5 U.S.C.' § 554(e) (1976 ed.); it did not purport tol. engage in formal rulemaking or in the pro- mulgation of any regulations. The order "was issued in a specific factual context"; questions concerning possible action in oth- er contexts were expressly reserved for the future. The specific holding was carefully, confined to the monologue "as broadcast. "This Court . . . reviews judg- ments, not statements in opinions." Black v. Cutter Laboratories, 351 U.S. 292, 297, 76 S.Ct. 824, 827, 100 L.Ed. 1188. That admo- nition has special force when the state 8. "Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication." 48 Stat. 1091, 47 U.S.C. § 326. 438 U.S. 736 F. C. C. v. PACIFICA FOUNDATION 3033 Cite as 98 S.Ct. 3026 (1978) the radio communications or signals transmitted•by any radio station, and no regulation or condition shall be promul- gated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communi- cations. No person within the jurisdic- tion of the United States shall utter any obscene, indecent, or profane language by means of radio communication." 44 Stat. 1172-1173. ments raise constitutional questions, for it is our settled practice to avoid the unneces- sary decision of such issues. Rescue Army v. Municipal Court, 331 U.S. 549, 568-569, 67 S.Ct. 1409, 1419-1420, 91 L.Ed. 1666. 135 However appropriate it may lie for an ad- ministrative agency to write broadly in an adjudicatory proceeding, federal courts have never been empowered to issue adviso- ry opinions. See Herb v. Pitcairn, 324 U.S. 117, 126, 65 S.Ct. 459, 463, 89 L.Ed. 789. Accordingly, the focus of our review must be on the Commission's determination that the Carlin monologue was indecent as broadcast. II The relevant statutory questions are whether the Commission's action is forbid- den "censorship" within the meaning of 47 U.S.C. § 326 and whether speech that con- cededly is not obscene may be restricted as "indecent" under the authority of 18 U.S.C. § 1464 (1976 ed.). The questions are not unrelated, for the two statutory provisions have a common origin. Nevertheless, we analyze them separately. Section 29 of the Radio Act of 1927 pro- vided: "Nothing in this Act shall be under- stood or construed to give the licensing authority the power of censorship over 9. Zechariah Chafee, defending the Commis- sion's authority to take into account program service in granting licenses, interpreted the re- striction on "censorship" narrowly: "This means, I feel sure, the sort of censorship which went on in the seventeenth century in Eng- land—the deletion of specific items and dicta- tion as to what should go into particular pro- grams." 2 Z. Chafee, Government and Mass Communications 641 (1947). 10. In KFKB Broadcasting Assn. v. Federal Ra- dio Comm'n, 60 App.D.C. 79, 47 F.2d 670 (1931), a doctor who controlled a radio station as well as a pharmaceutical association made frequent broadcasts in which he answered the medical questions of listeners. He often pre- scribed mixtures prepared by his pharmaceuti- cal association. The Commission determined that renewal of the station's license would not be in the public interest, convenience, or neces- sity because many of the broadcasts served the The prohibition against censorship un- equivocally denies the Commission any pow- er to edit proposed broadcasts in advance and to excise material considered inappro- priate for the airwaves. The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the per- formance of its regulatory duties.8 During the period between the original enactment of the provision in 1927 and its re-enactment in the Communications Act of 1934, the courts and the Federal Radio Commission held that the section deprived the Commission of , the power to subject "broadcasting matter to scrutiny prior to its release," but they concluded that the Com- mission's "undoubted right" to take note of past program content when considering a licensee's renewal application "is not cen- sorship." 1° doctor's private interests. In response to the claim that this was censorship in violation of § 29 of the 1927 Act, the Court held: "This contention is without merit. There has been no attempt on the part of the commission to subject any part of appellant's broadcasting matter to scrutiny prior to its release. In con- sidering the question whether the public inter- est, convenience, or necessity will be served by a renewal of appellant's license, the commis- sion has merely exercised its undoubted right to take note of appellant's past conduct, which is not censorship." 60 App.D.C., at 81, 47 F.2d, at 672. In Trinity .Methodist Church, South v. Federal Radio Comm'n. 61 App.D.C. 311, 62 F.2d 850 (1932), cert. denied, 288 U.S. 599, 53 S.Ct. 317, 77 L.Ed. 975, the station was controlled by a minister whose broadcasts contained frequent references to "pimps" and "prostitutes" as well as bitter attacks on the Roman Catholic W36 3034 98 SUPREME COURT REPORTER 1137 allot only did the Federal Radio Commis- sion so construe the statute prior to 1934; its successor, the Federal Communications Commission, has consistently interpreted the provision in the same way ever since. See Note, Regulation of Program Content by the FCC, 77 Harv.L.Rev. 701 (1964). And, until this case, the Court of Appeals for the District of Columbia Circuit has consistently agreed with this construction.[[ Thus, for example, in his opinion in Anti - Defamation League of B'nai B'rith v. FCC, 131 U.S.App.D.C. 146, 403 F.2d 169 (1968), cert. denied, 394 U.S. 930, 89 S.Ct. 1190, 22 L.Ed.2d 459. Judge Wright forcefully pointed out that the Commission is not pre- vented from canceling the license of a broadcaster who persists in a course of im- proper programming. He explained: "This would not be prohibited 'censor- ship,' .. . . any more than would the Commission's considering on a license re- newal application whether a broadcaster allowed 'coarse, vulgar, suggestive, dou- ble -meaning' programming; programs containing such material are grounds for denial of a license renewal." 131 U.S. App.D.C., at 150-151, n. 3, 403 F.2d, at 173-174, n. 3. See also Office of Communication of United Church of Christ v. FCC, 123 .U.S. App.D.C. 328, 359 F.2d 994 (1966). [5, 6] Entirely apart from the fact that the subsequent review of program content is not the sort of censorship at which the Church. The Commission refused to renew the license, citing the nature of the broadcasts. The Court of Appeals affirmed, concluding that First Amendment concerns did not prevent the Commission from regulating broadcasts that "offend the religious susceptibilities of thou- sands . . . or offend youth and innocence by the free use of words suggestive of sexual immorality." 61 App.D.C., at 314, 62 F.2d, at 853. The court recognized that the licensee had a right to broadcast this material free of prior restraint, but "this does not mean that the government, through agencies established by Congress, may not refuse a renewal of license to one who has abused it." Id., at 312, 62 F.2d, at 851. 11. See. e. g.. Bay State Beacon, Inc. v. FCC, 84 U.S.App.D.C. 216, 171 F.2d 826 (1948); Idaho 438 U.S. 737 statute was directed, its history makes it perfectly clear that it was not intended to limit the Commission's power to regulate the broadcast of obscene, indecent, or pro- fane language. A single section of the 1927 Act is the source of both_ilhe anticensorship provision and the Commission's authority to impose sanctions for the broadcast of inde- cent or obscene language. Quite plainly, Congress intended to give meaning to both provisions. Respect for that intent requires that the censorship language be read as inapplicable to the prohibition on broadcast- ing obscene, indecent, or profane language. There is nothing in the legislative history to contradict this conclusion. The provision was discussed only in generalities when it was first enacted.12 In 1934, the anticen- sorship provision and the prohibition against indecent broadcasts were re-enacted in the same section, just as in the 1927 Act. In 1948, when the Criminal Code was re- vised to include provisions that had previ- ously been located in other Titles of the United States Code, the prohibition against obscene, indecent, and profane broadcasts was removed from the Communications Act and re-enacted as § 1464 of Title 18. 62 Stat. 769 and 866. That rearrangement of the Code cannot reasonably be interpreted as having been intended to change the meaning of the anticensorship provision. H.R.Rep.No. 304, 80th Cong., 1st Sess., A106 (1947). Cf. Tidewater Oil Co. v. United Microwave. Inc. v. FCC, 122 U.S.App.D.C. 253, 352 F.2d 729 (1965); National Assn. of Theatre Owners v. FCC, 136 U.S.App.D.C. 352, 420 F.2d 194 (1969), cert. denied, 397 U.S. 922, 90 S.Ct. 914, 25 L.Ed.2d 102. 12. See, e. g., 67 Cong.Rec. 12615 (1926) (re- marks of Sen. Dill); id., at 5480 (remarks of Rep. White); 68 Cong.Rec. 2567 (1927) (re- marks of Rep. Scott); Hearings on S.1 and S.1754 before the Senate Committee on Inter- state Commerce, 69th Cong., 1st Sess., 121 (1926); Hearings on H.R.5589 before the House Committee on the Merchant Marine and Fisher- ies, 69th Cong., 1st Sess., 26 and 40 (1926). See also Hearings on H.R.8825 before the House Committee on the Merchant Marine and Fisheries, 70th Cong., 1st Sess., passim (1928). 438 U.S. 740 F. C. C. v. PACIFICA FOUNDATION Cite as 98 S.CL 3026 States, 409 U.S. 151, 162, 93 S.Ct. 408, 415, 34 L.Ed.2d 375. We conclude, therefore, that § 326 does not limit the Commission's authority to im- pose sanctions on licensees who engage in obscene, indecent, or profane broadcasting. III [7] The only other statutory question presented by this case is whether the after- j2ss noon broadcast of the "Filthy Words" Lmon- ologue was indecent within the meaning of § 1464.13 Even that question is narrowly confined by the arguments of the parties. The Commission identified several words that referred to excretory or sexual activi- ties or organs, stated that the repetitive, deliberate use of those words in an after- noon broadcast when children are in the audience was patently offensive, and held that the broadcast was indecent. Pacifica takes issue with the Commission's definition of indecency, but does not dispute the Com- mission's preliminary determination that each of the components of its definition was present. Specifically, Pacifica does not quarrel with the conclusion that this after- noon broadcast was patently offensive. Pacifica's claim that the broadcast was not indecent within the meaning of the statute 13. In addition to § 1464, the Commission also relied on its power to regulate in the public interest under 47 U.S.C. §,303(g). We do not need to consider whether § 303 may have inde- pendent significance in a case such as this. The statutes authorizing civil penalties incorpo- rate § 1464, a criminal statute. See 47 U.S.C. §§ 312(a)(6), 312(b)(2), and 503(b)(1)(E) (1970 ed. and Supp. V). But the validity of the civil sanctions is not linked to the validity of the criminal penalty. The legislative history of the . provisions establishes their independence. As enacted in 1927 and 1934, the prohibition on indecent speech was separate from the provi- sions imposing civil and criminal penalties for violating the prohibition. Radio Act of 1927, §§ 14, 29, and 33, 44 Stat. 1168 and 1173; Communications Act of 1934, §§ 312, 326, and 501, 48 Stat. 1086, 1091, and 1100, 47 U.S.C. §§ 312, 326. and 501 (1970 ed. and Supp. V). The 1927 and 1934 Acts indicated in the strong- est possible language that any invalid provision (1978) rests entirely on the absence of prurient appeal. 