The Supreme Court agreed yesterday to decide whether the government can restrict broadcasting of seven words that crudely depict sexual and excretory organs and activities.
The Federal Communications Commission found the words to be patently offensive, a violation of contemporary community standards for the broadcast industry and impermissibly "indecent" under the communications law.
Rather than barring the words from the airwaves across the board, the FCC said they could be broadcast only during hours when children were unlikely to be in the audience.
There are few such hours, the U.S. Court of Appeals for the District of Columbia said last March, it cited studies showing that in the national radio audience the number of children doesn't fall below 1 million until 1 a.m.
In a 2-to-1 ruling now facing Supreme Court review, the appeals court invalidated the agency order, terming it "censorship, regardless of what the commission chooses to call it," and therefore contrary to the congressional prohibition of FCC regulation of programming content.
Under the commission order, the majority said, broadcasters would have to censor passages from the Bible, plays by Shakespeare, other "great works of literature" and tape recordings made by President Nixon.
Moreover, the order "is vague in that it falls to define children," the opinion continued. "Need a 19-year-old and a 7-year-old be protected from the same offensive language.
"In its effort to shield children from language which is not too rugged for many adults, the commission has taken a step toward reducing the adult option to hearing or viewing only that which is fit for children" the opinion continued. "The commission's order is a classic case of burning the house to roast the pig."
In contrast, the FCC contended is a Supreme Court brief that unlike newspapers, books and ordinary speech, broadcasting has "uniquely intrusive qualities."
"A broadcaster cannot rely upon parental scrutiny as an effective means of sorting out and excluding youthful customers," the FCC said.
Because broadcasting differs from other modes of expression, the Supreme Court should uphold the "different treatment" the agency has given it in this case, the FCC argued.
The case began with a comedy routine based on the seven words that was recorded for an album labeled, "George Carlin, Occupation: Foole."
In New York City, station WBAI, operated by the Pacitica Foundation, decided to play excerpts as part of an afternoon series on the attitudes of society toward language.
Before doing so, however, the station told listeners that if they preferred to avoid language they might find offensive, they should switch to another station for about 15 minutes. But one listener, a man who heard the excerpts while driving with his young son, complained to the FCC.
Fourteen months later, in February, 1975, the commission issued the order ruling the seven words offensive and indecent.
The appellate court majority acknowledged that the language is "crude and vulgar by most standards," but said it is "not obscene. The FCC agrees. As used, the words do not appeal to the prurient interest. They are merely crude statements and are not used to titillate."
"Furthermore," the opinion said, "the words prohibited by the order may often be connected with programs in the public interest, e.g., plays and live news broadcasts. Thus, these words quite possibly could have literary, political or artistic value. Therefore, this nonobscene speech is entitled to First Amendment protection."
In other actions involving the constitutional guarantee of freedom of expression, the Supreme Court let stand two gag orders imposed by judges presiding at criminal trials, and declined to review two decisions dealing with copyright laws.
In the background of the gag orders is a 1976 ruling by the high court that, except where there is extraordinary danger to the right of a defendant to a fair trial, a judge cannot forbid the press to publish any information legitimately in its possession.
At the same time, Justice William J. Brennan Jr. wrote in a separate opinion, officers of the court, court personnel and attorneys have "a fiduciary responsibility not to engage in public debate that will rebound to the detriment of the accused or that will obstruct the fair administration of justice."
He went on to term it "very doubtful" that judges lack power to control release of information by those persons and to discipline them for transgressions.
In one of yeaterday's cases, Cleveland, Ohio, trial judge Eugene Sawicki silenced trial participants with a gag order that neither the defense nor the prosecution had requested. He issued on opening day of the trial without a hearing as to whether it was needed, and that silenced the defendant, who also was officially counsel.
The defendant, Ashby Leach, unsuccessfully asked the Supreme Court to review the order, which he said barred him from discussing his case outside the courtroom even with his two attorneys. He said the order deprived him of freedom of speech, due process and the right to a public trial.
Leach also said he had strenuously protested Sawicki's order and emphasized that the judge had rejected out of hand requests for traditional, less drastic curbs on possible prejudicial publicity, such as sequestration of the jury or a change of venue.
Leach drew nationwide publicity in August, 1976, when he held 13 persons hostage in the offices of the Chessie System in downtown Cleveland, made a number of demands, and threatened his hostages with death for nine hours before surrendering. In April, a jury convicted him of extortion, possession of a criminal tool and assault.
The Supreme Court also rejected a challenge by press groups to a order by federal Judge J. Robert Martin Jr. of South Carolina that they termed "a blackout on all sources of information other than those obtained in the actual trial proceedings."
Martin restrained trial participants from talking to reporters - even to assure correct spelling of witnesses' names - in a widely publicized case. The chief defendant was former state Sen. J. Ralph Gasque Jr. In June, a jury convicted him of misuse of federal manpower funds.
One of the copyright cases involvlved letters written byy Julius and Ethel Rosenberg before their execution in 1953 after being convicted of supplying atomic information to the Soviet Union. For a 1973 book, "The Implosion Conspiracy," Louis Nizer used verbatim portions of 28 of the letters.
In a ruling left standing yesterday, the Second U.S. Circuit Court of Appeals held that the couple's sons, Robert and David Meeropol, were entitled to a jury trial of their claims that the book improperly appropriated the excerpts.
In the second case, the high court left standing a ruling that a newspaper called the Wall Street Transcript could not run key excerpts of copyrighted reports by financial analysts. The Second Circuit rejected the paper's claim of legitimate news coverage, accusing it of "chiseling for personal profit."