utable to both the Congress and the Commission. That Congress must share the blame for today's decision is made more clear by the fact that the Commission majority very probably would not have acted as it has absent severe Congressional pressure to do something in this area. My difficulties with the majority's reasoning are many. First, though "obscene" expression is not protected by the First Amendment, see Roth v. United States, 354 U.S. 476 (1957), expression which falls outside the obscenity category is, except in rare cases which I shall discuss, not subject to governmental regulation. The majority admits that "indecent" expression is something less than obscenity, yet the majority nevertheless asserts that it may outlaw indecent expression. Aside from constituting a blatant attempt to regulate expression which is protected by the First Amendment, the majority's approach poses additional problems because nowhere does the majority come forth with a precise definition of its concept of "indecency." The majority asserts, rather, that indecent programming is programming that meets all the indicia of obscene programming except that it need not appeal to the prurient interest. The "definition" of obscenity is, itself, very vague and ad hoc. And if obscenity is so vaguely defined, then the "indecency" varient promulgated by the majority is a hopeless blur. In such circumstances, broadcasters, perforce kept in the dark as to the types of programs they can and cannot broadcast, will obviously steer as wide of the "indecency" mark as possible, declining to carry programming which might meet the majority's amorphous "test" as well as programming which is obviously protected by the Constitution. In short, the vagueness problem inherent in the majority's approach is accompanied, as it always is in the First Amendment area, by the vice of unconstitutional overbreadth. See, e.g., my dissenting statement in WUHY-FM, 24 F.C.C. 2d 408 at 422 (1970); see also Note. Conspiracy and the First Amendment, 79 Yale L.J. 872 at 884-886 (1970). Second, the majority holds that while "Femme Forum" involved indecent programming, it also involved obscene programming-programming which the majority believes to be clearly beyond the protections afforded by the First Amendment. There are numerous problems with this aspect of the majority's opinion. The majority claims to define "obscenity" in the manner set forth by the Supreme Court in Roth, supra, and Ginzburg v. United States, 383 U.S. 463 (1966). The majority then suggests that this definition must somehow be molded to meet the peculiar nature of the broadcasting medium. In effect, the majority appears to argue that expression which would not be considered obscene if contained in a book becomes obscene on television or radio because of the "obtrusive" nature of the medium. The majority thus presents broadcasters with a "continuum definition" of obscenity; with this approach I cannot agree. If there exists a definable category of expression called "obscenity," that category does not expand as the medium through which it is communicated changes. While the Supreme Court has suggested that some forms of sexually explicit, but non-obscene, expression might be subject to regulation if that expression should assault an individual's rights to privacy, see, e.g., Redrup v. New York, 386 U.S. 757 (1967); Cohen v. California, 403 U.S. 15 (19), the Court has also made clear that such privacy rights are not "assaulted" unless the expression is communicated in a manner "so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it." Redrup, supra at 769. First Amendment rights may not be abridged, then, simply because some persons may find offensive forms of expression which they could readily avoid. On this theory, assuming for the moment that the F.C.C. should be engaged in this sort of programming regulation at all, sexually explicit, but nevertheless non-obscene material could be regulated only if the broadcast medium makes it impossible for an unwilling individual to avoid exposure to the particular expression. That is not the case when the offending speech is contained in a single, clearly identified program which may be accepted or avoided in its entirety. I believe the F.C.C. has no business regulating non-obscene material. I see great dangers in allowing this Commission to regulate even material which might properly be deemed "obscene." But in this instance the majority even failed properly to apply the Roth test to the facts before us, and thus erred in concluding that the instant programming material was obscene. Roth demands, inter alia, that the expression, taken as a whole, be patently offensive by contemporary community standards. In the instant case, the majority focuses only on portions of the challenged program, makes absolutely no attempt to delineate the relevant "community" in question, and makes no effort whatsoever to determine the nature of the relevant community's standards. As a result, it seems rather bizarre for the majority to conclude that the "Femme Forum," taken as a whole, is patently offensive to an undefined community with unknown standards when it knows nothing of (1) the whole program, (2) the community, or (3) its standards. And, indeed, such a conclusion becomes even more remarkable given the fact that WGLD-FM's "Femme Forum" has, according to at least one television columnist, become the top rated radio program in the Chicago area. See Clarence Petersen's column in the Chicago Tribune, March 12, 1973. Though a growing number of citizens are obviously not offended by this sort of programming, the F.C.C. majority has apparently determined that they ought to be. Surprisingly, Mr. Petersen reports that far from appealing to anybody's prurient interests, "Femme Forum" presents "lots of banal nonsense, lots of common sense, most