3035 [8] The plain language of the statute does not support Pacifica's argument. - The words "obscene, indecent, or profane" are written in the disjunctive, implying that,J74o each has a separate meaning. Prurient ap- peal is an element of the obscene, but the normal definition of "indecent" merely re- fers to nonconformance with accepted stan- dards of morality.t4 Pacifica argues, however, that this Court has construed the term "indecent" in relat- ed statutes to mean "obscene," as that term was defined in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. Pacifica relies most heavily on the construction this Court gave to 18 U.S.C. § 1461 in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590. See also 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 (18 U.S.C. § 1462) (dicta). Hamling rejected a vagueness attack on § 1461, which forbids the mailing of "obscene, lewd, lascivious, indecent, filthy or vile" material. In hold- ing that the statute's coverage is limited to obscenity, the Court followed the lead of Mr. Justice Harlan in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 633. In that case, Mr. Justice Har- lan recognized that § 1461 contained a vari- ety of words with many shades of mean - was separable from the rest of the Act. Radio Act of 1927, § 38, 44 Stat. 1174: Communica- tions Act of 1934, § 608, 48 Stat. 1105, 47 U.S.C. § 608. Although the 1948 codification of the criminal laws and the addition of new civil penalties changed the statutory structure, no substantive change was apparently intend- ed. Cf. Tidewater Oil Co. v. United States, 409 U.S. 151, 162, 93 S.Ct. 408, 415, 34 L.Ed.2d 375. Accordingly, we need not consider any ques- tion relating to the possible application of § 1464 as a criminal statute. 14. Webster defines the term as "a: altogether unbecoming: contrary to what the nature of things or what circumstances would dictate as right or expected or appropriate: hardly suit- able: UNSEEMLY . . . b: not conform- ing to generally accepted standards of morality: . . Webster's Third New International Dictionary (1966). 3036 98 SUPREME COURT REPORTER ing.15 Nonetheless, he thought that the phrase "obscene, lewd, lascivious, indecent, filthy or vile," taken as a whole, was clearly limited to the obscene, a reading well grounded in prior judicial constructions: "[T]he statute since its inception has always been taken as aimed at obnoxiously debas- ing portrayals of sex." 370 U.S., at 483, 82 S.Ct., at 1434. In Hamling the Court agreed with Mr. Justice Harlan that § 1461 was meant only to regulate obscenity in the mails; by reading into it the limits set by Miller v. California, supra, the Court adopt- ed a construction which assured the stat- ute's constitutionality. i_241_119] The reasons supporting Hamling's construction of § 1461 do not apply to § 1464. Although the history of the former revealed a primary concern with the pru- rient, the Commission has long interpreted § 1464 as encompassing more than the ob- scene.16 The former statute deals primarily with printed matter enclosed in sealed en- velopes mailed from one individual to an- other; the latter deals with the content of public broadcasts. It is unrealistic to as- sume that Congress intended to impose pre- cisely the same limitations on the dissemi- 15. Indeed, at one point, he used "indecency" as a shorthand term for "patent offensiveness," 370 U.S., at 482, 82 S.Ct., at 1434, a usage strikingly similar to the Commission's defini- tion in this case. 56 F.C.C.2d, at 98. 16. "'[W]hile a nudist magazine may be within the protection of the First Amendment . . the televising of nudes might well raise a seri- ous question of programing contrary to 18 U.S.C. § 1464 .. Similarly, regardless of whether the "4 -letter words" and sexual description, set forth in "lady Chatterly's Lov- er," (when considered in the context of the whole book) make the book obscene for maila- bility purposes, the utterance of such words or the depiction of such sexual activity on radio or TV would raise similar public interest and sec- tion 1464 questions.' " Enbanc Programing In- quiry, 44 F.C.C. 2303. 2307 (1960). See also In re WUHY-FM, 24 F.C.C.2d 408. 412 (1970); In re Sonderling Broadcasting Corp., 27 R.R.2d 285, on reconsideration, 41 F.C.C2d 777 (1973), affd on other grounds sub nom. Illinois Citi- zens Committee for Broadcasting v. FCC, 169 U.S.App.D.C. 166, 515 F.2d 397 (1974); In re Mile High Stations. Inc., 28 F.C.C. 795 (1960): 438 U.S. 740 - nation of patently offensive matter by such different means.t7 [10] Because neither our prior decisions nor the language or history of § 1464 sup- ports the conclusion that prurient appeal is an essential component of indecent lan- guage, we reject Pacifica's construction of the statute. When that construction is put to one side, there is no basis for disagreeing with the Commission's conclusion that inde- cent language was used in this broadcast. 1IV Pacifica makes two constitutional attacks on the Commission's order. First, it argues that the Commission's construction of the statutory language broadly encompasses so much constitutionally protected speech that reversal is required even if Pacifica's broad- cast of the "Filthy Words" monologue is not itself protected by the First Amendment. Second, Pacifica argues that inasmuch as the recording is not obscene, the Constitu- tion forbids any abridgment of the right to broadcast it on the radio. In re Palmetto Broadcasthng Co., 33 F.C.C. 250 (1962), reconsideration denied, 34 F.C.C. 101 (1963), aff'd on other grounds sub nom. Robin- son v. FCC, 118 U.S.App.D.C. 144, 334 F.2d 534 (1964), cert. denied, 379 U.S. 843, 85 S.Ct. 84, 13 L.Ed.2d 49. 17. This conclusion is reinforced by noting the different constitutional limits on Congress' power to regulate the two different subjects. Use of the postal power to regulate material that is not fraudulent or obscene raises "grave constitutional questions." Hannegan v. Es- quire, Inc., 327 U.S. 146, 156, 66 S.Ct. 456, 461, 90 L.Ed. 586. But it is well settled that the First Amendment has a special meaning in the broadcasting context. See, e. g., FCC v. Na- tional Citizens Committee for Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 56 L.Ed.2d 697; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371; Columbia Broadcasting System, Inc. v. Democratic Na- tional Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772. For this reason, the presumption that Congress never intends to exceed constitu- tional limits, which supported Hamling's nar- row reading of § 1461, does not support a comparable reading of § 1464. 742 438 U.S. 744 F. C. C. v. PACIFICA FOUNDATION Cite as 98 S.Ct. 3026 (1978) It is true that the Commission's order may lead some broadcasters to censor them- selves. At most, however, the Commission's definition of indecency will deter only the broadcasting of patently offensive refer- ences to excretory and sexual organs and activities.19 While some of these references may be protected, they surely lie at the periphery of First Amendment concern. Cf. Bates v. State Bar of Arizona, 433 U.S. 350, 380-381, 97 S.Ct. 2691, 2707-2708, 53 L.Ed.2d 810. Young v. American Mini The- atres, Inc., 427 U.S. 50, 61, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310. The danger dismissed so summarily in Red Lion, in contrast, was that broadcasters would respond to the vagueness of the regulations by refusing to present programs dealing with important social and political controversies. Invali- dating any rule on the basis of its hypothet- ical application to situations not before the Court is "strong medicine" to be applied "sparingly and only as a last resort." Broa- drick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830. We de- cline to administer that medicine to pre- serve the vigor of patently offensive sexual and excretory speech. A The first argument fails because our re- view is limited to the question whether the Commission has the authority to proscribe this particular broadcast. As the Commis- sion itself emphasized, its order was "issued in a specific factual context." 59 F.C.C.2d, at 893. That approach is appropriate for courts as well as the Commission when reg- ulation of indecency is at stake, for indecen- cy is largely a function of context—it can- not be adequately judged in the abstract. The approach is also consistent with Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371. In that case the Court rejected an argument that the Commission's regulations defining the fair- ness doctrine were so vague that they would inevitably abridge the broadcasters' freedom of speech. The Court of Appeals had invalidated the regulations because their vagueness might lead to self -censor - J243 ship of controversial program jeontent. Ra- dio Television News Directors Assn. v. Unit- ed States, 400 F.2d 1002, 1016 (CA7 1968). This Court reversed. After noting that the Commission had indicated, as it has in this case, that it would not impose sanctions without warning in cases in which the ap- plicability of the law was unclear, the Court stated: "We need not -approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the consti- tutionality of these regulations by envi- sioning the most extreme applications conceivable, United States v. Sullivan, 332 U.S. 689, 694, [68 S.Ct. 331, 92 L.Ed. 297] (1948), but will deal with those prob- lems if and when they arise." 395 U.S., at 396, 89 S.Ct., at 1809. 18. A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious com- munication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language. 19. Pacifica's position would. of course, deprive the Commission of any power to regulate erotic telecasts unless they were obscene under Miller v. California, 413 U.S. 15. 93 S.Ct. 2607, 37 L.Ed.2d 419. Anything that could be sold at a 98 S.C.-65 3037 1B X44 When the issue is narrowed to the facts of this case, the question is whether the First Amendment denies government any power to restrict the public broadcast of indecent language in any circumstances.19 For if the government has any such power, this was an appropriate occasion for its exercise. The words of the Carlin monologue are unquestionably "speech" within the mean - newsstand for private examination could be publicly displayed on television. We are assured by Pacifica that the free play of market forces will discourage indecent pro- gramming. "Smut may," as Judge Leventhal put it, "drive itself from the market and con- found Gresham." 181 U.S.App.D.C., at 158, 556 F.2d, at 35: the prosperity of those who traffic in pornographic literature and films would ap- pear to justify skepticism. 3038 98 SUPREME CO ing of the First Amendment. It is equally clear that the Commission's objections to the broadcast were based in part on its content. The order must therefore fall if, as Pacifica argues, the First Amendment prohibits all governmental regulation that depends on the content of speech. Our past cases demonstrate, however, that no such absolute rule is mandated by the Constitu- tion. The classic exposition of the proposition that both the content and the context of speech are critical elements of First Amendment analysis is Mr. Justice Holmes' statement for the Court in Schenck v. Unit- ed States, 249 U.S. 47, 52, 39 S.Ct.• 247, 248, 63 L.Ed. 470: "We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not pro- tect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction _124s against uttering wordsjhat may have all the effect of force. . . . The ques- tion in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Other distinctions based on content have been approved in the years since Schenck. The government may forbid speech calcu- lated to provoke a fight. See Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 20. Although neither Mr. Justice POWELL nor Mr. Justice BRENNAN directly confronts this question, both have answered it affirmatively, the latter explicitly, post, at 3050 n. 3, and the former implicitly by concurring in a judgment that could not otherwise stand. 21. See, e. g., Madison School District v. Wis- consin Employment Relations Comm'n, 429 U.S. 167, 175-176, 97 S.Ct. 421, 426, 50 L.Ed.2d 376; First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707. URT REPORTER 438 U.S. 744" 86 L.Ed. 1031. It may pay heed to the "'commonsense differences' between com mercial speech and other varieties." Bates v. State Bar of Arizona, supra, 433 U.S., at 381, 97 S.Ct., at 2707. It may treat libels against private citizens more severely than libels against public officials. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789. Obscenity may be wholly prohibited. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419. And only two Terms ago we refused to hold that a "statutory classification is unconstitution- al because it is based on the content of communication protected by the First Amendment." Young v. American Mini Theatres, Inc., supra, 427 U.S., at 52, 96 S.Ct., at 2443. The question in this case is whether a broadcast of patently offensive words deal- ing with sex and excretion may be regulat- ed because of its content 2° Obscene mate- rials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral stan- dards. Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amend- ment that the government must remain neutral in the marketplace ofideas 21 If .Ji there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content—or even to the fact that it satirized contemporary attitudes about four-letter words 22—First Amend - 22. 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." See supra, at 3030. The Commission objects. not to this point of view, but to the way in which it is expressed. The belief that these words are harmless does not necessarily confer a First Amendment priv- ilege to use them while proselytizing. just as the conviction that obscenity is harmless does not license one to communicate that conviction 438 U.S. 748 F. C. C. v. PACIFI Cite as 98 S.Ct. ment protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends 23 Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: "Such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S., at 572, 62 S.Ct., at 769. Although these words ordinarily lack lit- erary, political, or scientific value, they are not entirely outside the protection of the First Amendment. Some uses of even the most offensive words are unquestionably protected. See, e. g., Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303. In- deed, we may assume, arguendo, that this monologue would be protected in other con - 1797 texts. Nonetheless, the constitutional pro- tection accorded to a communication con- taining such patently offensive sexual and CA FOUNDATION 3026 (1978) by the indiscriminate distribution of an obscene leaflet. 23. The Commission stated: "Obnoxious, gutter language describing these matters has the ef- fect of debasing and brutalizing human beings by reducing them to their mere bodily functions . . .." 56 F.C.C.2d, at 98. Our society has a tradition of performing certain bodily func- tions in private, and of severely limiting the public exposure or discussion of such matters. Verbal or physical acts exposing those intima- cies are offensive irrespective of any message that may accompany the exposure. 24. With respect to other types of speech, the Court has tailored its protection to both the abuses and the uses to which it might be put. See, e. g., New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 7,10, 11 L.Ed.2d 686 (special scienter rules in libel suits brought by public officials); Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (govern- ment may strictly regulate truthfulness in com- mercial speech). See also Young v. American Mini Theatres, Inc., 427 U.S. 50, 82 n. 6, 96 S.Ct. 2440, 2458, 49 L.Ed.2d 310 (POWELL, J.. concurring). 3039 excretory language need not be the same in every context?' It is a characteristic of speech such as this that both its capacity to offend and its "social value," to use Mr. Justice Murphy's term, vary with the cir- cumstances. Words that are commonplace in one setting are shocking in another. To paraphrase Mr. Justice Harlan, one occa- sion's lyric is another's vulgarity. Cf. Co- hen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 28425 In this case it is undisputed that the content of Pacifica's broadcast was "vul- gar," "offensive," and "shocking." Because content of that character is not entitled to absolute constitutional protection under all circumstances, we must consider its context +s in order to determine whether the Commis- sion's action was constitutionally permissi- ble. C [11, 12] We have long recognized that each medium of expression presents special First Amendment problems. Joseph Burs - 25. The importance of context is illustrated by the Cohen case. That case arose when Paul Cohen entered a Los Angeles courthouse wear- ing a jacket emblazoned with the words "Fuck the Draft." After entering the courtroom, he took the jacket off and folded it. 403 U.S., at 19 n. 3, 91 S.Ct., at 1785. So far as the evi- dence—showed, no one in the courthouse was offended by his jacket. Nonetheless, when he left the courtroom, Cohen was arrested, con- victed of disturbing the peace, and sentenced to 30 days in prison. In holding that criminal sanctions could not be imposed on Cohen for his political statement in a public place. the Court rejected the argu- ment that his speech would offend unwilling viewers; it noted that "there was no evidence that persons powerless to avoid [his] conduct did in fact object to it." Id., at 22. 91 S.Ct., at 1786. In contrast, in this case the Commission was responding to a listener's strenuous com- plaint. and Pacifica does not question its deter- mination that this afternoon broadcast was likely to offend listeners. It should be noted that the Commission imposed a far more mod- erate penalty on Pacifica than the state court imposed on Cohen. Even the strongest civil penalty at the Commission's command does not include criminal prosecution. See n. 1, supra. 3040 98 SUPREME CO tyn, Inc. v. Wilson, 343 U.S. 495, 502-503, 72 S.Ct. 777, 780-781, 96 L.Ed. 1098. And of all forms of communication, it is broadcast- ing that has received the most limited. First Amendment. protection. Thus, although other speakers cannot be licensed except under laws that carefully define and nar- row official discretion, a broadcaster may be deprived of his license and, his forum if the Commission decides that such an action would serve "the public interest, conve- nience, and necessity."26 Similarly, al- though the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730, it affords no such protection to. broadcasters; on the contrary, they must give free time to the victims of their criti- cism. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371. [13] The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive pres- ence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amend- ment rights of an intruder. Rowan v. Post 26. 47 U.S.C. §§ 309(a), 312(a)(2); FCC v. WOKO, Inc., 329 U.S. 223, 229, 67 S.Ct. 213, 216, 91 L.Ed. 204. Cf. Shuttlesworth v. Bir- mingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162; Staub v. Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302. 27. Outside the home, the balance between the offensive speaker and the unwilling audience may sometimes tip in favor of the speaker, requiring the offended listener to turn away. See Erznoznik v. Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125. As we noted in Cohen v. California: "While this Court has recognized that govern- ment may properly act in many situations to prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be totally banned from the public dialogue . . we have at the same time consistently stressed URT REPORTER 438 U.S. 748 Office Dept., 397 U.S. 728, 90 S.Ct. 1484,25, L.Ed.2d 736. Because the broadcast audi- ence is constantly tuning in and out, prior warnings cannot completely protect the lis- tener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he jhears indecent language is like saying that 4 the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immuni- ty or avoid a harm that has already taken place.22 Second, broadcasting is uniquely accessi- ble to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have en- larged a child's vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restrict- ing the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195, that the govern- ment's interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected ex- pression. jjd., at 640 and 639, 88 S.Ct., at 1760..; 1280.28 The ease with which children may -. that 'we are often "captives" outside the sanc- tuary of the home and subject to objectionable. speech.'" 403 U.S., at 21, 91 S.Ct., at 1786. The problem of harassing phone calls is hardly. hypothetical. Congress has recently found it necessary to prohibit debt collectors from "plac[ing] telephone calls without meaningful disclosure of the caller's identity"; from "en- gaging any person in telephone conversation repeatedly or continuously with intent to an- noy, abuse, or harass any person at the called number"; and from "us[ing] obscene or pro- fane language or language the natural conse- quence of which is to abuse the hearer or reader." Consumer Credit Protection Act Amendments, 91 Stat. 877, 15 U.S.C. § 1692d (1976 ed., Supp. 11). 28. The Commission's action does not by any means reduce adults to hearing only what is fit for children. Cf. Butler v. Michigan, 352 U.S. 438 U.S. 752 F. C. C. v. PACIFICA FOUNDATION Cite as 98 S.Ct. 3026 (1978) obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting. It is appropriate, in conclusion, to empha- size the narrowness of our holding. This case does not involve a two-way radio con- versation between a cab driver and a dis- patcher, or a telecast of an Elizabethan comedy. We have not decided that an occa- sional expletive in either setting would jus- tify any sanction or, indeed, that this broad- cast would justify a criminal prosecution. The Commission's decision rested entirely on a nuisance rationale under which context is all-important. The concept requires con- sideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the compo- sition of the audience 28 and differences be- tween radio, television, and perhaps closed- circuit transmissions, may also be relevant. As Mr. Justice Sutherland wrote a "nui- sance may be merely a right thing in the wrong place,—like a pig in the parlor in- stead of the barnyard." Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 118, 71 L.Ed. 303. We simply hold that when the Commission finds that a pig has Jstentered the parlor, the exercisejof its regu- latory power does not depend on proof that the pig is obscene. The judgment of the Court of Appeals is reversed. It is so ordered. APPENDIX TO OPINION OF THE COURT The following is -a verbatim transcript of "Filthy Words" prepared by the Federal Communications Commission. 380, 383, 77 S.Ct. 524. 526, 1 L.Ed.2d 412. Adults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear these words. In fact, the Commission has not unequivocally closed even broadcasting to speech of this sort; whether broadcast audi- ences in the late evening contain so few chil- dren that playing this monologue would be per- missible is an issue neither the Commission nor this Court has decided. 3041 Aruba -du, ruba-tu, ruba-tu. I was think- ing about the curse words and the swear words, the cuss words and the words that you can't say, that you're not supposed to say all the time, [']cause words or people into words want to hear your words. Some guys like to record your words and sell them back to you if they can, (laughter) listen in on the telephone, write down what words you say. A guy who used to be in Washington, knew that his phone was tapped, used to answer, Fuck Hoover, yes, go ahead. (laughter) Okay, I was thinking one night about the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever, [']cause I heard a lady say bitch one night on televi- sion, and it was cool like she was talking about, you know, ah, well, the bitch is the first one to notice that in the litter dohnie right (murmur) Right. And, uh, bastard you can say, and hell and damn so I have to figure out which ones you couldn't and ever and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself. The original seven words were, shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon. (laughter) And now the first thing that we noticed was that work fuck was really repeated in there because the word motherfucker is a compound word and it's another form of the word fuck. (laughter) You want to be a purist itJjoesn't really—it can't be on the list of basic words. Also, cocksucker is a compound word and neither half of that is really dirty. The word—the half sucker 29. Even a prime -time recitation of Geoffrey Chaucer's Miller's Tale would not be likely to command the attention of many children who are both old enough to understand and young enough to be adversely affected by passages such as: "And prively he caughte hire by the queynte." The Canterbury Tales, Chaucer's Complete Works (Cambridge ed. 1933). p. 58, 1. 