"Indecent" Language: A New Class of Prohibitable Speech? F.C.C. v. Pacifica Foundation

Courts in this country have long recognized that the first amendment guarantee of freedom of speech, while written in absolute terms, is not an unyielding bar to all government regulation. The basic question left unresolved, however, is under what circumstances the government may intervene on behalf of itself or its citizens to place restrictions upon the great protected right of communication. Mr. Justice Holmes, speaking for the Supreme Court in Schenck v. United States, indicated that the question was whether the words used would create a "clear and present danger" of bringing about "substantive evils that Congress has a right to prevent." Inherent in this philosophy was a balancing model which the Court still utilizes today. Under this model, constitutionally protected expression may be regulated only upon a showing by the government that a compelling, countervailing interest so dictates.