of it so common as to be a bore." Mr. Petersen adds: "At times Moore [the show's announcer], former record promoter and disk jockey, asked challenging questions. At other times his questions indicated that he had not even been paying attention to what the women were saying. I suspect that even he was getting bored from time to time." And so it appears that the F.C.C. majority has vented its spleen not against "titillating" (their favorite term) sexual material capable of arousing one's prurient interest, but, rather, against mundane even bland-discussions that might offend some, strike others as bizarre, but which clearly appeal to a growing audience of listeners who are, I suppose, curious. "We feel it went beyond community standards of describing sex, nudity and the like; I suppose you might say it appealed to our prurient interest and it was definitely without redeeming social value. We liked it." 41 F.C.C. 2d Finally, while I do not believe that the F.C.C. may, constitutionally, censor non-obscene expression, and while the majority could not properly conclude on the record before it that the instant expression was obscene, I also have great doubts about whether this Commission should take action even in a case where programming might be termed obscene under the appropriate Constitutional test. Because the term "obscenity" is so elusive, so incapable of precise delineation, and because governmental regulation of so amorphous a category of expression creates a tension between social demands and the individual's most precious right to free expression, I believe the courts and not administrative agencies are more competent to determine whether particular forms of expression fall within the unprotected category. While I certainly do not condone programming such as that before us, I am nevertheless extremely reluctant to use my power as a federal official to impose my tastes upon anyone, let alone upon an entire nation. The F.C.C. majority, however, does not entertain such hesitations, preferring instead to sit as an omniscient programming review board, allegedly capable of deciding what is and is not good for the American public to see and hear. The dangers in such an approach are obvious. But they are amplified ten-fold when the F.C.C.-the agency which possesses the power to grant and deny all broadcast licenses-plays the Big Brother role. For it seems patently clear that any F.C.C. pronouncement against a particular kind of programming will cast a pall over the entire broadcasting industry-not so much because these broadcasters fear the imposition of fines, but, rather, because they fear the potential loss of their highly profitable broadcast licenses. As a result, F.C.C. regulation of obscenity is dangerous not only because this agency is, as the instant case painfully reveals, incompetent to deal properly with the problem, but also because such regulation creates a "chilling effect" of enormous proportions on all forms of broadcast expression. In a real sense, then, F.C.C. regulation in this area is akin to the imposition of prior restraints on expression absent the sorts of judicial scrutiny and due process protections which the Supreme Court has held to be necessary in this highly sensitive area. See, e.g. Freedman v. Maryland, 380 U.S. 51 (1965); Bantam Books v. Sullivan, 372 U.S. 58 (1963). In my view, only the Justice Department should be allowed to initiate proceedings of this nature, and only the courts should be allowed to resolve the ultimate question whether a given program is or is not protected by the First Amendment. Under the majority's approach, however, a judicial determination will become necessary only if Sonderling appeals. In the meantime, extensive damage will have already been done to the First Amendment. F.C.C. action in this area should be preceded, and not followed, by judicial review. For it is, after all, the courts which have enunciated the "obscenity" doctrine, it is the courts which are most competent to apply that particularly judicial doctrine, and the F.C.C., as today's decision reveals so well, is in no way comparable to a court. I dissent. CONCURRING STATEMENT OF COMMISSIONER BENJAMIN L. HOOKS . In this action, the Commission has determined to assess a statutory forfeiture against a broadcaster on the basis of its transmission of sex-oriented talk shows about which this agency has received an onslaught of complaints. My concurrence is short and obvious. The precarious balance between First Amendment rights and legitimate governmental review of expression in the public interest rests on a finely honed fulcrum. The preponderant Constitutional tilt towards the widest possible liberty in this area is weighted by nothing less than the strength of freedom. But, freedom of speech is a multi-edged sword. Brandishing its right to voice grievances, the public-the real proprietor of the national airwaves and the public's elected representatives have vociferously spoken out to this Commission against broadcast programming which it considers disgraceful, of little speech value, and wasteful of the limited radio spectrum. Indeed, contingent on a definitive court interpretation, the matter complained of could be in conflict with the federal statute prohibiting the broadcast of obscene and indecent material. (18 U.S.C. § 1464) As public servants, the Commission, while cognizant and rueful of any stigma of censorship, has a legal and moral obligation to be responsive to the causes of public outcry and a duty to act to the extent permitted by law. Mindful of all of these circumstances, yet distressed by the nature of the subject with which we deal, I find justifiable the limited action taken here for the reasons amply set forth in the majority opinion.1 1 Letter to Sonderling Broadcasting Corporation, April 11, 1973). FCC 20 (FCC 73-401, 41 F.C.C. 2d |