3276: 3042 98 SUPREME CO APPENDIX—Continued that's merely suggestive (laughter) and the word cock is a half -way dirty word, 50% dirty—dirty half the time, depending on what you mean by it. (laughter) Uh, re- member when you first heard it, like in 6th grade, you used to giggle. And the cock crowed three times, heh (laughter) the cock—three times. It's in the Bible, cock in the Bible. (laughter) And the first time you heard about a cock -fight, remember— What? Huh? naw. It ain't that, are you stupid? man. (laughter, clapping) It's chickens, you know, (laughter) Then you have the four letter words from the old Angle -Saxon fame. Uh,' shit and fuck. The word shit, uh, is an interesting kind of word in that the middle class has never really accepted it and approved it. They use it like, crazy but it's not really okay. It's still a rude, dirty, old kind of gushy word. (laughter) They don't like that, but they say it, like, they say it like, a lady now in a middle-class home, you'll hear most of the time she says it as an expletive, you know, it's out of her mouth before she knows. She says, Oh shit oh shit, (laughter) oh shit. If she drops something, Oh, the shit hurt the broccoli. Shit. Thank you. (footsteps fading away) (papers ruffling) Read it! (from audience) Shit! (laughter) I won the Grammy, man, for the comedy album. Isn't that groovy? (clapping, whistling) (murmur) That's true. Thank you. Thank you man. Yeah. (murmer) (continuous clapping) Thank you man. Thank you. Thank you very much, man. Thank, no, (end of contin- uous clapping) for that and for the Gram- my, man, [']cause (laughter) that's based on people liking it man, yeh, that's ah, that's okay man. (laughter) Let's let that go, man. I got my Grammy. I can let my hair hang down now, shit. (laughter) Ha! So! Now the word shit is okay for the man. At work you can say it like crazy. Mostly 1153 figuratively, Get that shit out of here,Lwill ya? I don't want to see that shit anymore. I can't cut that shit, buddy. I've had that shit up to here. I think you're full of shit URT REPORTER 438 U.S. 752 myself. (laughter) He don't know shit from Shinola. (laughter) you know that? (laughter) Always wondered how the Shi- nola people felt about that (laughter) Hi, I'm the new man from Shinola, (laughter) Hi, how are ya? Nice to see ya. (laughter) How are ya? (laughter) Boy, I don't know whether to shit or wind my watch. (laugh- ter) Guess, I'!! shit on my watch. (laugh- ter) Oh, the shit is going to hit de fan. (laughter). Built like a brick shit -house. (laughter) Up, he's up shit's creek. (laugh- ter) He's had it. (laughter) He hit me, I'm sorry. (laughter) Hot shit, holy shit, tough shit, eat shit. (laughter) shit -eating grin. Uh, whoever thought of that was ill. (murmur laughter) He had a shit -eating grin! He had a what? (laughter) Shit on a stick. (laughter) Shit in a handbag. I always like that. He ain't worth shit in a handbag. (laughter) Shitty. He acted real shitty. (laughter) You know what I mean? (laughter) I got the money back, but a real shitty attitude. Heh, he had a shit -fit. (laughter) Wow! Shit -fit. Whew! Glad I wasn't there. (murmur, laughter) All the animals—Bull shit, hor- seshit, cow shit, rat shit, bat shit. (laugh- ter) First time I heard bat shit, I really came apart. A guy in Oklahoma, Boggs, said it, man. Aw! Bat shit. (laughter) Vera reminded me of that last night, ah (murmur). Snake shit, slicker than owl shit. (laughter) Get your shit together. Shit or get off the pot. (laughter) I got a shit -load full of them. (laughter) I got a shit -pot full, all right. Shit -head, shit -heel, shit in your heart, shit for brains, (laughter) shit -face, heh (laughter) I always try to think how that could have originated; the first guy that said that. Somebody got_ drunk and fell in some shit, you know. (laughter) Hey, I'm shit -face. (laughter)' Shit -face, today. (laughter) Anyway, enough of that shit. (laughter) The big one, the word fuck that's the one that' hangs them up the most. [']Cause in a lot of cases that's the very act thatjhangs them up the most. So, it's natural that the word would, uh, have the same effect. It's' a great word, fuck, nice word, easy word cute word, kind of. Easy word to say. One 438 U.S. 756 F. C. C. v. PACIFICA FOUNDATION Cite as 98 S.Ct. 3026 (1978) APPENDIX—Continued shit me, would you? (laughter) That's a syllable, short u. (laughter) Fuck. (Mur- joke when you're a kid with a worm looking mur) You know, it's easy. Starts with a out the bird's ass. You wouldn't shit me, nice soft sound fuh ends with a kuh. would you? (laughter) It's an eight -year - 3043 Right? (laughter) A little something for everyone. Fuck (laughter) Good word. Kind of a proud word, too. Who are you? I .am FUCK, (laughter) FUCK OF THE MOUNTAIN. (laughter) Tune in again next week to FUCK OF THE MOUNTAIN. (laughter) It's an interesting word too, [']cause it's got a double kind of a life—per- sonality—dual, you know, whatever the right phrase is. It leads a double life, the word fuck. First of all, it means, some- times, most of the time, fuck. What does it mean? It means to make love. Right? We're going to make love, yeh, we're going to fuck, yeh, we're going to fuck, yeh, we're going to make love. (laughter) we're really going to fuck, yeh, we're going to make love. Right? And it also means the begin- ning of life, it's the act that begins life, so there's the word hanging around with words like love, and life, and yet on the other hand, it's also a word that we really use to hurt each other with, man. It's a heavy. It's one that you have toward the end of the argument. (laughter) Right? (laughter) You finally can't make out. Oh, fuck you man. I said, fuck you. (laughter, murmur) Stupid fuck. (laughter) Fuck you and everybody that looks like you. (laughter) man. It would be nice to change the movies that we already have and substi- tute the word fuck for the word kill, wher- ever we could, and some of those movie cliches would change a little bit. Madfuck- ers still on the loose. Stop me before I fuck `again. Fuck the ump, fuck the ump, fuck the ump, fuck the ump, fuck the ump. Easy on the clutch Bill, you'll fuck that engine again. (laughter) The other shit one was, I don't give a shit. Like it's worth something, you know? (laughter) I don't give a shit. Hey, well, I don't take no shit, (laughter) you know what I mean? You know why I don't take no shit? (laughter) -iss 1j']Cause I don't give a shit. (laughter) If I give a shit, I would have to pack shit. (laughter) But I don't pack no shit cause I don't give a shit. (laughter) You wouldn't old joke but a good one. (laughter) The additions to the list. I found three more words that had to be put on the list of words you could never say on television, and they were fart, turd and twat, those three. (laughter) Fart, we talked about, it's harmless. It's like tits, it's a cutie word, no problem. Turd, you can't say but who wants to, you know? (laughter) The sub- ject never comes up on the panel so I'm not worried about that one. Now the word twat is an interesting word. Twat! Yeh, right in the twat. (laughter) Twat is an interesting word because it's the only one I know of, the only slang word applying to the, a part of the sexual anatomy that doesn't have another meaning to it. Like, ah, snatch, box and pussy all have other meanings, man. Even in a Walt Disney movie, you can say, We're going to snatch that pussy and put him in a box and bring him on the airplane. (murmer, laughter) Everybody loves it. The twat stands alone, man, as it should. And two-way words. Ah, ass is okay providing you're riding into town on a religious feast day. (laughter) You can't say, up your ass. (laughter) You can say, stuff it! (murmur) There are certain things you can say its weird but you can just come so close. Before I cut, I, uh, want to, ah, thank you for listening to my words, man, fellow, uh space travelers. Thank you man for tonight and thank you also. (clapping whistling) Mr. Justice POWELL, with whom Mr. Justice BLACKMUN joins, concurring in part and concurring in the judgment. I join Parts I, II, III, and IV -C of Mr. Justice STEVENS' opinion. The Court to- day reviews only the Commission's holding that Carlin's monologue was indecent "as broadcast'jt two o'clock in the afternoon, and not the broad sweep of the Commis- sion's opinion. Ante, at 3032-3033. In ad- dition to being consistent with our settled practice of not deciding constitutional issues 3044 98 SUPREME COURT REPORTER unnecessarily, see ante, at 3032; Ashwan- der v. TVA, 297 U.S. 288, 345-348, 56 S.Ct. 466, 482-484, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), this narrow focus also is conducive to the orderly development of this relatively new and difficult area of law, in the first instance by the Commission, and then by the reviewing courts. See 181 U.S. App.D.C. 132, 158-160, 556 F.2d 9, 35-37 (1977) (Leventhal, J., dissenting). I also agree with much that is said in Part IV of Mr. Justice STEVENS' opinion, and with its conclusion that the Commis- sion's holding in this case does not violate the First Amendment. Because I do not subscribe to all that is said in Part IV, however, I state my views separately. It is conceded that the monologue at issue here is not obscene in the constitutional sense. See 56 F.C.C.2d 94, 98 (1975); Brief for Petitioner 18. Nor, in this context, does its language constitute "fighting words" within the meaning of Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Some of the words used have been held protected by the First Amendment in other cases and contexts. E. g., Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973); Papish v. University of Missouri Curators, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973); Cohen v. Cali- fornia, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); see also Eaton v. Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974). I do not think Carlin, consistently with the First Amendment, could be punished for delivering the same monologue to a live audience composed of adults who, knowing what to expect, chose to attend his perform- ance. See Brown v. Oklahoma, 408 U.S. 914, 92 S.Ct. 2507, 33 L.Ed.2d 326 (1972) (POWELL, J., concurring in result). And I 1. See generally Judge Leventhal's thoughtful opinion in the Court of Appeals. 181 U.S.App. 438 U.S. 756 would assume that an adult could not con- stitutionally be prohibited from purchasing a recording or transcript of the monologue wand playing or reading it in the privacy of his own home. Cf. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). But it also is true that the language employed is, to most people, vulgar and offensive. It was chosen specifically for this quality, and it was repeated over and over as a sort of verbal shock treatment. The Commission did not err in characteriz- ing the narrow category of language used here as "patently offensive" to most people regardless of age. The issue, however, is whether the Com- mission may impose civil sanctions on a licensee radio station for broadcasting the monologue at two o'clock in the afternoon. The Commission's primary concern was to prevent the broadcast from reaching the ears of unsupervised children who were likely to be in the audience at that hour. In essence, the Commission sought to "chan- nel" the monologue to hours when the few- est unsupervised children would be exposed to it. See 56 F.C.C.2d, at 98. In my view, this consideration provides strong support for the Commission's holding.l The Court has recognized society's right to "adopt more stringent controls on com- municative materials available to youths than on those available to adults." Erznoz- nik v. Jacksonville, 422 U.S. 205, 212, 95 S.Ct. 2268, 2274, 45 L.Ed.2d 125 (1975); see also, e. g., Miller v. California, 413 U.S. 15, 36 n. 17, 93 S.Ct. 2607, 2621, 37 L.Ed.2d 419 (1973); Ginsberg v. New York, 390 U.S. 629, 636-641, 88 S.Ct. 1274, 1278-1282, 20 L.Ed.2d 195 (1968); Jacobellis v. Ohio, 378 U.S. 184, 195, 84 S.Ct. 1676, 1682, 12 L.Ed.2d 793 (1964) (opinion of BRENNAN, J.). This recognition stems in large part from the fact that "a child . . . is not pos- sessed of that full capacity for individual choice which is the presupposition of First D.C. 132, 155-158, 556 F.2d 9, 32-35 (1977) (dissenting opinion). 438 U.S. 759 F. C. C. v. PACIFICA FOUNDATION 3045 Cite as 98 S.Ct. 3026 (1978) Amendment guarantees." Ginsberg v. New York, supra, 390 U.S., at 649-650, 88 S.Ct., at 1286 (STEWART, J., concurring in re- sult). Thus, children may not be able to protect themselves from speech which, al- though shocking to most adults, generally 1ss may be avoided by the unwilling_n_hrough the exercise of choice. At the same time, such speech may have a deeper and more lasting negative effect on a child than on an adult. For these reasons, society may pre- vent the general dissemination of such speech to children, leaving to parents the decision as to what speech of this kind their children shall hear and repeat: "[C]onstitutional interpretation has con- sistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. `It is .cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obliga- tions the state can neither supply nor hinder.' Prince v. Massachusetts, [321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944)]. The legislature could properly conclude that parents and others, teach- ers for example, who have this primary responsibility for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility." Id., at 639, 88 S.Ct., at 1280. The Commission properly held that the speech from which society may attempt to shield its children is not limited to that which appeals to the youthful prurient in- terest. The language involved in this case is as potentially degrading and harmful to children as representations of many erotic acts. In most instances, the dissemination of this kind of speech to children may be limit- ed without also limiting willing adults' ac- cess to it. Sellers of printed and recorded matter and exhibitors of motion pictures and live performances may be required to shut their doors to children, but such a requirement has no effect on adults' access. See id., at 634-635, 88 S.Ct., at 1277-1278. The difficulty is that such a physical sepa- ration of the audience cannot be accom- plished in the broadcast media. During most of the broadcast hours, both adults and unsupervised children are likely to be in the broadcast audience, and the broadcaster cannot reach willing adults without also reaching i hildren. This, as the Court em- _lls9 phasizes, is one of the distinctions between the broadcast and other media to which we often have adverted as justifying a differ- ent treatment of the broadcast media for First Amendment purposes. See Bates v. State Bar of Arizona, 433 U.S. 350, 384, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977); Co- lumbia Broadcasting System, Inc. v. Demo- cratic National Committee, 412 U.S. 94, 101, 93 S.Ct. 2080, 2086, 36 L.Ed.2d 772 (1973); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386-387, 89 S.Ct. 1794, 1804-1805, 23 L.Ed.2d 371 (1969); Capital Broadcasting Co. v. Mitchell, 333 F.Supp. 582 (DC 1971), aff'd sub nom. Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000, 92 S.Ct. 1289, 31 L.Ed.2d 472 (1972); see gen- erally Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-503, 72 S.Ct. 777, 780-781, 96 L.Ed. 1098 (1952). In my view, the Com- mission was entitled to give substantial weight to this difference in reaching its decision in this case_ A second difference, not without rele- vance, is that broadcasting -unlike most other forms of communication -comes di- rectly into the home, the one place where people ordinarily have the right not to be assaulted by uninvited and offensive sights and sounds. Erznoznik v. Jacksonville, su- pra, 422 U.S., at 209, 95 S.Ct., at 2272; Cohen v. California, 403 U.S., at 21, 91 S.Ct., at 1786; Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). Although the First Amendment may require unwilling adults to absorb the first blow of offensive but protected speech when they are in public before they turn away, see, e. g., Erznoznik, supra, 422 U.S., at 210-211, 95 S.Ct., at 2273-2274; but cf. Rosenfeld v. New Jersey, 408 U.S. 901, 903- 3046 98 SUPREME COURT REPORTER 909, 92 S.Ct. 2479-2481, 33 L.Ed.2d 321 (1972) (POWELL, J., dissenting), a differ- ent order of values obtains in the home. "That we are often `captives' outside the sanctuary of the home and subject to objec- tionable speech and other sound does not mean we must be captives everywhere." Rowan v. Post Office Dept., supra, 397 U.S., at 738, 90 S.Ct., at 1491. The Commission also was entitled to give this factor appro- priate weight in the circumstances of the instant case. This is not to say, however, that the Commission has an unrestricted license to decide what speech, protected in other media, may be banned from the air- Jjso waves in order to protect1unwilling adults from momentary exposure to it in their homes.2 Making the sensitive judgments required in these cases is not easy. But this responsibility has been reposed initially in the Commission, and its judgment is enti- tled to respect. It is argued that despite society's right to protect its children from this kind of speech, and despite everyone's interest in not being assaulted by offensive speech in the home, the Commission's holding in this case is impermissible because it prevents willing adults from listening to Carlin's monologue over the radio in the early afternoon hours. It is said that this ruling will have the effect of "reduc[ing] the adult population . . . to [hearing] only what is fit for children." Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed.2d 412 (1957). This argument is notwithout force. The Commission certainly should consider it as it develops standards in this area. But it is not sufficiently strong to leave the Commis- sion powerless to act in circumstances such as those in this case. 2. It is true that the radio listener quickly may tune out speech that is offensive to him. In addition, broadcasters may preface potentially offensive programs with warnings. But such warnings do not help the unsuspecting listener who tunes in at the middle of a program. In this respect, too, broadcasting appears to differ from books and records, which may carry warnings on their face, and from motion pic- The Commission's holding does not pre-. vent willing adults from purchasing Carlin's record, from attending his performances, or, indeed, from reading the transcript reprint- ed as an appendix to the Court's opinion. On its face, it does not prevent respondent Pacifica Foundation from broadcasting the monologue during late evening hours when fewer children are likely to be in the audi- ence, nor from broadcasting discussions of the contemporary use of language at any time during the day. The Commission's holding, and certainly the Court's holding today, does not speak to cases involving the isolated] se of a potentially offensive word ,.j76i in the course of a radio broadcast, as distin- guished from the verbal shock treatment administered by respondent here. In short, I agree that on the facts of this case, the Commission's order did not violate respon- dent's First Amendment rights. II As the foregoing demonstrates, my views are generally in accord with what is said in Part IV -C of Mr. Justice STEVENS' opin- ion. See ante, at 3039-3041. I therefore join that portion of his opinion. I do not join Part IV -B, however, because I do not subscribe to the theory that the Justices of this Court are free generally to decide on the basis of its content which speech pro- tected by the First Amendment is most "valuable" and hence deserving of the most protection, and which is less "valuable" and hence deserving of less protection. Com- pare ante, at 3037-3040; Young v. Ameri- can Mini Theatres, Inc., 427 U.S. 50, 63-73, 96 S.Ct. 2440, 2448-2454, 49 L.Ed.2d 310 (1976) (opinion of Stevens, J.), with id., at 73 n. 1, 96 S.Ct., at 2453 (Powell, J., concur- ring)? In my view, the result in this case tures and live performances, which may carry warnings on their marquees. 3. The Court has, however, created a limited exception to this rule in order to bring commer- cial speech within the protection of the First Amendment. See Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455-456, 98 S.Ct. 1912, 1918-1919, 56 L.Ed.2d 444 (1978). 438 U.S. 763 F. C. C. v. PACIFICA FOUNDATION 3047 Cite as 98 S.Ct. 3026 (1978) on the whole of the American people so misguided, that I am unable to remain si- lent. does not turn on whether Carlin's mono- logue, viewed as a whole, or the words that constitute it, have more or less "value" than a candidate's campaign speech. This is a judgment for each person to make, not one for the judges to impose upon him.° 162 1The result turns instead on the unique characteristics of the broadcast media, com- bined with society's right to protect its chil- dren from speech generally agreed to be inappropriate for their years, and with the interest of unwilling adults in • not being assaulted by such offensive speech in their homes. Moreover, I doubt whether today's decision will prevent any adult who wishes to receive Carlin's message in Carlin's own words from doing so, and from making for himself a value judgment as to the merit of the message and words. Cf. Id., at 77-79, 96 S.Ct., at 2455-2457 (POWELL, J., con- curring). These are the grounds upon which I join the judgment of the Court as to Part IV. Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL joins, dissenting. I agree with Mr. Justice STEWART that, under Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), and United States v. 12 200 -ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), the word "indecent" in 18 U.S.C. § 1464 (1976 ed.) must be construed to pro- hibit only obscene speech. I would, there- fore, normally refrain from expressing my views on any constitutional issues implicat- ed in this case. However, I find the Court's misapplication of fundamental First Amendment principles so patent, and its attempt to impose its notions of propriety 4. For much the same reason, I also do not join Part IV -A. I had not thought that the applica- tion vel non of overbreadth analysis should depend on the Court's judgment as to the value of the protected speech that might be deterred. Cf. ante, at 3037. Except in the context of commercial speech, see Bates v. State Bar of Arizona, 433 U.S. 350, 380-381, 97 S.Ct. 2691, 2707-2708, 53 L.Ed.2d 810 (1977), it has not in the past. See, e. g., Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). For the second time in two years, see Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), the Court refuses to embrace the notion, completely antithetical to basic First Amendment values, that the degree of pro- tection the Firstj_Amendment affords pro- _Lisa tected speech varies with the social value ascribed to that speech by five Members of this Court. See opinion of Mr. Justice POWELL, ante, at 3046-3047. Moreover, as do all parties, all Members of the Court agree that the Carlin monologue aired by Station WBAI does not fall within one of the categories of speech, such as "fighting words," Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), or obscenity, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), that is totally without First Amend- ment protection. This conclusion, of course, is compelled by our cases expressly holding that communications containing some of the words found condemnable here are fully protected by the First Amendment in other contexts. See Eaton v. Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974); Papish v. University of Missouri Curators, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (1973); Brown v. Oklahoma, 408 U.S. 914, 92 S.Ct. 2507, 33 L.Ed.2d 326 (1972); Lewis v. New Orleans, 408 U.S. 913, 92 S.Ct. 2499, 33 L.Ed.2d 321 (1972); Rosenfeld v. New Jer- sey, 408 U.S. 901, 92 S.Ct. 2479, 33 L.Ed.2d As Mr. Justice STEVENS points out, how- ever, ante, at 3032, the Commission's order was limited to the facts of this case; "it did not purport to engage in formal rulemaking or in the promulgation of any regulations." In addi- tion, since the Commission may be expected to proceed cautiously, as it has in the past, cf. Brief for Petitioner 42-43, and n. 31, I do not foresee an undue "chilling" effect on broad- casters' exercise of their rights. I agree, there- fore, that respondent's overbreadth challenge is meritless. 3048 98 SUPREME CO 321 (1972); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Yet despite the Court's refusal to create a slid- ing scale of First Amendment protection calibrated to this Court's perception of the worth of a communication's content, and despite our unanimous agreement that the Carlin monologue is protected speech, a ma- jority of the Court 1 nevertheless finds that, on the facts of this case, the FCC is not constitutionally barred from imposing sanc- tions on Pacifica for its airing of the Carlin monologue. This majority apparently be- lieves that the FCC's disapproval of Pacifi- ca's afternoon broadcast of Carlin's "Dirty Words" recording is a permissible time, place, and manner regulation. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (1949). Both the opinion of my Brother STEVENS and the opinion of my Brother POWELL rely principally on two factors in reaching this conclusion: (1) the capacity of a radio broadcast to intrude into the unwill- _1264 ing listener's home,Lnd (2) the presence of children in the listening audience. Dispas- sionate analysis, removed from individual notions as to what is proper and what is not, starkly reveals that these justifications, whether individually or together, simply do not support even the professedly moderate degree of governmental homogenization of radio communications—if, indeed, such homogenization can ever be moderate given the pre-eminent status of the right of free speech in our constitutional scheme—that the Court today permits. A Without question, the privacy interests of an individual in his home are substantial and deserving of significant protection. In finding these interests sufficient to justify the content regulation of protected speech, however, .the Court commits two errors. First, it misconceives the nature of the pri- vacy interests involved where an individual 1. Where I refer without differentiation to the actions of "the Court," my reference is to this majority, which consists of my Brothers POW- URT REPORTER 438 U.S. 763 voluntarily chooses to admit radio commu- nications into his home. Second, it ignores the constitutionally protected interests of both those who wish to transmit and those who desire to receive broadcasts that many—including the FCC and this Court— might find offensive. "The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being in- vaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections." Cohen v. California, supra, 403 U.S., at 21, 91 S.Ct., at 1786. I am in wholehearted agreement with my Brethren that an individual's right "to be let alone" when engaged in private activity within the confines of his own home is encompassed within the "substantial privacy interests" to which Mr. Justice Harlan referred in Cohen, and is entitled to the greatest solicitude. Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). However, I believe that an individual's actions in switching onaand listening to communica- 766. tions transmitted over the public airways and directed to the public at large do not implicate fundamental privacy interests, even when engaged in within the home. Instead, because the radio is undeniably a public medium, these actions are more prop- erly viewed as a decision to take part, if only as a listener, in an ongoing public discourse. See Note, Filthy Words, the FCC, and the First Amendment: Regulat- ing Broadcast Obscenity, 61 Va.L.Rev. 579, 618 (1975). Although an individual's deci- sion to allow public radio communications into his home undoubtedly does not abro- gate all of his privacy interests, the residual privacy interests he retains vis-a-vis the communication he voluntarily admits into ELL and STEVENS and those Members of the Court joining their separate opinions. 438 U.S. 767 F. C. C. v. PACIFICA FOUNDATION Clte as 98 S.Ct 3026 (1978) The Court's balance, of necessity, fails to accord proper weight to the interests of listeners who wish to hear broadcasts the FCC deems offensive. It permits majori- tarian tastes completely to preclude a pro- tected message from entering the homes of a receptive, unoffended minority. No deci- sion of this Court supports such a result. Where the individuals constituting the of- fended majority may freely choose to reject the material being offered, we have never found their privacy interests of such mo- ment to warrant the suppression of speech on privacy grounds. Cf. Lehman v. Shaker Heights, supra. Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970), relied on by the FCC and by the opinions of my Brothers POW - ELL and STEVENS, confirms rather than belies this conclusion. In Rowan, the Court upheld a statute, 39 U.S.C. § 4009 (1964 ed., Supp. IV), permitting householders to re- quire that mail advertisers stop sending them lewd or offensive materials and re- move their names from mailing lists. Un- like the situation here, householders who wished to receive the sender's communica- tions were not prevented from doing so. Equally important, the determination of of- fensiveness vel non under the statute in- volved in Rowan was completely within the hands of the individual householder; no governmental evaluation of the worth of the mail's content stood between the mailer and the householder. In contrast, the vis- age of the censor is all too discernible here. 3049 his home are surely no greater than those of the people present in the corridor of the Los Angeles courthouse in Cohen who bore witness to the words "Fuck the Draft" em- blazoned across Cohen's jacket. Their pri- vacy interests were held insufficient to jus- tify punishing Cohen for his offensive com- munication. Even if an individual who voluntarily opens his home to radio communications retains privacy interests of sufficient mo- ment to justify a ban on protected speech if those interests are "invaded in an essential- ly intolerable manner," Cohen v. California, supra, 403 U.S., at 21, 91 S.Ct., at 1786, the very fact that those interests are threat- ened only by a radio broadcast precludes any intolerable invasion of privacy; for un- like other intrusive modes of communica- tion, such as sound trucks, "[t]he radio can be turned off," Lehman v. Shaker Heights, 418 U.S. 298, 302, 94 S.Ct. 2714, 2717, 41 L.Ed.2d 770 (1974)—and with a minimum of effort. As Chief Judge Bazelon aptly ob- served below, "having elected to receive public air waives, the scanner who stumbles onto an offensive program is in the same position as the unsuspecting passers-by in Cohen and Erznoznik [v. Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975)]; he can avert his attention by changing channels or turning off the set." 181 U.S.App.D.C. 132, 149, 556 F.2d 9, 26 (1977). Whatever the minimal discomfort J166 suffered by allistener who inadvertently tunes into a program he finds offensive during the brief interval before he can sim- ply extend his arm and switch stations or flick the "off" button, it is surely worth the candle to preserve the broadcaster's right to send, and the right of those interested to receive, a message entitled to full First Amendment protection. ' To reach a con- trary balance, as does the Court, is clearly to follow Mr. Justice STEVENS' reliance on animal metaphors, ante, at 3041, "to burn the house to roast the pig." Butler v. Mich- igan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed.2d 412 (1957). _113 J267 Most parents will undoubtedly find un- derstandable as well as commendable the Court's sympathy with the FCC's desire to prevent offensive broadcasts from reaching the ears of unsupervised children. Unfor- tunately, the facial appeal of this justifica- tion for radio censorship masks its constitu- tional insufficiency. Although the •govern- ment unquestionably has a special interest in the well-being of children and conse- quently "can adopt. more stringent controls on communicative materials available to 3050 98 SUPREME CO youths than on those available to adults," Erznoznik v. Jacksonville, 422 U.S. 205, 212, 95 S.Ct. 2268, 2274, 45 L.Ed.2d 125 (1975);. see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 106-107, 93 S.Ct. 2628, 2659-2660, 37 L.Ed.2d 446 (1973) (BRENNAN, J., dis- senting), the Court has accounted for this societal interest by adopting a "variable obscenity" standard that permits the pru- rient appeal of material available to chil- dren to be assessed in terms of the sexual interests of minors. Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). It is true that the obscenity stan- dard the Ginsberg Court adopted for such materials was based on the then -applicable obscenity standard of Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Memoirs v. Massa- chusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), and that "[w]e have not had occasion to decide what effect Miller [v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)] will have on the Gins- berg formulation." Erznoznik v. Jackson- ville, supra, 422 U.S., at 213 n. 10, 95 S.Ct., at 2275. Nevertheless, we have made it abundantly clear that "under any test of obscenity as to minors . . . to be ob- scene 'such expression must be, in some significant way, erotic.' " 422 U.S., at 213 n. 10, 95 S.Ct., at 2275 n. 10, quoting Cohen v. California, 403 U.S., at 20, 91 S.Ct., at 1785. Because the Carlin monologue is obvious- ly not an erotic appeal to the prurient inter- ests of children, the Court, for the first 2. Even if the monologue appealed to the pru- rient interest of minors, it would not be ob- scene as to them unless, as to them, "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller v. Califor- nia, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973). 3. It may be that a narrowly drawn regulation prohibiting the use of offensive language on broadcasts directed specifically at younger chil- dren constitutes one of the "other legitimate proscription[s]" alluded to in Erznoznik. This is so both because of the difficulties inherent in adapting the Miller formulation to communica- tions received by young children, and because such children are "not possessed of that full URT REPORTER 438 u.s. 767 time, allows the government to prevent mi nors from gaining access to materials that;: are not obscene, and are therefore protect- ed, as to them.2 It thus ignores our recent admoni ion that "[s]peech that is neither ; obscene as to youths nor subject to some other legitimate proscription cannot be sup- pressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them." 422 U.S., at 213-214, 95 S.Ct., at 2275.3 The Court's refusal to follow its own pronouncements is especially lamentable since it has the anom- alous subsidiary effect, at least in the radio context at issue here, of making completely unavailable to adults material which may not constitutionally be kept even from chil- dren. This result violates in spades the principle of Butler v. Michigan, supra. But- ler involved a challenge to a Michigan stat- ute that forbade the publication, sale, or distribution of printed material "tending to incite minors to violent or depraved or im- moral acts, manifestly tending to the cor- ruption of the morals of youth." 352 U.S., at 381, 77 S.Ct., at 525. Although Roth v. United States, supra, had not yet been de- cided, it is at least arguable that the mate- rial the statute in Butler was designed to suppress could have been constitutionally denied to children. Nevertheless, this Court_ffound the statute unconstitutional. Jj Speaking for the Court, Mr. Justice Frank- furter reasoned: "The incidence of this enactment is to reduce the adult population of Michigan to reading only what is fit for children. It thereby arbitrarily curtails one of those capacity for individual choice which is the pre- supposition of the First Amendment guaran- tees." Ginsberg v. New York, 390 U.S. 629, 649-650, 88 S.Ct. 1274, 1286, 20 L.Ed.2d 195 (1968) (STEWART, J., concurring). 1 doubt, as my Brother STEVENS suggests, ante, at 3038 n. 20, that such a limited regulation amounts to a regulation of speech based on its content, since, by hypothesis. the only persons at whom the regulated communication is directed are incapable of evaluating its content. To the extent that such a regulation is viewed as a regulation based on content, it marks the outer- most limits to which content regulation is per- missible. 438 U.S. 771 F. C. C. v. PACIFIC Cite as 98 S.C1. liberties of the individual, now enshrined in the Due Process Clause of the Four- teenth Amendment, that history has at- tested as the indispensable conditions for the maintenance- and progress of a free society." 352 U.S., at 383-384, 77 S.Ct., at 526. Where, as here, the government may not prevent the exposure of minors to the sup- pressed material, the principle of Butler applies a fortiori. The opinion of my Broth- er POWELL acknowledges that there lurks in today's decision a potential for "'re- duc[ing] the adult population . . . to [hearing] only what is fit for children,' " ante, at 3046, but expresses faith that the FCC will vigilantly prevent this potential from ever becoming a reality. I am far less certain than my Brother POWELL that such faith in the Commission is warranted, see Illinois Citizens Committee for Broad- casting v. FCC, 169 U.S.App.D.C. 166, 187- 190, 515 F.2d 397, 418-421 (1975) (statement of Bazelon, C. J., as to why he voted to grant rehearing en bane); and even if I shared it, I could not so easily shirk the responsibility assumed by each Member of this Court jealously to guard against en- croachments on First Amendment free- doms. In concluding that the presence of chil- dren in the listening audience provides an adequate basis for the FCC to impose sanc- tions for Pacifica's broadcast of the Carlin monologue, the opinions of my Brother POWELL, ante, at 3044-3045, and my Brother STEVENS, ante, at 3040-3041, both stress the time-honored right of a par- ent to raise his child as he sees fit -a right this Court has consistently been vigilant to protect. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925). Yet this _lin principle supports ajresult directly contrary 4. The opinions of my Brothers POWELL and STEVENS rightly refrain from relying on the notion of "spectrum scarcity" to support their result. As Chief Judge Bazelon noted below, "although scarcity has justified increasing the diversity of speakers and speech, it has never A FOUNDATION 3051 3026 (1978) to that reached by the Court. Yoder and Pierce hold that parents, not the govern- ment, have the right to make certain deci- sions regarding the upbringing of their chil- dren. As surprising as it may be to individ- ual Members of this Court, some parents may actually find Mr. Carlin's unabashed attitude towards the seven "dirty words" healthy, and deem it desirable to expose their children to the manner in which Mr. Carlin defuses the taboo surrounding the words. Such parents may constitute a mi- nority of the American public, but the ab- sence of great numbers willing to exercise the right to raise their children in this fash- ion does not alter the right's nature or its existence. Only the Court's regrettable de- cision does that.° C As demonstrated above, neither of the factors relied on by both the opinion of my Brother POWELL and the opinion of my Brother STEVENS-the intrusive nature of radio and the presence of children in the listening audience -can, when taken on its own terms, support the FCC's disapproval of the Carlin monologue. These two assert- ed justifications are further plagued by a common failing: the lack of principled lim- its on their use as a basis for FCC censor- ship. No such limits come readily to mind, and neither of the opinions constituting the Court serve to clarify the extent to which the FCC may assert the privacy and chil- dren -in -the -audience rationales as justifica- tion for expunging from the airways pro- tected communications the Commission finds offensive. Taken to their logical ex- treme, these rationales would support the cleansing of publicjiadio of any "four-letter words" whatsoever, regardless of their con- text. The rationales could justify the ban- ning from radio of a myriad of literary works, novels, poems, and plays by the likes of Shakespeare, Joyce, Hemingway, Ben been held to justify censorship." 181 U.S.App. D.C., at 152, 556 F.2d, at 29 (emphasis in origi- nal). See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 396, 89 S.Ct. 1794, 1809, 23 L.Ed.2d 371 (1969). 3052 98 SUPREME CO Jonson, Henry Fielding, Robert Burns, and Chaucer; they could support the suppres- sion of a good deal of political speech, such as the Nixon tapes; and they could even provide the basis for imposing sanctions for the broadcast of certain portions of the Bible.5 In order to dispel the specter of the possi- bility of so unpalatable a degree of censor- ship, and to defuse Pacifica's overbreadth challenge, the FCC insists that it desires only the authority to reprimand a broad- caster on facts analogous to those present in this case, which it describes as involving "broadcasting for nearly twelve minutes a record which repeated over and over words which depict sexual or excretory activities and organs in a manner patently offensive by its community's contemporary standards in the early afternoon when children were in the audience." Brief for Petitioner 45. The opinions of both my Brother POWELL and my Brother STEVENS take the FCC at its word, and consequently do no more than permit the Commission to censor the after- noon broadcast of the "sort of verbal shock treatment," opinion of Mr. Justice POW - ELL, ante, at 3044, involved here. To in- sure that the FCC's regulation of protected 5. See, e. g., I Samuel 25:22: "So and more also do God unto the enemies of David, if 1 leave of all that pertain to him by the morning light any that pisseth against the wall"; 11 Kings 18:27 and Isaiah 36:12: "[Math he not sent me to the men which sit on the wall, that they may eat their own dung. and drink their own piss with you?"; Ezekiel 23:3: "And they committed whoredoms in Egypt; they committed whore- doms in their youth; there were their breasts pressed, and there they bruised the teats of their virginity.": Ezekiel 23:21: "Thus thou cal- ledst to remembrance the lewdnes of thy youth, in bruising thy teats by the Egyptians for the paps of thy youth." The Holy Bible (King James Version) (Oxford 1897). 6. Although ultimately dependent upon the out- come of review in this Court, the approach taken by my Brother STEVENS would not ap- pear to tolerate the FCC's suppression of any speech, such as political speech, falling within the core area of First Amendment concern. The same, however, cannot be said of the ap- proach taken by my Brother POWELL, which, on its face, permits the Commission to censor even political speech if it is sufficiently offen- URT REPORTER 438 U.S. 771 speech does not exceed these bounds, iii Brother POWELL is content to rely upon the judgment of thejCommission while my Brother STEVENS deems it prudent to rely on this Court's ability accurately to assess the worth of various kinds of speech.6 For my own part, even accepting that this case is limited to its facts,? I would place the responsibility and the right to weed worth- less and offensive communications from the public airways where it belongs and where, until today, it resided: in a public free to choose those communications worthy of its attention from a marketplace unsullied by the censor's hand. II The absence of any hesitancy in the opin- ions of my Brothers POWELL and STE- VENS to approve the FCC's censorship of the Carlin monologue on the basis of two demonstrably inadequate grounds is a func- tion of their perception that the decision will result in little, if any, curtailment of communicative exchanges protected by the First Amendment. Although the extent to jwhich the Court stands ready to counte- nance FCC censorship of protected speech is unclear from today's decision, I find the reasoning by which my Brethren conclude sive to community standards. A result more contrary to rudimentary First Amendment prin- ciples is difficult to imagine. 7. Having insisted that it seeks to impose sanc tions on radio communications only in the lim- ited circumstances present here, I believe that the FCC is estopped from using either this'• decision or its own orders in this case, 56 F.C.C.2d 94 (1975) and 59 F.C.C.2d 892 (1976),' as a basis for imposing sanctions on any public radio broadcast other than one aired during the - daytime or early evening and containing the relentless repetition, for longer than a brief interval, of "language that describes, in terms patently offensive as measured by contempo- rary community standards for the broadcast medium, sexual or excretory activities and or- gans." 56 F.C.C.2d, at 98. For surely broad- casters are not now on notice that the Commis:; sion desires to regulate any offensive broadcast other than the type of "verbal shock treat- ment" condemned here, or even this "shock treatment" type of offensive broadcast during the late evening. 438 U.S. 775 F. C. C. v. PACIFI Cite as 98 S.Ct that the FCC censorship they approve will not significantly infringe on First Amend- ment values both disingenuous as to reality and wrong as a matter of law. CA FOUNDATION 3053 .3026 (1978) for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cogni- tive content of individual speech, has lit- tle or no regard for that emotive function which, practically speaking, may often be the more important element of the over- all message sought to be communicated." Id., at 25-26, 91 S.Ct., at 1788. My Brother STEVENS also finds rele- vant to his First Amendment analysis the fact that "[a]dults who feel the need may purchase tapes and records or go to theaters and nightclubs to hear [the tabooed] words." Ante, at 3041 n. 28. My Brother POWELL agrees: "The Commission's hold- ing does not prevent willing adults from purchasing Carlin's record, from attending his performances, or, indeed, from reading the transcript reprinted as an appendix to the Court's opinion." Ante, at 3046. The opinions of my Brethren display both a sad insensitivity to the fact that these alterna- tives involve the expenditure of money, time, and effort that many of those wishing to hear Mr. Carlin's message may not be able to afford, and a naive innocence of the reality that in many cases the medium may well be the message. The Court apparently believes that the FCC's actions here can be analogized to the zoning ordinances upheld in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). For two reasons, it is wrong. First, the zoning ordinances found to pass constitutional muster in Young had valid goals other than the channeling of protected speech. Id., 427 U.S., at 71 n. 34, 96 S.Ct., at 2453 (opinion of STEVENS, J.); id., at 80, 96 S.Ct., at 2457 (POWELL, J., concurring). No such goals are present here. Second, and crucial to the opinions of my Brothers POWELL and STEVENS in Young—opinions, which, as they do in this case, supply the bare five -person majority of the Court—the ordi- nances did not restrict the access of distrib- utors or exhibitors to the market or impair lthe viewing public's access to the regulated Ji75 material. Id., at 62, 71 n. 35, 96 S.Ct., at 2453 (opinion of STEVENS, J.); id., at 77, My Brother STEVENS, in reaching a re- sult apologetically described as narrow, ante, at 3040, takes comfort in his observa- tion that "[a] requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication," ante, at 3037 n. 18, and finds solace in his conviction that "[t]here are few, if any, thoughts that can- not be expressed by the use of less offensive language." Ibid. The idea that the con- tent of a message and its potential impact on any who might receive it can be divorced from the words that are the vehicle for its expression is transparently fallacious. A given word may have a unique capacity to capsule an idea, evoke an emotion, or con- jure up an image. Indeed, for those of us who place an appropriately high value on our cherished First Amendment rights, the word "censor" is such a word. Mr. Justice Harlan, speaking for the Court, recognized the truism that a speaker's choice of words cannot surgically be separated from the ideas he desires to express when he warned that "we cannot indulge the facile assump- tion that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." Cohen v. California, 403 U.S., at 26, 91 S.Ct., at 1788. Moreover, even if an alternative phrasing may communicate a speaker's abstract ideas as effectively as those words he is forbidden to use, it is doubtful that the sterilized message will convey the emotion that is an essential part of so many communications. This, too, was apparent to Mr. Justice Har- lan and the Court in Cohen. "[W]e cannot overlook the Tact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it 1774 conveys not only ideas capable of rela- tively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much 3054 URT REPORTER 438 U.S. 775 98 SUPREME CO 96 S.Ct., at 2455 (POWELL, J., concurring). Again, this is not the situation here. Both those desiring to receive Carlin's message over the radio and those wishing to send it to them are prevented from doing so by the Commission's actions. Although, as my Brethren point out, Carlin's message may be disseminated or received by other means, this is of little consolation to those broad- casters and listeners who, for a host of reasons, not least among them financial, do not have access to, or cannot take advan- tage of, these other means. Moreover, it is doubtful that even those frustrated listeners in a position to follow my Brother POWELL's gratuitous advice and attend one of Carlin's performances or purchase one of his records would receive precisely the same message Pacifica's radio station sent its audience. The airways are capable not only of carrying a message, but also of transforming it. A satirist's mono- logue may be most potent when delivered to a live audience; yet the choice whether this will in fact be the manner in which the message is delivered and received is one the First Amendment prohibits the government from making. III It is quite evident that I find the Court's attempt to unstitch the warp and woof of First Amendment law in an effort to resh- ape its fabric to cover the patently wrong result the Court reaches in this case danger- ous as well as lamentable. Yet there runs throughout the opinions of my Brothers POWELL and STEVENS another vein I find equally disturbing: a depressing inabil- ity to appreciate that in our land of cultural pluralism, there are many who think, act, and talk differently from the Members of this Court, and who do not share their frag- ile sensibilities. It is only an acute ethno- centric myopia that enables the Court to 8. Under the approach taken by my Brother POWELL, the availability of broadcasts about groups whose members constitute such audi- ences might also be affected. Both news broadcasts about activities involving these groups and public affairs broadcasts about approve the censorship of communications solely because of the words they contains jA word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content: according to the circumstances and the time in which it is used." Towne v. Eisner, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372 (1918) (Holmes, J.). The words that the Court and the Commission find so unpalata- ble may be the stuff of everyday conversa- tions in some, if not many, of the innumera- ble subcultures that compose this Nation. Academic research indicates that this is in- deed the case. See B. Jackson, "Get Your Ass in the Water and Swim Like Me" (1974); J. Dillard, Black English (1972); W. Labov, Language in the Inner City: Studies in the Black English Vernacular (1972). As one researcher concluded "[w]ords generally considered obscene like 'bullshit' and 'fuck' are considered neither obscene nor deroga- tory in the [black] vernacular except in particular contextual situations and when used with certain intonations." C. Bins, "Toward an Ethnography of Contemporary African American Oral Poetry," Language and Linguistics Working Papers No. 5, p. 82 (Georgetown Univ. Press 1972). Cf. Keefe v. Geanakos, 418 F.2d 359, 361 (CA1 1969) (finding the use of the word "motherfuck- er" commonplace among young radicals and protesters). Today's decision will thus have its great- •-• est impact on broadcasters desiring to reach, and listening audiences composed of, persons who do not share the Court's view as to which words or expressions are accept-' able and who, for a variety of reasons,-. including a conscious desire to flout majori- tarian conventions, express themselves us-. , ing words that may be regarded as offen- sive by those from different socio-economic backgrounds.8 _an this context, the Court's decision may be seen for what, in the broad er perspective, it really is: another of the: - their concerns are apt to contain interviews. statements, or remarks by group leaders and members which may contain offensive lan- guage to an extent my Brother POWELL finds. unacceptable. 438 U.S. 778 F. C. C. v. PACIFICA FOUNDATION Cite as 98 S.Ct. 3026 (1978) dominant culture's inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking. See Moore v. East Cleveland, 431 U.S. 494, 506-511, 97 S.Ct. 1932, 1939-1942, 52 L.Ed.2d 531 (1977) (BRENNAN, J., concurring). Pacifica, in response to an FCC inquiry about its broadcast of Carlin's satire on "'the words you couldn't say on the public . . airwaves,' " explained that "Car- lin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words." 56 F.C.C.2d, at 95, 96. In confirm- ing Carlin's prescience as a social commen- tator by the result it reaches today, the Court evinces an attitude toward the "seven dirty words" that many others besides Mr. Carlin and Pacifica might describe as "sil- ly." Whether today's decision will similarly prove "harmless" remains to be seen. One can only hope that it will. Mr. Justice STEWART, with whom Mr. Justice BRENNAN, Mr. Justice WHITE, and Mr. Justice MARSHALL join, dissent- ing. 1. 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 Photo- graphs, 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. 2. 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 consti- tutionality even though the Court later in effect held that the statute, otherwise construed, would have been constitutionally valid. Com- pare General Motors Corp. v. District of Co- lumbia, 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. 3055 The Court today recognizes the wise ad- monition that we should "avoid the unnec- essary decision of [constitutional] issues." Ante, at 3033. But it disregards one impor- tant 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 substan- tial.2 Before deciding them, we should be certain that it is necessary to do so. _The statute pursuant to which the Com- mission acted, 18 U.S.C. § 1464 (1976 ed.),3 makes it a federal offense to utter "any obscene, indecent, or profane language by means of radio communication." The Com- mission 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, politi- cal, or artistic value and lacks prurient ap- peal. 56 F.C.C.2d 94, 97-98.4 But this con- struction 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." 3. 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 "inde- cent" in § 1464; the attempt by the Commis- sion 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 circum- vent 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 Broadcast- ing Co., 347 U.S. 284, 290, 74 S.Ct. 593, 597, 98 L.Ed. 699. 4. The Commission did not rely on § 1464's prohibition of "profane" language, and it is thus unnecessary to consider the scope of that term. 3056 98 SUPREME COURT REPORTER Since the Carlin monologue concededly was not '.'obscene," I believe that the Commis- sion 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 consti- tutional power to prohibit speech that J:sjwould 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 Handing 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, las- civious, indecent, filthy or vile article." The Court "construe[d] the generic terms in [§ 1461] to be limited to the sort of 'patent- ly 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.Ed2d 260 (18 U.S.C. §. 1465). Nothing requires the conclusion that the word "indecent" has any meaning in § 1464 5. 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 ap- peals to the prurient interest." United States v. Simpson, 561 F.2d 53, 60 (CA7). 6. 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 dis- cussion of the meaning of "obscene, indecent or profane language." 7. 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. 438 U.S. 77 other than that ascribed to the same word in § 1461.5 Indeed, although the legislative history is largely silent,6 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; jjManual Enterprises v. Day, 370 U.S. 478, 482-484, 487, 82 S.Ct. 1432, 1434-1435, 1437, 8 L.Ed.2d 639 (opin- ion of Harlan, J.).7 And although §§ 1461 and 1464 were originally enacted separate- ly, they were codified together in the Crimi- nal Code of 1948 as part of a chapter enti- tled "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 ob- scene speech.8 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. w KEY NUMBER SYSTEM No.I109, 90th Cong., 2d Sess., 7-8 (1968), U.S.. Code Cong. & Admin.News 1968, p. 1915. 8. This construction is further supported by the. 3. 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 crimi- nal cases, but it is a criminal statute that we must interpret. There cannot be one construc- tion for the Federal Communications Commis- sion and another for the Department of Justice.: If we should give § [1464] the broad construe tion urged by the Commission, the same con -s, would likewise apply in criminal+;; cases." FCC v. American Broadcasting Co. supra, 347 U.S., at 296, 74 S.Ct., at 600. 438 U.S. 782 ALABAMA v. PUGH 3051 ate as 98 S.Ct. 3057 (1978) and unusual punishment in the state prison system since the State had an interest in being dismissed from the action in order to eliminate the danger of being held in con- tempt if it should fail to comply with the mandatory injunction. Const.Ala.1901, § 14; U.S.C.A.Const. Amend. 11; 42 U.S. C.A. § 1983. 438 U.S. 781, 56 L.Ed.2d 1114 State of ALABAMA et al. v. Jerry Lee PUGH et al. No. 77-1107. July 3, 1978. Action was brought to eradicate al- leged cruel and unusual punishment in Ala- bama prison system. The United States District Court for the Middle District of Alabama, 406 F.Supp. 318, granted injunc- tive relief. The Court of Appeals for the Fifth Circuit, 559 F.2d 283; affirmed. Peti- tion for certiorari was filed. The Supreme Court held that: (1) suit against the State and its Board of Corrections was barred by Eleventh Amendment, absent the State's consent to suit, and (2) although there were numerous defendants, question of the State's Eleventh Amendment immunity was not merely academic since the State had an interest in being dismissed from the action in order to eliminate the danger of being held in contempt if it should fail to comply with the mandatory injunction. Petition granted in part, judgment re- versed in part, and case remanded. Mr. Justice Brennan dissented. Mr. Justice Marshall dissented. Mr. Justice Stevens filed dissenting opinion. 1. Federal Courts X268 Suit against State of Alabama and its Board of Corrections to eradicate alleged cruel and unusual punishment in the state prison system was barred by Eleventh Amendment absent the State's consent to suit. U.S.C.A.Const. Amends. 8, 11, 14; Const.Ala.1901, § 14; 42 U.S.C.A. § 1983. 2. Federal Courts X268 Although there were numerous defend- ants, question of Alabama's Eleventh Amendment immunity was not merely aca- demic in action to eradicate alleged cruel PER CURIAM. Respondents, inmates or former inmates of the Alabama prison system, sued peti- tioners, who include the State of Alabama and the Alabama Board of Corrections as well as a number of Alabama officials re- sponsible for the administration of its pris- ons, alleging that conditions in Alabama prisons constituted cruel and unusual pun- ishment in violation of the Eighth and Fourteenth Amendments. The United States District Court agreed and issued an order prescribing measures designed to eradicate cruel and unusual punishment in the Alabama prison system. The Court of Appeals for the Fifth Circuit affirmed but modified some aspects of the order which it believed exceeded the limits of the appro- priate exercise of the court's remedial pow- ers. 559 F.2d 283. [1, 2] Among the claims raised here by petitioners is that the issuance of a manda- tory injunction against the State of Ala- bama and the Alabama, Board of Correc- tions is unconstitutional because the Elev- enth Amendment prohibits federal courts from entertaining suits by private parties against States and their agencies. The Court of Appeals did not address this con-' tention, perhaps because it was of the view that in light oflthe numerous individual defendants in the case dismissal as to these two defendants would not affect the scope of the injunction. There can be no doubt, however, that suit against the State and its Board of Corrections is barred by the Elev- enth Amendment, unless Alabama has con- sented to the filing of such a suit. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Ford Motor Co. v. De-